confrontation clause in Colorado

2026A defendant establishes a Confrontation Clause violation by showing that he “‘was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness,’ and thereby to expose jurors to facts from which they could ‘appropriately draw inferences’ related to the witness’s reliability.” Id. at ¶ 24, 551 P.3d 8 at 1216-17 (quoting Kinney v. People, 187 P.3d 548, 559 (Colo. 2008)).

2026A defendant establishes a Confrontation Clause violation by showing that he “‘was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness,’ and thereby to expose jurors to facts from which they could ‘appropriately draw inferences’ related to the witness’s reliability.” Id. at ¶ 24, 551 P.3d 8 at 1216-17 (quoting Kinney v. People, 187 P.3d 548, 559 (Colo. 2008)).

2017Although Goforth v. State, 70 So.3d 174 (Miss. 2011), analyzed both Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), and United States v. Owens, 484 U.S. 554 , 108 S.Ct. 838 , 98 L.Ed.2d 951 (1988), its holding was predicated on the Mississippi Constitution's confrontation clause, not the federal clause.

2017Although Goforth v. State, 70 So.3d 174 (Miss. 2011), analyzed both Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), and United States v. Owens, 484 U.S. 554 , 108 S.Ct. 838 , 98 L.Ed.2d 951 (1988), its holding was predicated on the Mississippi Constitution's confrontation clause, not the federal clause.

2024A Confrontation Clause violation may exist if a defendant “was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on 31 the part of the witness.” Kinney v. People, 187 P.3d 548, 559 (Colo. 2008) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)). ¶ 67 However, a criminal defendant’s right to cross-examination is not unlimited.

2024A Confrontation Clause violation may exist if a defendant “was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on 31 the part of the witness.” Kinney v. People, 187 P.3d 548, 559 (Colo. 2008) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)). ¶ 67 However, a criminal defendant’s right to cross-examination is not unlimited.

2024Standard of Review and Applicable Law ¶ 28 “Appellate review of a possible Confrontation Clause violation is de novo.” Bernal v. People, 44 P.3d 184, 198 (Colo. 2002).

2008In accordance with these standards, we affirm the court of appeals' holding that Pena forfeited his right of confrontation in this case. 5 "Appellate review of a possible Confrontation Clause violation is de novo.'' Bernal v. People, 44 P.3d 184, 198 (Colo.2002).

2017Under the Roberts test, the reliability of the statement could be inferred if it fell “within a firmly rooted hearsay exception” or if the statement bore “particularized guarantees of trustworthiness.” Id. at 66 , 100 S.Ct. 2531 . ¶22 The Supreme Court revisited its Confrontation Clause analysis and the Roberts test in Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004).

2017Under the Roberts test, the reliability of the statement could be inferred if it fell “within a firmly rooted hearsay exception” or if the statement bore “particularized guarantees of trustworthiness.” Id. at 66 , 100 S.Ct. 2531 . ¶22 The Supreme Court revisited its Confrontation Clause analysis and the Roberts test in Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004).

2012T72 With respect to testimonial hearsay, in People v. Fry, 92 P.3d 970, 976 (Colo.2004), the court acknowledged and applied the federal Confrontation Clause analysis of Crawford, discarding its prior approach to this Clause as a result: In light of Crawford, we reject the [Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)] reliability analysis that we adopted in [People v. Dement, 661 P.2d 675 (Colo.1983)].

1998Conversely, a particular hearsay rule may restrict evidence, which nevertheless satisfies the confrontation clause because the rule favors increased protection for the defendant. [13] In People v. Dement, 661 P.2d 675, 679-82 (Colo.1983), we followed the Supreme Court's two-part test established in Roberts for determining whether the admission of out-of-court declarations by an unavailable third party witness violates a defendant's rights under article II, section 16, of the Colorado Constitution.

2018However, no objection was made concerning defendant's rights under the Confrontation Clauses of either the Federal or Colorado Constitutions. ¶ 9 We review the preserved hearsay claim for an abuse of discretion under the harmless error standard, see People v. Smalley , 2015 COA 140 , ¶ 79, 369 P.3d 737 , but review the confrontation claim only for plain error, see People v. Vigil , 127 P.3d 916 , 929 (Colo. 2006).

2014E.g., Hagos v. People, 2012 CO 63, ¶ 14 , 288 P.3d 116 ("[Wle review all ... errors, constitutional and nonconstitutional, that were not preserved by objection for plain error."); People v. Vigil, 127 P.3d 916, 929-30 (Colo.2006) (reviewing potential Confrontation Clause violation for admission of testimonial hearsay statements for plain error when the defendant did not object to the admission of the evidence). 166 Defendant asserts that she preserved the issue of Officer Curtis's testimony regarding the EMT when counsel objected during Curtis's testimony.

2022See Hernandez, ¶ 18. 6 ¶ 14 Trial courts, however, have broad “discretionary authority over the conduct and the scope of the voir dire examination.” People v. Flockhart, 2013 CO 42, ¶ 37 ; see also People v. Harlan, 8 P.3d 448, 462 (Colo. 2000), overruled on other grounds by People v. Miller, 113 P.3d 743 (Colo. 2005).

2022See Hernandez, ¶ 18. 6 ¶ 14 Trial courts, however, have broad “discretionary authority over the conduct and the scope of the voir dire examination.” People v. Flockhart, 2013 CO 42, ¶ 37 ; see also People v. Harlan, 8 P.3d 448, 462 (Colo. 2000), overruled on other grounds by People v. Miller, 113 P.3d 743 (Colo. 2005).

2017Thus, while we agree that excessive limitation on a defendant's ability to cross-examine a witness regarding bias or prejudice could amount to a Confrontation Clause violation, see Merritt , 842 P.2d at 166 -67 , we disagree, as a factual matter, that this door was opened on redirect. ¶ 33 Second, Ewing argues that the detective's testimony misleadingly implied that he was the only person who could interview the victims.

2017Thus, while we agree that excessive limitation on a defendant's ability to cross-examine a witness regarding bias or prejudice could amount to a Confrontation Clause violation, see Merritt , 842 P.2d at 166 -67 , we disagree, as a factual matter, that this door was opened on redirect. ¶ 33 Second, Ewing argues that the detective's testimony misleadingly implied that he was the only person who could interview the victims.

2015II, § 16; Vega v. People, 893 P.2d 107, 118 (Colo. 1995). “ ‘[I]t is constitutional error to limit excessively a defendant’s cross-examination of a witness regarding the witnesses] credibility, especially cross-examination concerning the witnesses] bias, prejudice, or motive for testifying.’ ” Id. (quoting Merritt v. People, 842 P.2d 162, 167 (Colo. 1992)). ¶31 Confrontation Clause analysis focuses on the individual witness rather than the outcome of the entire trial.

2015II, § 16; Vega v. People, 893 P.2d 107, 118 (Colo. 1995). “ ‘[I]t is constitutional error to limit excessively a defendant’s cross-examination of a witness regarding the witnesses] credibility, especially cross-examination concerning the witnesses] bias, prejudice, or motive for testifying.’ ” Id. (quoting Merritt v. People, 842 P.2d 162, 167 (Colo. 1992)). ¶31 Confrontation Clause analysis focuses on the individual witness rather than the outcome of the entire trial.

2012See Ohio v. Roberts, 448 U.S. 56 , 74, 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980) ("[A] witness is not 'unavailable' for purposes of the ... exception to the confrontation requirement unless the prosecutorial authorities have made a good faith *433 effort to obtain his presence at trial." (quoting Barber v. Page, 390 U.S. 719 , 724-25, 88 S.Ct. 1318 , 20 L.Ed.2d 255 (1968) )), overruled on other grounds by Crawford, 541 U.S. at 36 , 124 S.Ct. 1354 . ¶ 77 Moreover, Pettigrew was subject to prior cross-examination at the first trial.

2012See Ohio v. Roberts, 448 U.S. 56 , 74, 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980) ("[A] witness is not 'unavailable' for purposes of the ... exception to the confrontation requirement unless the prosecutorial authorities have made a good faith *433 effort to obtain his presence at trial." (quoting Barber v. Page, 390 U.S. 719 , 724-25, 88 S.Ct. 1318 , 20 L.Ed.2d 255 (1968) )), overruled on other grounds by Crawford, 541 U.S. at 36 , 124 S.Ct. 1354 . ¶ 77 Moreover, Pettigrew was subject to prior cross-examination at the first trial.

2020Bernal v. People, 44 P.3d 184, 198 (Colo. 2002). ¶ 68 “The Sixth Amendment right to confrontation and the Fifth Amendment right to due process of law require only that the accused be permitted to introduce all relevant and admissible evidence.” People v. Harris, 43 P.3d 221, 227 (Colo. 2002); see also People v. Salazar, 2012 CO 20, ¶ 17 (same).

2007See Olden v. Kentucky, supra, 488 U.S. at 281-32 , 109 S.Ct. at 482-838 (Confrontation Clause); People v. Harris, supra, 43 P.3d at 230 (same).

2015People v. Fry, 92 P.3d 970, 980 (Colo. 2004); People v. Phillips, 2012 COA 176, ¶ 93 , 315 P.3d 136 .

2012T72 With respect to testimonial hearsay, in People v. Fry, 92 P.3d 970, 976 (Colo.2004), the court acknowledged and applied the federal Confrontation Clause analysis of Crawford, discarding its prior approach to this Clause as a result: In light of Crawford, we reject the [Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980)] reliability analysis that we adopted in [People v. Dement, 661 P.2d 675 (Colo.1983)].

2023A Confrontation Clause violation may exist where a defendant “was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” Kinney v. People, 187 P.3d 548, 559 (Colo. 2008) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)). ¶ 21 “It does not follow, of course, that every restriction on a defendant’s attempts to challenge the credibility of evidence against him, or even every erroneous evidentiary ruling having that effect, amounts to federal constitutional error.” Krutsinger v. People, 219 P.3d 1054,

2023A Confrontation Clause violation may exist where a defendant “was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” Kinney v. People, 187 P.3d 548, 559 (Colo. 2008) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)). ¶ 21 “It does not follow, of course, that every restriction on a defendant’s attempts to challenge the credibility of evidence against him, or even every erroneous evidentiary ruling having that effect, amounts to federal constitutional error.” Krutsinger v. People, 219 P.3d 1054,

2001Newton, 966 P.2d at 574 n. 18 (Colo.1998); see also People v. Drake, 785 P.2d 1253, 1256 (Colo.1989) (requiring independent evidence to show that a statement against interest that inculpated the accused was reliable, thereby implicitly recognizing that CRE 804(b)(8) is not a firmly rooted exception to the hearsay rule); People v. Fincham, 799 P.2d 419, 422 (Colo. App.1990) ("While it is true that reliability may be inferred where the evidence falls within a firmly rooted exception, a declaration against penal interest is too large a class for meaningful Confrontation Clause analysis.") (citati

2001Newton, 966 P.2d at 574 n. 13 (Colo.1998); see also People v. Drake, 785 P.2d 1253, 1256 (Colo.1989) (requiring independent evidence to show that a statement against interest that inculpated the accused was reliable, thereby implicitly recognizing that CRE 804(b)(3) is not a firmly rooted exception to the hearsay rule); People v. Fincham, 799 P.2d 419, 422 (Colo. App.1990) ("While it is true that reliability may be inferred where the evidence falls within a firmly rooted exception, a declaration against penal interest is too large a class for meaningful Confrontation Clause analysis.") (citati

2020We have leaned on federal analysis primarily where the text of the two provisions is identical or substantially similar, see, e.g., Young, 814 P.2d at 845 (“Although [U.S. Supreme Court] cases cannot control our decision because the issue before us is one of Colorado constitutional law, we are attentive to the Supreme Court’s reasoning, especially because the text of the cruel and unusual punishments clauses in the two constitutions are the same.”), and where consistency between federal and state law has been a goal of our own precedent, see, e.g., Nicholls v. People, 2017 CO 71, ¶ 19 , 396 P.

2020We have leaned on federal analysis primarily where the text of the two provisions is identical or substantially similar, see, e.g., Young, 814 P.2d at 845 (“Although [U.S. Supreme Court] cases cannot control our decision because the issue before us is one of Colorado constitutional law, we are attentive to the Supreme Court’s reasoning, especially because the text of the cruel and unusual punishments clauses in the two constitutions are the same.”), and where consistency between federal and state law has been a goal of our own precedent, see, e.g., Nicholls v. People, 2017 CO 71, ¶ 19 , 396 P.

2022See Makeen, ¶ 38. 14 ¶ 29 Garcia maintains that seating some jurors where they could not see his face was improper because he was “entitled to have the jury be able to view [his] demeanor during witness testimony.” He cites People v. Boykins, in which a division of this court concluded that “the right to cross-examine witnesses is an indispensable component of the Confrontation Clause, and includes the right of an accused to have the jury observe his or her demeanor.” 140 P.3d 87, 92 (Colo. App. 2005).

2010Assuming, without deciding, that a confrontation clause challenge can be raised in a habitual proceeding, we discern no confrontation clause violation. 1 An alleged confrontation clause violation "is subject to constitutional harmless error analysis if the error was properly preserved by objection at trial[,] and reversal is required unless the error was harmless beyond a reasonable doubt." People v. Boykins, 140 P.3d 87, 96 (Colo.App.2005).

2017We acknowledged Davis's distinction between testimonial and nontestimonial statements in Arteaga-Lansaw v. People, 159 P.3d 107, 109 (Colo. 2007), when discussing a federal Confrontation Clause claim.

2016See Arteaga- Lansaw, 159 P.3d at 111 (Confrontation Clause error was harmless beyond a reasonable doubt because the improperly admitted statement was cumulative of the testimony of three other witnesses). ¶ 50 And McFee’s threats were not the only evidence of his motive nor the only evidence that he had committed the crime.

2017Rejecting his Confrontation Clause challenge, the Court concluded that “where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.” Id. at 162 , 90 S.Ct. 1930 . ¶ 38 In Fensterer , an expert witness presented his opinion at trial, but could not recollect the basis of that opinion.

2017Rejecting his Confrontation Clause challenge, the Court concluded that “where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.” Id. at 162 , 90 S.Ct. 1930 . ¶ 38 In Fensterer , an expert witness presented his opinion at trial, but could not recollect the basis of that opinion.

2012Consequently, to the extent that [Stevens v. People, 29 P.3d 305 (Colo.2001) ] and [People v. Farrell, 34 P.3d 401 (Colo.2001) ] and any of our other prior cases employ that analysis, we overrule those cases.

2002Stevens, 29 P.3d at 314 (citing United States v. Gomez, 191 F.3d 1214, 1222-23 (10th Cir.1999)).

2001Justice Scalia concluded that the introduction at trial of a tape recording of the declarant's statement, in which he stated that the defendant committed the charged murder, was a "paradigmatic Confrontation Clause violation." Id. at 143 , 119 S.Ct. 1887 (Scalia, J., concurring).

2001Justice Scalia concluded that the introduction at trial of a tape recording of the declarant's statement, in which he stated that the defendant committed the charged murder, was a "paradigmatic Confrontation Clause violation." Id. at 143 , 119 S.Ct. 1887 (Scalia, J., concurring).

2026“A confrontation violation occurs if the defendant ‘was prohibited from engaging in otherwise appropriate cross- examination designed to show a prototypical form of bias on the part of the witness,’ which leaves the jury with a ‘significantly different impression of the witness’s credibility.’” Id. at ¶ 59 (quoting Kinney v. People, 187 P.3d 548, 559 (Colo. 2008)). ¶ 47 We review de novo a possible confrontation violation.

2013Thus, while courts have wide latitude to reasonably limit eross-examination, id. at 559 , they must "allow broad cross-examination of a prosecution witness with respect to the witness's] motive for testifying, especially ... where [her] testimony against the defendant might be influenced by a promise of, or hope or expectation of, immunity or leniency." People v. King, 179 Colo. 94, 98 , 498 P.2d 1142, 1144-45 (1972). 159 A confrontation violation oceurs if the defendant "was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the

2026See People v. McFee, 2016 COA 97, ¶ 48 (Confrontation Clause violation is harmless beyond a reasonable doubt when the evidence is cumulative and the prosecution’s evidence of guilt is overwhelming). 8 challenged statement did not “directly establish[] that [the defendant] committed or conspired to commit” the charged offense); United States v. Lage, 183 F.3d 374, 387 (5th Cir. 1999) (no Bruton violation where the challenged statement placed the defendant at the scene of the crime but was “utterly silent” as to whether he participated in it). ¶ 21 Bruton illustrates the point.

2021People v. McFee, 2016 COA 97, ¶ 28 . ¶ 39 The right of confrontation generally requires that a witness testify under oath, in open court, and face-to-face with the defendant.

2017Cf. Marshall v. People, 2013 CO 51 , ¶ 15 n.5, 309 P.3d 943 (declining to address whether the. defendant preserved a Confrontation Clause challenge because there was no confrontation error). ¶ 13 The mandatory joinder statute “seeks to prevent vexatious prosecution and harassment of a defendant by a district attorney who initiates successive prosecutions for crimes which stem from the same criminal episode.” People v. Talarico, 192 Colo. 445, 446 , 560 P.2d 90, 91 (1977); see § 18-1-408(2).

2017Cf. Marshall v. People, 2013 CO 51 , ¶ 15 n.5, 309 P.3d 943 (declining to address whether the. defendant preserved a Confrontation Clause challenge because there was no confrontation error). ¶ 13 The mandatory joinder statute “seeks to prevent vexatious prosecution and harassment of a defendant by a district attorney who initiates successive prosecutions for crimes which stem from the same criminal episode.” People v. Talarico, 192 Colo. 445, 446 , 560 P.2d 90, 91 (1977); see § 18-1-408(2).

2017And we noted in Raile v. People. 148 P.3d 126 (Colo. 2006), that we had decided Vigil (which reaffirmed Compan and its holding that the Dement-Roberts test controls the admission of nontestimonial hearsay under Colorado's Confrontation Clause) "before this Court had the benefit of the Davis decision and that we are bound to follow later decisions by the United States Supreme Court." Id. at 130 n.6 (citing Vigil, 127 P.3d at 921 ). 6 .

2016See Raile, 148 P.3d at 135 (Confrontation Clause error was harmless beyond a reasonable doubt where improperly admitted statements were similar to other statements presented at trial and statements were not critical to prosecution’s case).