Rules Of Evidence Ideas

Sworn Testimony

* Dispense with formal oaths and affirmations in court cases and just make it a crime to lie to a court or in a court proceeding (both live presentations and statements made in writing to a court).

Hearsay Not Involving Expert Testimony

* Adopt in addition to existing hearsay exceptions the British hearsay exception: "Hearsay is admissible if the declarant is present and available to testify at trial, or if the declarant is unavailable to testify as a witness." Thus, it becomes primarily a "best evidence" rule rather than a rule to exclude evidence.

Expert Testimony

* Eliminate Rule of Evidence 702 (qualification of expert witnesses) and revise Rule of Evidence 701 (what opinion a lay person may testify regarding) and instead allow anyone to testify as an expert witness can now, subject to prior disclosure of proposed expert testimony as now. The trier of fact would use credibility rather than admission to sort out expert testimony. Colorado already has a narrow exception to Rule 702 of this nature allowing owners of property to testify as to its value without expert qualifications.

* Dispense with the requirements that any claim that would otherwise require expert testimony (e.g. re standard of care in an attorney malpractice case or attorney fee reasonableness) be supported by expert testimony when the matter involves legal expertise and the judge is a lawyer. In a jury trial, a standard of case can be articulated by the judge as a jury instruction. In a bench trial, argument of parties and counsel and the judge's own experience can substitute for expert testimony.

* Allow expert witness reports to be admitted as evidence (in criminal cases, subject to a defendant's right to insist on live testimony).

* In Colorado Rule of Civil Procedure 16.1 cases, disallow depositions of appraisers who have provided appraisal reports.

Limitation On Pre-Trial Disclosure Of Evidence As Grounds To Exclude Evidence

Do not exclude evidence in a trial or hearing based upon failure to disclose it prior to the trial or hearing if: (1) the evidence was obtained from the party seeking to exclude it, (2) the evidence is otherwise something that the objecting party was necessarily aware of (e.g. video and audio and writings of the objecting party, or photographs or video of something that the objecting party has seen.), or (3) the evidence was disclosed in discovery or pre-trial disclosures.

Follow Up Evidence

In bench trials involving pro se parties, a party should be permitted to submit supplemental evidence that was referred to as existing at trial, within two weeks after trial, even if it was not ready to submit to the court at the time, or not disclosed prior to trial. Additional argument regarding this evidence may be made orally (by pro se parties upon request) or in writing (by attorney represented parties).