CO Code § 16-10-201 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 10 - Jury Trials|Part 2 - Evidence of Inconsistent Statements - Variance|§ 16-10-201. Inconsistent Statement of Witness - Competency of Evidence

  Where a witness in a criminal trial has made a previous statement inconsistent with his testimony at the trial, the previous inconsistent statement may be shown by any otherwise competent evidence and is admissible not only for the purpose of impeaching the testimony of the witness, but also for the purpose of establishing a fact to which his testimony and the inconsistent statement relate, if:   The witness, while testifying, was given an opportunity to explain or deny the statement or the witness is still available to give further testimony in the trial; and    The previous inconsistent statement purports to relate to a matter within the witness's own knowledge.        History. Source: L. 72: R&RE, p. 238, § 1. C.R.S. 1963: § 39-10-201 .    ANNOTATION   Law reviews. For article, “Hearsay in Criminal Cases Under the Colorado Rules of Evidence: An Overview”, see 50 U. Colo. L. Rev. 277 (1979). For article, “Prior Inconsistent Statements”, see 17 Colo. Law. 1977 (1988).   This section is constitutional. People v. Mulligan, 193 Colo. 509 , 568 P.2d 449 (1977).   This section is not unconstitutional as ex post facto legislation. People v. Bastardo, 646 P.2d 382 (Colo. 1982).   This section changes the common-law rule that one could not impeach his own witness absent surprise or hostility and, in a criminal trial, if a witness has made a prior inconsistent statement purporting to relate to a matter within his knowledge, that fact may be shown where the safeguards of subsection (1)(a) are met. People v. Stewart, 39 Colo. App. 142, 568 P.2d 65 (1977).   This section, rather than C.R.E. 613, controls the admissibility of prior inconsistent statements for substantive purposes in a criminal case. Montoya v. People, 740 P.2d 992 (Colo. 1987).   Comparing this section to C.R.E. 613, it is clear that the rule is directed to situations in which a prior inconsistent statement is used for impeachment purposes only, but this section eliminates the hearsay impediment to using prior inconsistent statements for proving the truth of matters asserted so long as statutory foundation requirements for admissibility of the evidence have been satisfied. People v. Madril, 746 P.2d 1329 (Colo. 1987); People v. Fisher, 904 P.2d 1326 (Colo. App. 1994); People v. Candelaria, 107 P.3d 1080 (Colo. App. 2004), aff'd in part and rev'd in part on other grounds, 148 P.3d 178 (Colo. 2006).   The general rule, prior to the adoption of C.R.E. 806, was that inconsistent statements used to impeach a witness were not admissible unless the witness had been asked about the time and place and to whom the statement was made. People v. Madonna, 651 P.2d 378 (Colo. 1982).   Under this section neither surprise nor hostility is required to impeach one's own witness. People v. Mulligan, 193 Colo. 509 , 568 P.2d 449 (1977).   Once the statutory foundation has been laid, a witness's prior inconsistent statements become admissible without a showing of surprise or hostility. People v. Pepper, 193 Colo. 505 , 568 P.2d 446 (1977).   If prior statements of a witness appear inconsistent and the two statutory conditions are adequately established, this section mandates admission of prior inconsistent statements even as against a party's own witness, whether that party be the prosecution or the defense. People v. Grant, 40 Colo. App. 46, 571 P.2d 1111 (1977).   When defendant takes stand in own defense, he becomes a “witness” within the meaning of this section. People v. Evans, 630 P.2d 94 (Colo. App. 1981).   Requirements of section held met. Where defendant's counsel declined to cross-examine the witness, and at the close of his testimony the court specifically instructed the witness to remain available for recall, the requirements of this section were satisfied. People v. Grant, 40 Colo. App. 46, 571 P.2d 1111 (1977).   Requirements for admission of evidence of prior inconsistent statement. Evidence that a witness made a prior inconsistent statement is admissible if the statement is inconsistent, the witness is given an opportunity to explain or deny the statement or is available for recall, the statement purports to relate to a matter within the witness's personal knowledge, and the evidence offered to prove that the prior inconsistent statement was made is “otherwise competent”. People v. Card, 42 Colo. App. 259, 596 P.2d 402 (1979); People v. Candelaria, 107 P.3d 1080 (Colo. App. 2004), aff'd in part and rev'd in part on other grounds, 148 P.3d 178 (Colo. 2006).   Prior inconsistent statement properly admissible under this section for both substantive and impeachment purposes where witness was still testifying when the court ruled on admissibility of statement and so had opportunity to explain prior statement, and where witness was testifying regarding matters within his own knowledge. People v. Jenkins, 768 P.2d 727 (Colo. App. 1988); People v. Fisher, 904 P.2d 1326 (Colo. App. 1994).   Statements obtained in violation of Miranda admissible for impeachment only. Prior inconsistent statements obtained in violation of Miranda are competent only to the extent that they are introduced for purposes of impeachment; they are not admissible as substantive evidence of guilt. People v. Evans, 630 P.2d 94 (Colo. App. 1981).   Where statement admitted for impeachment only, instruction to that effect required. If the court concludes that a prior inconsistent statement may not be offered for the truth of the fact to which it relates, but still may be used for the limited purpose of impeachment, then an instruction to that effect should be given contemporaneously, thus limiting the jury's consideration of the specific evidence to impeachment of the witness. People v. District Court, 195 Colo. 570 , 580 P.2d 388 (1978).   Witness's memory loss regarding prior inconsistent statements. Where a witness takes the stand and is available for cross-examination, the witness's actual or feigned memory loss even if memory loss is total regarding prior inconsistent statements does not violate a defendant's confrontation right. People v. Pepper, 193 Colo. 505 , 568 P.2d 446 (1977).   Where witness denied or could not recall any participation by defendant in the alleged drug transaction, the trial court properly allowed the prosecution to bring witness's earlier contradictory statements to her attention after laying a proper foundation under this section. People v. Aguirre, 839 P.2d 483 (Colo. App. 1992).   Inability to remember statement deemed denial thereof. For the purpose of introducing the prior testimony of a witness, the witness's inability to remember a statement is tantamount to a denial that he made the statement. People v. Baca, 633 P.2d 528 (Colo. App. 1981); People v. Leverton, 2017 COA 34 , 405 P.3d 402.   Evidence of prior consistent statements may be used only to rebut prior inconsistent statements. People v. Fletcher, 37 Colo. App. 173, 546 P.2d 980 (1975), rev'd on other grounds, 193 Colo. 314 , 566 P.2d 345 (1977).   In contrast to the common-law rule, this section does not require the predicate of hostility or surprise. People v. Hawthorne, 190 Colo. 437 , 548 P.2d 124 (1976).   This section prefaces admission of statement admitted at prior trial of witness upon a sequence of events. First, the witness must have made a previous statement, and second, the previous statement must be inconsistent with the testimony of the witness at trial. People v. Smith, 192 Colo. 271 , 559 P.2d 221 (1976).   Where the codefendant made no statement at trial, the requirements of the statute were not met. Consequently, this section is inapposite. People v. Smith, 192 Colo. 271 , 559 P.2d 221 (1976).   When a defendant does not testify, the defendant's voluntary, unwarned custodial statements may not be used either to rebut the defendant's theory of defense or to impeach a witness other than the defendant. People v. Trujillo, 49 P.3d 316 (Colo. 2002) (following James v. Illinois, 493 U.S. 307 (1990)).   When mandate of section fulfilled. The mandate of this section is adequately fulfilled if from all the circumstances it appears that the prior statement was inconsistent and the statutory conditions were adequately established. People v. Bastardo, 191 Colo. 521 , 554 P.2d 297 (1976).   Court is not required to make certain findings. The court is not required to make findings that proffered statements are in fact inconsistent, that they are based on the direct observations of the witness, and that they are not the result of police coercion or threats of prosecution. People v. Bastardo, 191 Colo. 521 , 554 P.2d 297 (1976).   Court erred in denying defendant's request to admit testimony regarding prior inconsistent statements made by the victim. The foundational requirements of this section were met because the victim remained available to testify and the inconsistent statements related to matters within her knowledge. The error was harmless since other admitted evidence questioned the victim's credibility. People v. Komar, 2015 COA 171 M, 411 P.3d 978.   Trial court did not err in not holding a hearing, sua sponte, on issue of whether informant's consent to electronic monitoring was obtained by coercion where the trial court held it was not satisfied that the government or law enforcement authorities coerced the informant in any way and that finding was made with ample support. People v. Moltrer, 893 P.2d 1331 (Colo. App. 1994).   Trial court did not err in applying the provisions of this section to summaries of electronically monitored conversations where informant was explicitly advised that she could be recalled to testify and yet she persisted in her testimony that she remembered nothing of the transaction, the statement purported to be a matter within the informant's own knowledge, and she was available for cross-examination. People v. Moltrer, 893 P.2d 1331 (Colo. App. 1994).   Application of this section in allowing prosecution to impeach its own witness with prior inconsistent statements was not a violation of right to confront accuser, to assistance of counsel, to appear when depositions against one were taken, or to due process of law. People v. Bastardo, 191 Colo. 521 , 554 P.2d 297 (1976).   Court did not abuse discretion in excluding videotape of grandmother's testimony where grandmother was confronted with inconsistent statements and she either explained the statements or conceded to the prior inconsistent statements on cross-examination. People v. Salas, 2017 COA 63 , 405 P.3d 416.   Applied in People v. Norwood, 37 Colo. App. 157, 547 P.2d 273 (1975); People v. Lambert, 40 Colo. App. 84, 572 P.2d 847 (1977); Union Supply Co. v. Pust, 196 Colo. 162 , 583 P.2d 276 (1978); People v. Esquibel, 43 Colo. App. 191, 599 P.2d 981 (1979); People v. Lopez, 43 Colo. App. 493, 605 P.2d 69 (1979); People v. Small, 631 P.2d 148 (Colo. 1981); People v. Christian, 632 P.2d 1031 (Colo. 1981); People v. Montoya, 703 P.2d 606 (Colo. App. 1985); People v. Banks, 2012 COA 157 , 412 P.3d 417, aff'd in part and rev'd in part on other grounds sub nom. People v. Tate, 2015 CO 42, 352 P.3d 959.