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TCL > July 2007 Issue > Court Business

July 2007       Vol. 36, No. 7       Page  137
From the Courts
Court Business

Court Business

Visit the related court’s website for complete text of rule changes or proposed rule changes issued by the court. Each court’s website includes corresponding forms, which are not printed in “Court Business,” and versions with highlights of revisions (deletions and additions).


Colorado Supreme Court Rules Committee

Notice of Hearing
Chapter 33
Colorado Rules of Evidence
Hearing to be Held Thursday, September 13, 2007, at 3:30 p.m.

The Colorado Supreme Court will conduct a hearing on proposed amendments to the Colorado Rules of Evidence regarding Rules 404, 408 and 606 on Thursday September 13, 2007, at 3:30 p.m., in the Colorado Supreme Court Courtroom, Two East 14th Avenue, Denver, Colorado. The Court also requests written public comments by any interested person on these proposed rules changes. An original and eight copies of the written comments concerning the proposals should be submitted to Susan J. Festag, Clerk of the Supreme Court, Two East 14th Avenue, Denver, Colorado 80203, no later than August 31, 2007, by 5:00 p.m. Persons wishing to participate in the hearing should so notify Ms. Festag no later than August 31, 2007.

By the Court:

Nathan B. Coats, Justice
Colorado Supreme Court


Chapter 33
Colorado Rules of Evidence
Rule 404. Character Evidence Not Admissible to Prove Conduct, Exception; Other Crimes Rule 408. Compromise and Offers to Compromise
And
Rule 606. Competency of Juror as Witness

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. In a criminal case, evidence 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. In a criminal case, evidence 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.

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rule 408. Compromise and Offers to Compromise

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a the claim which was disputed as to either validity or amount; and, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of

(2) conduct or statements made in compromise negotiations is likewise not admissible regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.

(b) Permitted uses. This rule also does not require exclusion when if the evidence is offered for another purpose, such as purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness’s bias or prejudice of a witness,; negativing negating a contention of undue delay,; or and proving an effort to obstruct a criminal investigation or prosecution.

RULE 606. Competency of Juror as Witness

(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror he is sitting as a juror. No objection need be made in order to preserve the point.

(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith,. But except that a juror may testify on the question about (1) whether extraneous prejudicial information was improperly brought to the jurors’ attention, (2) or whether any outside influence was improperly brought to bear upon any juror, or (3)  whether there was a mistake in entering the verdict onto the verdict form. Nor may his A juror’s affidavit or evidence of any statement by the juror him concerning may not be received on a matter about which the juror he would be precluded from testifying be received for these purposes.


Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2007-06
(Finalized and Effective May 18, 2007)

ISSUE PRESENTED

The requesting judicial officer is a part-time county court judge. He also maintains a private part-time law practice, for which he occasionally appears as an attorney in civil cases in the district court. Every year, the chief judge in the district enters an order authorizing the county judge to accept guilty pleas and impose sentences in class four, five and six felonies, as well as to hear other district court matters that may arise in the absence of a sitting district judge. The county judge has sole discretion to decline to exercise this authority. He has never exercised this authority in the past. The judge asks whether he may exercise this yearly authority to sit as a district judge only in criminal matters without thereby being prohibited from appearing as a lawyer in district court in his judicial district in civil matters.

CONCLUSION

The judicial officer may not both sit as a district judge on an ongoing basis in criminal matters and appear as a lawyer in that district court in civil matters.

APPLICABLE CANONS OF THE CODE OF JUDICIAL CONDUCT

Canon 2 directs that a judge should avoid impropriety and the appearance of impropriety in all of the judge’s activities in order to promote public confidence in the integrity and impartiality of the judiciary. Subsection B specifies that a judge should not convey or permit others to convey the impression that they are in a special position to influence the judge.

Canon 3 provides that the judicial duties of a judge shall take precedence over all of the judge’s other activities.

Canon 8(B) governs the activities of part-time judges; subsection (2) of that section proscribes the practice of law by a part-time judge in the court on which the judge serves or in any comparable level court in the same judicial district.

DISCUSSION

Under the Canons, a part-time judge is barred from practicing law in the court on which the judge serves or in any comparable level court in the same judicial district. The Commentary to Canon 8(B)(2), however, notes that this restriction does not apply to any temporary assignment of a part-time judge to a court of higher jurisdiction in the judicial district in which the judge serves. The question raised here is whether the prohibition contained in Canon 8(B)(2) applies to a county court judge who practices civil law in district court and who is authorized by order on a yearly basis to hear criminal matters in the district court in the absence of a sitting district judge.

In the Board’s view, the judge may not properly preside over cases in the district court, pursuant to an ongoing order granting such authority, while continuing to practice in that court. To allow a judge to preside over cases while practicing in the same court would erode public confidence in the integrity and impartiality of the judiciary, in contravention of Canon 2. As other jurisdictions have cautioned, a part-time judge’s status as a lawyer practicing in the same court may create the perception that the lawyer has a special stature in the court, or that special advantages or preferential treatment may be conferred upon that lawyer by court employees and judicial staff. See, e.g., Ms. Ad. Op. 38; S.C. Ad. Op. 11-1987; Az. Ad. Op. 92-16. Such concerns would not be alleviated even if the lawyer were to limit his practice to civil matters exclusively and were to sit only in district court criminal matters.

Although the judge is precluded from concurrently practicing in and presiding over the same court on an ongoing and as-needed basis pursuant to an order of his chief judge, we distinguish this situation from temporary judicial assignments discussed in the commentary to Canon 8(B)(2). Here, the judge has been issued a blanket grant of authority for one year to hear district court cases. Should the judge act on that authority, he would be serving on the district court in an ongoing, continuous, part-time capacity. In contrast, pro tempore part-time judges, who sit by temporary assignment for short and finite periods of time or who sit sporadically pursuant to one-time appointments, are specifically exempted from the limitations on practice set forth in Canon 8(B)(2). By comparison, because this judge could, at any time over the course of the year, hear district court cases were he called upon to do so, the judge would be serving on the district court on a continuing, albeit part-time, basis for an entire year without further action by the appointing chief judge, and would therefore be subject to the prohibitions of Canon 8(B)(2). Thus, should he wish to hear district court cases pursuant to this yearly grant of authority, the judge must refrain from practicing in the district court in both civil and criminal matters. Canon 3.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 18th day of May 2007.

Barbara Crowfoot (citizen member)
Hon. Martin Foster Egelhoff (judge member)
Daniel S. Hoffman, Esq. (attorney member)
Hon. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Prof. Emeritus James E. Wallace (law professor member)
Hon. John R. Webb (judge member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)


Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2007-07
(Finalized and Effective May 29, 2007)

ISSUE PRESENTED

The requesting judge sits on the district court of an urban district. The judge has been asked to serve as a voting member on a local community board, which provides integrated services to children and families as well as engages in legislative advocacy to encourage legislation benefiting children and family services on the local, state, or federal level. The judge questions whether participation on the board violates the applicable canons of judicial conduct. The judge also asks whether it would be appropriate to serve on the board as a non-voting member.

The board is composed of two specific groups: an integrated services committee and a legislative advocacy committee. Each committee meets regularly to address its respective issues and then brings those issues to the full board for reporting or voting on policy decisions or action. The integrated services committee focuses on how to integrate and efficiently provide services for children and their families. The legislative advocacy committee focuses on monitoring legislation as well as supporting or encouraging legislation that directly affects children and family services on the local, state or federal level. The board also oversees the reception and distribution of funds to governmental agencies who could be servicing children or families that appear before the judge in dependency and neglect cases.

CONCLUSION

The judge should not accept the board position even in a non-voting capacity. The judge’s membership on the board would violate Canon 7 prohibiting legislative advocacy on the part of the judiciary because of the board’s involvement with matters beyond "measures to improve the law, the legal system, the administration of justice, or the role of the judiciary as an independent branch of government."

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICAL CONDUCT

Canon 4 provides that a judge may consult with, or appear at a public hearing before an executive or legislative body or an official thereof, on matter concerning the law, the legal system, the administration of justice or the role of the judiciary as an independent branch without our system of government.

Canon 5B encourages a judge to participate in civic and charitable activities which do not reflect adversely on the judge’s impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director, trustee, or nonlegal advisor of an education, religious, charitable, fraternal, social, or civil organization if the organization is not conducted for the economic or political advantage of its members, and provided that the organization is not engaged in proceedings that would ordinarily come before the judge or regularly engage in adversary proceedings in any court.

Canon 7 directs that a judge should refrain from political activity inappropriate to his or her judicial office. The Canon enumerates several categories of political activity from which the judge should refrain and also states that a judge shall not "engage in any other political activity except on behalf of measures to improve the law, the legal system, the administration of justice, or the role of the judiciary as an independent branch of government."

DISCUSSION

The Board has issued several opinions involving substantially similar facts to the present request. Therefore, in answering this request, the Board incorporates the reasoning employed in opinions 2006-08, 2007-07, and 2007-03.

For reasons set forth in those opinions, the local community board’s dual functions of integrated services and legislative advocacy are problematic. If the community board involved only integrated services, the matter would likely be in compliance with canon 5B, which encourages judges to participate in "civic, charitable, educational, and similar organizations, provided that such participation does not adversely reflect upon the judge’s impartiality, and provided that the organization does not engage in adversary proceedings likely to bring it before the requesting judge or any other court." See opinion 2007-03. However, the purpose of the board’s legislative advocacy committee is to advocate on behalf of children and their families, and such advocacy does not involve "measures to improve the law, the legal system, the administration of justice, or the role of the judiciary as an independent branch of government." Because the community board’s functions include legislative advocacy beyond matters to improve the law, the requesting judge’s participation on the board clearly falls within the conduct prohibited by Canon 7. See opinion 2006-08.

Serving on the community board as a non-voting member would not avoid the prohibition in Canon 7. Even such membership could be perceived as the judge lending the prestige of judicial office to prohibited political activity.

The board recommends that the requesting judge not accept the board position.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 29th day of May 2007.

Barbara Crowfoot (citizen member)
Hon. Martin Foster Egelhoff (judge member)
Daniel S. Hoffman, Esq. (attorney member)
Hon. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Prof. Emeritus James E. Wallace (law professor member)
Hon. John R. Webb (judge member)

Eileen M. Kiernan-Johnson, Esq. (staff to the board)

© 2007 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=2007.


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