Colo. R. Evid. 807
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
CRE 807
This rule was relocated from Rule 803(24) and Rule 804(b)(5).
.Annotation Law reviews. For article, "Tips for Working With Evidence in Domestic Relations Cases", see 31 Colo. Law. 87 (June 2002). To admit evidence under the residual hearsay exception, the court must determine that the statement is more probative on the points it is offered for than any other evidence the proponent could procure through reasonable efforts. Through reasonable efforts the prosecution could have obtained more probative evidence, so the court's admission of the documents under the residual exception was improper. People v. Gilmore, 97 P.3d 123 (Colo. App. 2003). In considering the trustworthiness of statements to determine if they should be admissible under this rule, courts should examine the nature and character of the statements, the relationship of the parties, the probable motivation of the declarant in making the statements, and the circumstances under which the statements were made. People v. Jensen, 55 P.3d 135 (Colo. App. 2001). The reliability of a statement should be determined by the circumstances that existed at the time the statement was made. Corroborating evidence is not an appropriate "circumstantial guarantee" supporting a hearsay statement. Vasquez v. People, 173 P.3d 1099 (Colo. 2007). Court did not abuse its discretion when it concluded that unavailable witness's testimony lacked sufficient circumstantial guarantees of trustworthiness and refused to admit the transcript of the witness's police interview. The witness could not clearly recall the basic and crucial fact of the date and time that an alternative suspect was at another location. People v. Sandoval-Candelaria, __ P.3d __ (Colo. App. 2011). Trial court did not abuse its discretion when it refused to admit an emissions test report under the residual hearsay exception. The court found the vehicle identification number on the emissions test report and the testimony of a Colorado motor vehicles division emissions section employee verifying that the document was an emissions test report an insufficient guarantee of trustworthiness since the defendant did not present evidence of who conducted the test, whether the test was performed accurately, and whether the test was actually conducted on the car sold to the victim. People v. Carlson, 72 P.3d 411 (Colo. App. 2003). Trial court properly admitted nonverbal statement of deceased victim where: (1) Victim had no motivation to lie; (2) victim was capable of understanding and responding to questions; (3) victim's perception and identification of perpetrator were not in question; and (4) the utility of cross-examination was remote. People v. Fry, 74 P.3d 360 (Colo. App. 2002), aff'd on other grounds, 92 P.3d 970 (Colo. 2004). Trial court properly admitted identification statement by victim under the residual hearsay exception. The trial court determined in a pretrial hearing that, based on the circumstances of the statement, there was no substantial probability that the identification was unreliable. Pena v. People, 173 P.3d 1107 (Colo. 2007). Trial court improperly admitted preliminary hearing testimony of deceased witness at trial because preliminary hearing testimony does not possess requisite trustworthiness. People v. Fry, 74 P.3d 360 (Colo. App. 2002), aff'd on other grounds, 92 P.3d 970 (Colo. 2004). A preliminary hearing does not provide an adequate opportunity to cross-examine sufficient to satisfy the confrontation clause requirements. Consequently, the use of a preliminary hearing transcript at trial is improper. People v. Fry, 92 P.3d 970 (Colo. 2004). Trial court did not abuse its discretion by excluding testimony of defendant's sister because there were not sufficient guarantees of trustworthiness. People v. Preciado-Flores, 66 P.3d 155 (Colo. App. 2002). Evidence of plaintiff's past cocaine use not admissible in medical malpractice case. Statements regarding plaintiff's past cocaine use were insufficiently trustworthy to be admissible under this rule where they did not concern cocaine use around the time of the alleged malpractice, were disputed and prejudicial, and were not more probative than other available evidence. Defendant could have tried to confirm present cocaine use by plaintiff with testing and should not benefit from the admission of disputed and prejudicial evidence of past cocaine use because defendant failed to do so. Haralampopoulos v. Kelly, __ P.3d __ (Colo. App. 2011).