Colorado Criminal Law: Attacking the Credibility of the Accused – Defendant – The Law

Colorado Criminal Law: Attacking the Credibility of the Accused – Defendant – The Law

by Denver Colorado Criminal Defense Lawyer H. Michael Steinberg

In Colorado, the viability of a Defendant is based upon their credibility on the witness stand. The law that governs the cross examination of the witness is found at CRS ˜ 13-90-101. That law defines generally who shall be competent to testify at trials.

13-90-101. Who may testify–interest

All persons, without exception, other than those specified in sections 13-90-102 to 13-90-108 may be witnesses. Neither parties nor other persons who have an interest in the event of an action or proceeding shall be excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious belief. In every case the credibility of the witness may be drawn in question, as now provided by law, but the conviction of any person for any felony may be shown for the purpose of affecting the credibility of such witness. The fact of such conviction may be proved like any other fact, not of record, either by the witness himself, who shall be compelled to testify thereto, or by any other person cognizant of such conviction as impeaching testimony or by any other competent testimony. Evidence of a previous conviction of a felony where the witness testifying was convicted five years prior to the time when the witness testifies shall not be admissible in evidence in any civil action.

In every case, the credibility of any witness may be attacked. This includes questioning the witness’s credibility because of a prior felony conviction.

The prior felony conviction can be based on a guilty plea, and can be used to attack a witness regardless of whether a sentence was imposed.

The conviction may be also be used at trial even though an appeal of the felony conviction is pending.

At trial only the name, nature, and date of the felony conviction are admissible, but additional cross examination into further details of the conviction is well within the trial court’s discretion.

The Colorado Court of Appeals underscored the mandatory nature of the statute in Clark v. Bohling.

In the Clark case, the defendant was sued in civil court for assault and battery. At trial, the plaintiff attempted to elicit testimony about the defendant’s prior felony conviction for second-degree assault. The trial court excluded the evidence. On appeal, the plaintiff contended that the trial court improperly excluded the prior felony conviction.

The Court of Appeals agreed – saying the following in their decision:

In the present case, [the defendant’s] prior felony conviction arose out of the same circumstances upon which the civil action was brought. However, the statute itself makes no distinction between a conviction which results from the same set of facts. Without such a legislative directive, we must construe the statute in accordance with its plain language. Therefore, the trial court was without discretion to foreclose the use of [the defendant’s] prior felony conviction, and accordingly, it was error to exclude it.

The Colorado Supreme Court had earlier reached a similar result in a criminal case, People v. Yeager. The defendant was convicted of theft. On appeal, the defendant argued that the trial court committed error by permitting the prosecution to elicit on cross-examination the fact that the defendant had two prior felony convictions. Although the evidentiary issue involved the use of prior felony convictions in a criminal case, and presented a slightly different question, the Court rejected the argument that the trial court has discretion to suppress a witness’s prior felony convictions:

[T]he “may” in the statute does not bespeak a grant of permission or discretion to the trial judge to receive or reject the proof. On the contrary, the parties are invested with the option and if it is exercised the examination must be allowed or the record of conviction received when offered.

Notwithstanding these cases, there is one significant exception to the CRS ˜ 13-90-101 rule. Under the statute, “[e]vidence of a previous conviction of a felony where the witness testifying was convicted five years prior to the time when the witness testifies shall not be admissible in evidence in any civil action.” In the case of a guilty plea, the five years runs from the time the guilty plea was accepted.

In Havens v. Hardesty, the Colorado Court of Appeals held that trial courts must strictly apply this five-year limitation. The plaintiff in Havens brought a civil action against the defendant for false arrest and imprisonment. After a jury verdict was entered against the defendant, he appealed the trial court’s refusal to allow the introduction of evidence as to the plaintiff’s prior felony conviction. The trial court had refused the evidence because the conviction occurred more than five years before the witness had testified in court. Rejecting the defendant’s argument, the Court of Appeals stated that the language of the statute is mandatory, not discretionary. The court held that the trial court correctly excluded the evidence.

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