Colo. R. Evid. 804 (2026)

(a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant-- (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or (2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarant’s statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(3) or (4) the declarant’s attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if the declarant’s exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant’s statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

COMMITTEE COMMENT

The Federal Rule is substantially the same as v. Burnett, 11 Colo. App. 86, 52 P. 752 (1898); the Colorado Rule; except there is no reference Daniels v. Stock, 23 Colo. App. 529, 130 P. to subsection (b) (2) in the Colorado Rule, as 1031 (1913); Woodworth v. Gorsline, 30 Colo. there is no Colorado subsection (b) (2). As to 186, 69 P. 705 (1902); Henwood v. People, 57 testimony given at a preliminary hearing, see Colo. 544, 143 P. 373 (1914); Gibson v. People v. Smith, 198 Colo. 120, 597 P.2d 204 Gagnon, 82 Colo. 108, 257 P. 348 (1927); (1979). This rule expands upon the former rule Duran v. People, 156 Colo. 385, 399 P.2d 412 of evidence in Colorado. For authorities on the (1965); Insul-Wool Insulation Corp. v. Home use of such evidence in Colorado, see: Rule 32 Insulation, Inc., 176 F.2d 502 (10th Cir. 1949). of Colorado Rules of Civil Procedure; Emerson

(2) (No Colorado Rule)

COMMITTEE COMMENT

The Federal rule relates to a statement under the dying declarations of a deceased person is belief of impending death. The admissibility of governed by § 13-25-119, C.R.S.

(3) Statement Against Interest. A statement that: (A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and (B) if offered in a criminal case as one that tends to expose the declarant to criminal liability, is supported by corroborating circumstances that clearly indicate its trustworthiness after considering the totality of the circumstances under which it was made and any evidence that supports or undermines it.

(4) Statement of personal or family history. (A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.

(Federal Rule Identical.)

COMMITTEE COMMENT

This rule expanded the former Colorado rule Some independent proof of relationship under to admit statements of unrelated associates. (B) will continue to be required.

(5) [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: (b)(5) added November 15, 1984, effective April 1, 1985; (b)(5) transferred to Rule 807 and (b)(5) committee comment added, effective January 1, 1999; (b)(3) and (b)(3) committee comment amended and effective January 13, 2011.

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

Amended by Rule Change 2025(13), adopted June 18, 2025, effective September 2, 2025.