Colo. R. Evid. 803 (2026)

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Spontaneous present sense impression. A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition.

COMMITTEE COMMENT

The change reflected above was based on the was felt that the requirements set forth in that fact that neither immediacy nor spontaneity opinion constitute a greater guarantee of trustwould be guaranteed by the Federal rule. Colo- worthiness than the Federal rule, i.e., spontanerado case law requires that a present sense im- ity is the most important factor governing trustpression be instinctive and spontaneous in order worthiness. This is especially true when there is to be admissible. See Denver City Tramway Co. no provision that the declarant be unavailable as v. Brumley, 51 Colo. 251, 116 P. 1051 (1911). It a witness.

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(Federal Rule Identical.)

(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

(Federal Rule Identical.)

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(Federal Rule Identical.)

COMMITTEE COMMENT

See: Houser v. Eckhardt, 168 Colo. 226, 450 C.R.S. (Workmen’s Compensation Act of P.2d 664 (1969); Ingles v. People, 90 Colo. 51, Colorado). 6 P.2d 455 (1931); and § 8-53-103(2)(a) & (b),

(5) Recorded recollection. A past recollection recorded when it appears that the witness once had knowledge concerning the matter and; (A) can identify the memorandum or record, (B) adequately recalls the making of it at or near the time of the event, either as recorded by the witness or by another, and (C) can testify to its accuracy. The memorandum or record may be read into evidence but may not itself be received unless offered by an adverse party.

COMMITTEE COMMENT

The change reflected above was made be- shown as a preliminary to use of recorded reccause the Federal rule is more restrictive than ollection. Jordan v. People, 151 Colo. 133, 376 the Colorado rule, which does not require ab- P.2d 699 (1962). sence of a present recollection to be expressly

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term ‘‘business’’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(Federal Rule Identical.)

COMMITTEE COMMENT

The rule makes no reference to any objective Colo. 394, 435 P.2d 395 (1967); Rocky Mounstandard of trustworthiness, e.g., regularity with tain Beverage v. Walter Brewing Company, 107 which records are kept. See Colorado cases: Colo. 63, 108 P.2d 885 (1941); Hobbs v. Breen, Patterson v. Pitoniak, 173 Colo. 454, 480 P.2d 74 Colo. 277, 220 P. 997 (1923); Powell v. 579 (1971); Moseley v. Smith, 170 Colo. 177, Brady, 30 Colo. App. 406, 496 P.2d 328 (1972). 460 P.2d 222 (1969); Seib v. Standley, 164

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

(Federal Rule Identical.)

(8) Public records and reports. Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law.

(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(Federal Rule Identical.)

COMMITTEE COMMENT

This rule is somewhat broader than the pro- evidentiary use of the book of marriages pro-visions of § 25-2-117, C.R.S., and respecting vided in § 90-1-20, C.R.S. 1963, was repealed marriage records is desirable because the in 1973.

(10) Absence of a Public Record. Testimony - or a certification under Rule 902 - that a diligent search failed to disclose a public record or statement if:

(A) the testimony or certification is admitted to prove that

(i) the record or statement does not exist; or

(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in

writing within 7 days of receiving the notice - unless the court sets a different time for the notice or the objection.

COMMITTEE COMMENT

The Committee recommended adoption of low the identical amendment to F.R.E. 803(10) this amended version of C.R.E. 803(10) to fol- which took effect on December 1, 2013.

(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(Federal Rule Identical.)

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(Federal Rule Identical.)

(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(Federal Rule Identical.)

COMMITTEE COMMENT

The age of the record or regularity of keeping are immaterial to admissibility. The content of fact is not limited to pedigree or genealogy.

(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded or filed document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

COMMITTEE COMMENT

The generic term ‘‘property’’ used in the Fed- cable to personal property under Colorado law: eral rule indicates an intent that the rule apply the Uniform Commercial Code, the Colorado to documents relating to interests in both real Rules of Civil Procedure, and § 30-10-103, property and personal property. The term C.R.S., all refer to ‘‘filing’’ documents affecting ‘‘filed’’ has been added to render the rule appli- an interest in personal property.

(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(Federal Rule Identical.)

COMMITTEE COMMENT

The rule extends admissibility beyond case 122, 34 P. 763 (1893); Wright v. People in the law and statutes. E.g., McClure v. Board of Interest of Rowe, 131 Colo. 92, 279 P.2d 676 Commissioners of La Plata County, 19 Colo. (1955); Michael v. John Hancock Mutual Life

Insurance Co., 138 Colo. 450, 334 P.2d 1090 are §§ 38-35-102, 38-35-104, 38-35-105, 38- (1959). Statutes more restrictive than the rule 35-107, and 38-35-108, C.R.S.

(16) Statements in ancient documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.

(Federal Rule Identical.)

COMMITTEE COMMENT

The rule liberalizes the hearsay exception for ment to twenty years from thirty years. For ancient documents by eliminating proof of ex- Colorado authorities on the subject, see ecution (see general statement for this principle McGary v. Blakeley, 127 Colo. 495, 258 P.2d in 32A C.J.S., Evidence, Sec. 744, page 32) and, 770 (1953) and § 38-35-107, C.R.S. further, reduces the required age of such docu-

(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(Federal Rule Identical.)

COMMITTEE COMMENT

Colorado authorities affecting this rule are: R.R. Company v. Lundin, 3 Colo. 94 (1876); 4-2-724, C.R.S.; Continental Divide Mining In- Rio Grande Southern R.R. Company v. Nichols, vestment Company v. Bliley, 23 Colo. 160, 166, 52 Colo. 300, 123 P. 318 (1912); Johnson v. 46 P. 633, 635 (1896); Willard v. Mellor, 19 Cousins, 110 Colo. 540, 135 P.2d 1021 (1943). Colo. 534, 36 P. 148 (1894); Kansas Pacific

(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence and may be received as exhibits, as the court permits.

(19) Reputation Concerning Personal or Family History. Reputation among members of a person’s family by blood, adoption, or marriage, or among the person’s associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of the person’s personal or family history.

(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.

(Federal Rule Identical.)

COMMITTEE COMMENT

This rule is thought consistent with the former Colorado rule. See § 38-44-101, C.R.S., re establishing disputed boundaries.

(21) Reputation as to Character. Reputation of a person's character among the person’s associates or in the community.

(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty or nolo contendere, adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(Federal Rule Identical, Except that a Plea of Nolo Contendere was Excluded in the Federal rule.)

COMMITTEE COMMENT

The rule represents Colorado law by its in- plea in Lacey v. People, 166 Colo. 152, 442 clusion of a nolo contendere plea. § 13-90-101, P.2d 402 (1968). C.R.S., construed to include a nolo contendere

(23) Judgment as to personal, family, or general history or boundaries. Judgments as proof of matters of personal, family, or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

(Federal Rule Identical.)

COMMITTEE COMMENT

A judgment, under the circumstances stated, ject to the limitations applicable to evidence of creates the reputations, and is admissible sub- reputation.

(24) [Transferred to Rule 807]

COMMITTEE COMMENT

The contents of Rule 803(24) and Rule tions to Rules 803 and 804. No change in mean- 804(b)(5) have been combined and transferred ing is intended. to Rule 807. This was done to facilitate addi-

Source: (24) added November 15, 1984, effective April 1, 1985; (24) transferred to Rule 807 and (24) committee comment added, effective January 1, 1999; (6) amended and adopted June 20, 2002, effective July 1, 2002; (10) amended and adopted and (10) committee comment added and adopted, effective February 18, 2014; (16) amended and effective March 29, 2021.

Amended by Rule Change 2025(05), adopted January 16, 2025, effective immediately.