1.3 Rules of Evidence for Peace Officers
Key Takeaways
- POST Unit II.E allots 2 required hours to Evidence; the Colorado Rules of Evidence govern what an officer collects, documents and testifies to.
- CRE 401 makes evidence relevant if it has any tendency to make a fact of consequence more or less probable, and CRE 403 allows exclusion when probative value is substantially outweighed by unfair prejudice.
- Hearsay is an out-of-court statement offered for its truth (CRE 801); the exceptions officers generate most often are present sense impression, excited utterance, statement for medical diagnosis, and business or public records.
- Colorado abolished the res gestae doctrine in People v. Rojas, 2022 CO 8, so other-act evidence must now be admitted through CRE 404(b) or another rule.
- Chain of custody is proved by documentation, not memory: every transfer of an item must be recorded with date, time, and the identity of both parties.
Rules of Evidence for Peace Officers
Sub-topic II.E Evidence (2 required hours) sits inside Unit II, Basic Law. It is small in hours and large in consequence: evidence rules decide whether the statement an officer captured at the door, the photograph taken at the scene, and the item pulled from a suspect's pocket ever reach a jury.
1. Relevance: The Gate Every Item Must Pass
CRE 401 defines relevant evidence as evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The threshold is deliberately low. CRE 402 admits all relevant evidence unless a constitutional provision, statute or rule excludes it.
CRE 403 is the counterweight: relevant evidence may still be excluded when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless cumulative presentation. Autopsy photographs, gang affiliation evidence, and a suspect's prior record are the classic CRE 403 fights.
2. Categories of Evidence
| Category | Definition | Patrol example |
|---|---|---|
| Direct | Proves a fact without inference | Eyewitness sees the defendant fire the shot |
| Circumstantial | Requires an inference | Defendant's DNA on the trigger; flight from the scene |
| Real / physical | The thing itself | The firearm, the narcotics, the pry bar |
| Documentary | Writings and records | Bank records, texts, CAD printouts |
| Demonstrative | Illustrates testimony | Crash diagram, scaled scene sketch |
| Testimonial | Sworn statements | Officer, victim, expert testimony |
Colorado juries are instructed that circumstantial evidence carries no less weight than direct evidence. There is no rule requiring an eyewitness.
3. Hearsay and the Exceptions Patrol Actually Generates
CRE 801(c): hearsay is a statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. CRE 802 excludes it unless an exception applies.
| Exception | Rule | What it looks like on a call |
|---|---|---|
| Present sense impression | CRE 803(1) | "He's in the blue truck right now" — described while perceiving |
| Excited utterance | CRE 803(2) | The DV victim's breathless account at the door, still under the stress of the assault |
| Then-existing state of mind | CRE 803(3) | "I'm afraid he'll kill me" |
| Statement for medical diagnosis | CRE 803(4) | What the assault victim tells the paramedic about how the injury happened |
| Recorded recollection | CRE 803(5) | The witness statement form signed at the scene when the witness later cannot recall |
| Business / public records | CRE 803(6), (8) | Dispatch logs, jail records, calibration records |
| Dying declaration | CRE 804(b)(2) | Statement about the cause of death by a declarant who believes death is imminent |
Tactically, this list is a documentation instruction. An excited utterance is only usable if the officer records the stress indicators — the crying, the shaking, the elapsed time since the assault, the spontaneity. A report that says only "victim stated suspect hit her" has thrown away the exception.
Confrontation Clause overlay. Under Crawford v. Washington, 541 U.S. 36 (2004), testimonial hearsay is inadmissible unless the declarant testifies or the defense had a prior chance to cross-examine. Davis v. Washington, 547 U.S. 813 (2006), draws the line: statements made to meet an ongoing emergency are non-testimonial; statements made once the emergency has passed and the officer is building a case are testimonial. This is the single most important evidence doctrine in Colorado domestic violence prosecutions, where the victim frequently recants.
4. Colorado's Abolition of Res Gestae
For decades Colorado admitted uncharged "res gestae" acts as part of the story of the crime, without CRE 404(b) analysis. In People v. Rojas, 2022 CO 8, the Colorado Supreme Court abolished the res gestae doctrine, holding that other-act evidence must now be analyzed under CRE 404(b) or another recognized rule. The practical effect for officers is that background bad acts an officer once expected to come in automatically now require a proper non-propensity purpose — motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake — and the report must supply the facts that support that purpose.
5. Authentication and Chain of Custody
CRE 901 requires evidence sufficient to support a finding that the item is what its proponent claims. Authentication is usually satisfied by the officer's testimony that the item bears their unique markings, or by an unbroken chain of custody.
CHAIN OF CUSTODY — every link is a documented transfer
SEIZURE -> FIELD PACKAGING -> SEALED & INITIALED -> EVIDENCE LOCKER
| | | |
who/when/ tamper-evident date, time, item barcode / log
where packaging number, initials entry
-> EVIDENCE TECHNICIAN -> CBI OR AGENCY LAB -> RETURN -> COURT
A gap in the chain does not automatically exclude the item; it usually goes to weight rather than admissibility. But a documented gap in a narcotics or DNA case is the defense's entire cross-examination. Colorado agencies mitigate this with barcoded evidence systems, tamper-evident packaging, and the rule that an officer never re-opens sealed packaging in the field.
Best evidence. CRE 1002 requires the original writing, recording or photograph to prove its content — which in modern practice means the original digital file, with its metadata, not a screenshot of a screenshot.
6. Privileges Officers Meet in the Field
| Privilege | Colorado source | Field consequence |
|---|---|---|
| Attorney-client | C.R.S. 13-90-107(1)(b) | Do not record or listen to defense counsel calls |
| Spousal | C.R.S. 13-90-107(1)(a) | Does not apply to crimes against the spouse or a child |
| Physician / psychologist-patient | C.R.S. 13-90-107(1)(d), (g) | Medical records generally need a warrant or exception |
| Clergy | C.R.S. 13-90-107(1)(c) | Penitential communications protected |
| Victim advocate | C.R.S. 13-90-107(1)(k) | Advocate communications are privileged; do not treat the advocate as a witness |
Officers should note the two spousal exceptions in particular: the privilege is unavailable in prosecutions for crimes committed against the spouse or against a child of either spouse, which is exactly the domestic violence and child abuse casework Colorado patrol handles.
Officers respond to a domestic disturbance. As they arrive the victim runs out of the house crying, shaking, and shouts that her partner just choked her seconds earlier. The victim later refuses to testify. Which evidentiary analysis is most accurate?
An officer seizes a baggie of suspected fentanyl, marks it, seals it in tamper-evident packaging, and logs it into the evidence locker. At trial the defense shows that the evidence technician's transfer log entry for one intra-agency movement is missing. What is the usual legal consequence in Colorado?