Colo. R. Evid. 613
Where the witness denies or does not remember making the prior statement, extrinsic evidence, such as a deposition, proving the utterance of the prior evidence is admissible. However, if a witness admits making the prior statement, additional extrinsic evidence that the prior statement was made is inadmissible.
Denial or failure to remember the prior statement is a prerequisite for the introduction of extrinsic evidence to prove that the prior inconsistent statement was made.
CRE 613
Committee Comment
Concerning prior statements of witnesses, the Colorado Rule of Evidence as it now exists is set forth in Transamerica Insurance Co. v. Pueblo Gas & Fuel Co., 33 Colo. App. 92, 95, 519 P.2d 1201, 1203 (1973).
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). For article, "Rules 801 and 613: Evidentiary Uses of Pleadings Filed in Other Cases", see 21 Colo. Law. 2389 (1992). Comparing this rule to § 16-10-201 , it is clear that this rule is directed to situations in which a prior inconsistent statement is used for impeachment purposes only, but § 16-10-201 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). No need to prove admitted contradictory statements. Where an attempt is made to impeach a witness through a prior statement and the witness admits having made the contradictory statement in question, there is no necessity for proving it, and the statement itself is inadmissible. Walker v. People, 175 Colo. 173, 489 P.2d 584 (1971). When prosecution asks impeachment questions that imply witness has changed his story, but does not offer extrinsic evidence to prove the making of those statements, admission of that questioning is not plain error. This rule allows the prosecution to offer extrinsic evidence to prove the disputed point, but does not require it. People v. Sandoval-Candelaria, __ P.3d __ (Colo. App. 2011). Witness may be impeached without prior interrogation where witness contradicted by inconsistent actions. The rule that a witness cannot be impeached by showing he has made statements at another time inconsistent with his testimony without a foundation being laid by interrogating the witness does not apply where the attempt to contradict the witness merely consists of showing acts and circumstances inconsistent with his testimony. People v. Hutto, 181 Colo. 279, 509 P.2d 298 (1973). Prosecution may use another portion of same testimony used by defense to impeach. Where the defense counsel tries to impeach on only a portion of prior testimony in an attempt to show an inconsistency or contradiction, he waives any objection to the prosecution's using another portion of the same testimony in order to show that in its totality the testimony was not actually inconsistent. People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975). Deposition used for impeachment purposes is always admissible under rules of evidence to discredit witness, even if opposing party was not represented at deposition, if it is relevant, material, and not collateral. Appel v. Sentry Life Ins. Co., 739 P.2d 1380 (Colo. 1987). Although this rule was an inappropriate vehicle for admission of prior inconsistent statement, evidence held properly admissable under § 16-10-201 , and defendant's conviction would not be overturned. People v. Jenkins, 768 P.2d 727 (Colo. App. 1988). The court need not determine that the prior inconsistent statement was voluntary before permitting counsel to cross-examine a witness concerning the prior statement. People v. Ball, 821 P.2d 905 (Colo. App. 1991). A specific exception to the foundational requirements of CRE 613 is created by CRE 806. Thus, where a transcript of a witness' testimony at the first trial was admitted into evidence at the second trial, testimony of a police detective as to inconsistent statements made by the witness were admissible without the witness first having opportunity to explain the prior inconsistent statements. People v. Ball, 821 P.2d 905 (Colo. App. 1991). Applied in City of Gunnison v. McCabe Hereford Ranch, 702 P.2d 768 (Colo. App. 1985).