Colorado Rules of Evidence: Hearsay, Shreck Experts, and Privileges

The Colorado Rules of Evidence are the Colorado Supreme Court’s rulebook for what judges and juries in state court are allowed to see and hear. Modeled on the Federal Rules of Evidence but with important Colorado-specific departures, they are organized into eleven articles covering relevance, character evidence, hearsay, expert and lay opinion, privileges, witness examination, authentication, and the best evidence rule. Rule 102 states their purpose plainly: “to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”¹

Where the Rules Apply, and Where They Don’t

Rule 101 says the rules govern proceedings in all Colorado courts, subject to the exceptions in Rule 1101. In practice that means civil actions, criminal trials, and most contempt proceedings run under the full rulebook. The privilege rules apply at every stage of every proceeding, no exceptions.²

Several categories of proceedings are outside the rules entirely:

Grand jury proceedings
Preliminary examinations in criminal cases
Sentencing hearings
Probation grant or revocation hearings
Extradition or rendition proceedings
Issuance of arrest warrants, criminal summonses, and search warrants
Bail and release proceedings
Preliminary questions of fact decided by the court under Rule 104

In special statutory proceedings, the rules fill in only where the governing statute is silent on evidence.²

Relevance and the Rule 403 Balancing Test

Everything starts with relevance. Rule 401 defines relevant evidence as anything that makes a fact of consequence more or less probable than it would be without the evidence. Rule 402 then admits all relevant evidence unless the U.S. Constitution, the Colorado Constitution, these rules, other Supreme Court rules, or a Colorado statute keeps it out. Irrelevant evidence is never admissible.¹

Rule 403 is where most hard-fought evidence rulings get decided. Even relevant evidence may be excluded if its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Trial judges have broad discretion here, and the balancing test shows up again and again whenever a party wants to keep damaging but technically relevant proof away from the jury.¹

Character Evidence and Prior Bad Acts

Rule 404 limits how much a party can tell the jury about someone’s character. The general rule: evidence of a person’s character or a particular character trait is not admissible to show that the person acted in conformity with it on a given occasion.³

There are targeted exceptions. A criminal defendant may introduce evidence of a pertinent character trait, and the prosecution may then rebut it. If the defendant puts the alleged victim’s aggressiveness or violence into evidence, the prosecution may answer with evidence of the same trait in the defendant. In homicide cases, the prosecution may introduce evidence of the victim’s peaceful character to rebut a claim that the victim struck first.³

Rule 404(b) controls prior bad acts. Evidence of other crimes, wrongs, or acts can’t come in to prove character and conformity, but it can come in for other purposes: motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In criminal cases, the prosecution must give reasonable advance notice of 404(b) evidence if the defendant asks for it.³

Hearsay and Its Exceptions

Rule 801(c) defines hearsay as an out-of-court statement offered to prove the truth of what it asserts. Rule 802 keeps hearsay out unless an exception applies under the rules, Colorado procedural rules, or state statute.¹

Statements That Aren’t Hearsay at All

Rule 801(d) treats two categories as non-hearsay even though they are out-of-court statements. Prior statements by a witness — prior inconsistent statements, prior consistent statements offered to rebut a charge of recent fabrication, and prior identifications — are not hearsay if the witness testifies at the current proceeding and is available for cross-examination about the statement. Admissions by a party-opponent are likewise not hearsay.¹

Exceptions That Apply Regardless of Availability

Rule 803 lists exceptions that work whether or not the person who made the statement is available to testify. The frequently used ones include present sense impressions, excited utterances, statements of then-existing mental or physical condition, statements made for medical diagnosis or treatment, recorded recollections, business records (records of regularly conducted activity), and public records and reports. In criminal cases, the public records exception excludes matters observed by law enforcement officers. Rule 803 also covers vital statistics, religious records, family records, ancient documents at least 20 years old, learned treatises, and judgments of previous convictions.¹

Exceptions That Require an Unavailable Declarant

Rule 804 opens up additional exceptions, but only when the person who made the statement is unavailable: excused by privilege, refusing to testify despite a court order, unable to remember the statement, dead or too ill to appear, or unlocatable despite reasonable efforts. The main 804 exceptions are former testimony (from an earlier proceeding where the opposing party had a chance to cross-examine), statements against interest, and statements of personal or family history. One Colorado-specific gap worth knowing: Rule 804(b)(2), which in the federal rules handles dying declarations, has no codified Colorado counterpart.¹

Expert Testimony: The Shreck Standard

Expert witnesses are one of the areas where Colorado most clearly parts ways with federal practice. Colorado courts do not apply the federal Daubert standard directly. Instead, they follow People v. Shreck, 22 P.3d 68 (Colo. 2001).

In Shreck, the Colorado Supreme Court rejected the older Frye “general acceptance” test as too rigid, overruling prior Colorado decisions that had applied it. The Court held that CRE 702 is the governing standard and that trial judges must act as gatekeepers, making specific findings that (1) the scientific principles underlying the testimony are reasonably reliable, (2) the witness is qualified by knowledge, skill, experience, training, or education, (3) the testimony will help the jury, and (4) the evidence satisfies Rule 403.⁴

The Court acknowledged the Daubert factors — peer review, error rates, general acceptance — but held they are neither mandatory nor exclusive in Colorado. The inquiry should be “broad in nature” and consider the “totality of the circumstances.”⁴ No single factor controls.

In People v. Martinez, 2024 CO 69, the Colorado Supreme Court added that CRE 702 neither requires nor prohibits a formal “offer and acceptance” of an expert by the court. “Qualified” in the rule refers to the witness’s own credentials, not to a procedural tender. The absence of a formal tender doesn’t automatically make expert testimony inadmissible, so long as it otherwise satisfies Shreck and CRE 702.⁵

Privileges

Colorado splits its privilege law between the rules and a statute. CRE 501 sets the general rule, but the detailed list of protected relationships lives in C.R.S. § 13-90-107.⁶ Recognized privileges include:

Marital and civil union privilege: spouses and civil union partners cannot be examined for or against each other without consent, and confidential communications made during the relationship are protected. Exceptions apply to actions between the parties, crimes committed by one against the other, and serious felonies (class 1, 2, or 3 felonies and level 1 or 2 drug felonies).
Attorney-client privilege, extending to attorneys and their legal assistants, paralegals, secretaries, and clerks.
Physician-patient privilege, covering physicians, surgeons, and registered nurses as to information acquired while treating a patient, with exceptions when the provider is being sued by the patient.
Clergy privilege for confidential communications to priests, rabbis, or ministers acting in their professional capacity.
Psychotherapist and mental health privilege, covering licensed psychologists, counselors, social workers, addiction counselors, and their staff, including group therapy settings.
Additional privileges for certified public accountants, public officers (communications made in official confidence), victim’s advocates in domestic violence and sexual assault cases, confidential communications from a minor child to a parent in the presence of certain professionals, and peer support team members for law enforcement, firefighters, and emergency medical personnel.

CRE 502, adopted by the Colorado Supreme Court in 2016, handles inadvertent waiver of attorney-client privilege and work-product protection. An inadvertent disclosure doesn’t waive the privilege if the holder took reasonable steps to prevent the disclosure and acted promptly to correct it. An intentional waiver extends to undisclosed communications on the same subject only if fairness requires it. And disclosures made in federal or other state proceedings don’t waive the privilege in Colorado if the disclosure wouldn’t have been a waiver under CRE 502 or under the law of the jurisdiction where it occurred.⁷

Impeaching Witnesses With Prior Convictions

Here is another place Colorado diverges from the Federal Rules. CRE 609 is reserved; the subject is governed by C.R.S. § 13-90-101. Under the statute, any felony conviction may be used to impeach a witness’s credibility, and the witness can be compelled to acknowledge the conviction on the stand. In civil cases, felony convictions more than five years old are inadmissible for impeachment. In criminal cases there is no time limit, and Colorado courts have upheld that distinction against equal protection challenges.⁸

Several other points are worth flagging. Misdemeanor convictions aren’t admissible for impeachment, though testimony about motive, bias, or interest remains fair game. Juvenile adjudications don’t count as criminal convictions for impeachment. Military convictions are admissible only if the offense is substantially equivalent to a Colorado felony. And unlike the federal rule, Colorado judges have no discretion to bar a qualifying felony conviction from impeachment use. If it meets the statutory criteria, it comes in.⁸

Beyond prior convictions, CRE 607 allows any party, including the one that called the witness, to attack credibility. CRE 611 gives the trial judge broad control over the mode and order of examining witnesses and presenting evidence.

Authentication and the Best Evidence Rule

Before an exhibit comes in, Article IX (Rules 901–903) requires that it be authenticated: the proponent must produce enough evidence to support a finding that the item is what the proponent claims. Rule 902 lists categories of self-authenticating documents (such as certified public records and official publications) that need no extrinsic authentication. Rule 903 does away with any requirement that a subscribing witness testify to authenticate a document unless a statute specifically requires one.⁹

Article X (Rules 1001–1008) sets the best evidence rule. To prove the contents of a writing, recording, or photograph, the original is generally required. Rule 1003 allows duplicates unless a genuine question is raised about the original’s authenticity or admitting the duplicate would be unfair. Rule 1004 permits other evidence of a document’s contents when the original has been lost or destroyed, cannot be obtained by judicial process, is in the possession of an opponent who fails to produce it, or relates to a collateral issue.⁹

Judicial Notice

Rule 201 lets a court take judicial notice of adjudicative facts that are “not subject to reasonable dispute” because they are either generally known within the court’s jurisdiction or capable of ready and accurate verification from unquestionable sources. A court may act on its own at any stage of a proceeding and must take notice if a party requests it and supplies the information. In civil cases, the court instructs the jury to accept the noticed fact as conclusive. In criminal cases, the instruction tells the jury it may, but is not required to, accept the fact as conclusive.¹

Recent Amendments

The most recent revision, Rule Change 2025(05), was adopted by the Colorado Supreme Court en banc on January 16, 2025, and took effect immediately. It touched 21 rules across multiple articles (Rules 104, 404, 411, 602, 603, 604, 606, 607, 610, 611, 612, 613, 615, 706, 801, 803, 804, 806, 902, 1004, and 1007). The changes were largely linguistic, replacing gendered pronouns with gender-neutral terminology such as “the accused,” “the witness,” “the declarant,” or “that party.”¹⁰¹¹

Help for Self-Represented Litigants

Working through the rules of evidence without a lawyer is a common challenge in Colorado courts. The Colorado Judicial Branch publishes an instructional video on evidence, provides online access to procedural rules and statutes, and staffs Self-Represented Litigant Coordinators (“Sherlocks”) at Court Resource Centers in every judicial district. Sherlocks can help people navigate the court system and locate forms, but cannot give legal advice.¹²

Under Colorado Code of Judicial Conduct Rule 2.6(A), judges may assist self-represented litigants by giving brief information about evidentiary and foundational requirements, modifying the traditional order of taking evidence, explaining legal concepts in plain language, and explaining the basis for their rulings. CRE 611 separately empowers judges to control the mode and order of proceedings, which Colorado courts have read to allow a judge to step in with questions when a self-represented party fails to elicit relevant information.¹³

1
Colorado Office of Rule & Policy Counsel. Colorado Rules of Evidence
2
H. Michael Steinberg Law Office. Colorado Rules of Evidence Part 2
3
Colorado Judicial Branch. Rule Change 2007-13
4
Casemine. People v. Shreck, No. 00SA105
5
Colorado Judicial Branch. People v. Martinez, 2024 CO 69
6
Justia. Colorado Revised Statutes Section 13-90-107
7
Colorado Judicial Branch. Rule Change 2016-03
8
Justia. Colorado Revised Statutes Section 13-90-101
9
Colorado Bar Association. Evidence in Colorado: A Practical Guide
10
Colorado Judicial Branch. Rule Change 2025(05)
11
Colorado Judicial Branch. Rule Change 2025(05) – Full Text
12
Colorado Judicial Branch. Self-Help Resources
13
Colorado Bar Association. Judicial Officers and Self-Represented Litigants