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TCL > April 2003 Issue > Court Business

The Colorado Lawyer
April 2003
Vol. 32, No. 4 [Page  115]

© 2003 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

All material from The Colorado Lawyer provided via this World Wide Web server is copyrighted by the Colorado Bar Association. Before accessing any specific article, click here for disclaimer information.

From the Courts
Court Business

Court Business

Supreme Court Rules Committee

Rule Change #2002(5)
Colorado Rules of Evidence Chapter 33
Rules 103(a), 404(a), 701, 703, 803(6), and 902
Amended and Adopted

Rule 103. Rulings On Evidence

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

Rule 404. Character Evidence Not Admissible
To Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same or if evidence of the alleged victim’s character for aggressiveness or violence is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(3) Character of witness. Evidence of the character of a witness as provided in Rules 607, 608, and 13-90-101.

Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) No Change
(2) No Change
(3) No Change
(4) No Change
(5) No Change
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(7) No Change
(8) No Change
(9) No Change
(10) No Change
(11) No Change
(12) No Change
(13) No Change
(14) No Change
(15) No Change

Rule 902. Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) No Change
(2) No Change
(3) No Change
(4) No Change
(5) No Change
(6) No Change
(7) No Change
(8) No Change
(9) No Change
(10) No Change
(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by an affidavit of its custodian or other qualified person, in a manner complying with any Colorado statute or rule prescribed by the Colorado Supreme Court, certifying that the record–
(a) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(b) was kept in the course of the regularly conducted activity; and
(c) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and affidavit available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
(12) Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record–
(a) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(b) was kept in the course of the regularly conducted activity; and
(c) was made by the regularly conducted activity as a regular practice.

The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

Amended and Adopted by the Court En Banc June 20, 2002.

By the Court:

Nathan B. Coats
Justice, Colorado Supreme Court

Amended Order To
Rule Change #2002(5)
Colorado Rules of Evidence Chapter 33
Rules 103(a), 404(a), 701, 703, 803(6) and 902

Amended to indicate that these rule changes are effective July 1, 2002.

By the Court:

Nathan B. Coats
Justice, Colorado Supreme Court

Rule Change 2003(1)
The Colorado Rules of Civil Procedure
Chapter 5. Trials
Rule 47. Jurors
Amended and Adopted

The following rules are amended and adopted as of February 19, 2003:

Rule 47. Jurors

(a) [No Change]

(b) Alternate Jurors. The court may direct that one or two jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. An alternate juror who does not replace a principal juror shall not be discharged until the jury renders its verdict or until such time as determined by the court. If the court and the parties agree, alternate jurors may deliberate and participate fully with the principal jurors in considering and returning a verdict. If one or two alternate jurors are called each side is entitled to one peremptory challenge in addition to those otherwise allowed. The additional peremptory challenge may be exercised as to any prospective juror.

(c) – (t) [No Change]

(u) Juror Questions. Jurors shall be allowed to submit written questions to the court for the court to ask of witnesses during trial, in compliance with procedures established by the trial court. The trial court shall have the discretion to prohibit or limit questioning in a particular trial for good cause.

Adopted by the Court, En Banc, February 19, 2003, effective July 1, 2003.

By the Court:

Rebecca Love Kourlis
Justice, Colorado Supreme Court

Rule Change 2003(2)
The Colorado Rules of Criminal Procedure
Chapter 29. Colorado Rules of Criminal Procedure
Rule 24. Trial Jurors
Adopted

The following rule is adopted as of February 19, 2003:

Rule 24. Trial Jurors

(a) – (f) [No Change]

(g) Juror Questions. Jurors shall be allowed to submit written questions to the court for the court to ask of witnesses during trial, in compliance with procedures established by the trial court. The trial court shall have the discretion to prohibit or limit questioning in a particular trial for reasons related to the severity of the charges, the presence of significant suppressed evidence or for other good cause.

Adopted by the Court, En Banc, February 19, 2003, effective July 1, 2004.

Justice Martinez and Justice Rice would not adopt the rule.

By the Court:

Rebecca Love Kourlis
Justice, Colorado Supreme Court

Rule Change #2003(3)
Chapter 32. Colorado Appellate Rules
Original Jurisdiction: Rule 21
Jurisdiction on Writ of Certiorari: Rule 51
Amended and Adopted

ORIGINAL JURISDICTION

Rule 21. Procedure in Original Actions

(a) through (b) [No Change]

(c) Docketing of Petition and Fees; Form of Pleadings; Briefs. Upon the filing of a petition for a rule to show cause, petitioner shall pay to the clerk of the Supreme Court the docket fee of $225.00. All papers filed under this rule shall comply with C.A.R. 32.

(d) through (n) [No Change]

JURISDICTION ON WRIT OF CERTIORARI

Rule 51. Review on Certiorari—How Sought

(a) [No Change]

(b) Appearance and Docket Fee. Upon the filing of the petition and the certified transcript of the record, counsel for the petitioner shall enter an appearance and pay the docket fee of $225.00, of which $1.00 shall be transferred to the state general fund as a tax levy pursuant to section 2-5-119, C.R.S. The case shall then be placed in the certiorari docket.

(c) [No Change]

(d) Docket Fee. Upon entry of appearance, counsel for respondent shall pay the docket fee of $115.00.

Amended and Adopted by the Court En Banc February 27, 2003, effective March 3, 2003.

By the Court:

Mary J. Mullarkey
Chief Justice, Colorado Supreme Court

© 2003 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2003.


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