Colorado

Civil Procedure

Civil Procedure

Rule 44 – Proof of Official Record

(a) Authentication.

(1) Domestic. An official record kept within the United States, or any state, district, or commonwealth, or within a territory subject to the administrative or judicial jurisdiction of the United States, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by the officer’s deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of the officer’s office.
(2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuiness of signature and official position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (A) admit an attested copy without final certification or (B) permit the foreign official record to be evidenced by an attested summary with or without a final certification. The final certification is unnecessary if the record and the attestation are certified as provided in a treaty or convention to which the United States and the foreign country in which the official record is located are parties.
(b) Lack of Record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subsection (a)(1) of this Rule in the case of a domestic record, or complying with the requirements of subsection (a)(2) of this Rule for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry.
(c) Other Proof. This Rule does not prevent the proof of official records or of entry or lack of entry therein by any method authorized by law.
(d) Seal Dispensed With. In the event any office or officer, authenticating any documents under the provisions of this Rule, has no official seal, then authentication by seal is dispensed with.
(e) Statutes and Laws of Other States and Countries. A printed copy of a statute, or other written law, of another state, or of a territory, or of a foreign country, or a printed copy of a proclamation, edict, decree, or ordinance by the executive power thereof, contained in a book or publication purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the judicial tribunals thereof, is presumptive evidence of the statute, law, proclamation, edict, decree, or ordinance. The unwritten or common law of another state, or of a territory, or of a foreign country, may be proved as a fact by oral evidence. The books of reports of cases adjudged in the courts thereof must also be admitted as presumptive evidence of the unwritten or common law thereof. The law of such state or territory or foreign country is to be determined by the court or master and included in the findings of the court or master or instructions to the jury, as the case may be. Such finding or instruction is subject to review. In determining such law, neither the trial court nor the appellate court shall be limited to the evidence produced on the trial by the parties, but may consult any of the written authorities above named in this section (e), with the same force and effect as if the same had been admitted in evidence.

C.R.C.P. 44

Source: (a) amended October 8, 1992, effective January 1, 1993.

Annotation I. General Consideration. Law reviews. For article, “Trials: Rules 38-53 “, see 23 Rocky Mt. L. Rev. 571 (1951). For article, “One Year Review of Civil Procedure and Appeals”, see 38 Dicta 133 (1961). For note, “One Year Review of Colorado Law-1964”, see 42 Den. L. Ctr. J. 140 (1965). For article, “Authentication of Foreign Public Documents for Use in Trial”, see 11 Colo. Law. 692 (1982). Exclusion by trial judge of document admissible under this rule is not prejudicial error where the defendant was successful in introducing a similar exhibit from which the excluded document had been prepared and which contained exactly the same information as the excluded document. Polster v. Griff’s of Am., Inc., 34 Colo. App. 161, 525 P.2d 1179 (1974). II. Authentication. A. In General. Law reviews. For article, “One Year Review of Civil Procedure and Appeals”, see 40 Den. L. Ctr. J. 66 (1963). B. Domestic. Section (a)(1) not exclusive. While section (a)(1) of this rule established a method by which official records may be admitted into evidence as self-authenticating documents, it is not the exclusive method by which such documents can be introduced. People v. Rivera, 37 Colo. App. 4, 542 P.2d 90 (1975). Where one claims that documents were not properly authenticated under this rule, but he testifies, as of his own knowledge, to every fact sought to have been established by the offered documents, any error is therefore harmless. Nieto v. People, 160 Colo. 179, 415 P.2d 531 (1966). Applied in Hamilton v. Hardy, 37 Colo. App. 375, 549 P.2d 1099 (1976). C. Foreign. Law reviews. For comment on Walker v. Calada Materials Co., appearing below, see 35 U. Colo. L. Rev. 451 (1963). This rule is plain and in full force and effect. Superior Distrib. Corp. v. Hargrove, 144 Colo. 115, 355 P.2d 312 (1960). This rule prescribes how an official record may be evidenced. Walker v. Calada Materials Co., 150 Colo. 572, 375 P.2d 679 (1962). It does not purport to prescribe what must be established in order to prevail in an action based upon a foreign judgment. Walker v. Calada Materials Co., 150 Colo. 572, 375 P.2d 679 (1962). A foreign judgment is dependent for its effect and validity upon the record which precedes it. Walker v. Calada Materials Co., 150 Colo. 572, 375 P.2d 679 (1962). The judgment roll should accompany copy of the judgment. In an action on a judgment of a foreign state an exemplified copy of the judgment, to be admissible in evidence, should be accompanied by the judgment roll, i.e., the record proper up to the time of judgment. The complaint, the summons, the return upon the summons, the affidavit for publication where constructive service is made, and papers of that sort constitute a part of the judgment roll. Walker v. Calada Materials Co., 150 Colo. 572, 375 P.2d 679 (1962). There is a difference between a certified copy of a record and one made according to this rule. Superior Distrib. Corp. v. Hargrove, 144 Colo. 115, 355 P.2d 312 (1960). The admission of certified copies of documents purporting to prove a foreign judgment is erroneous where such documents failed to comply with the provisions of this rule. Superior Distrib. Corp. v. Hargrove, 144 Colo. 115, 355 P.2d 312 (1960). Where there is no attempt to comply with the provisions of this rule, a decree entered by a foreign court is not admissible in evidence for any purpose. Potter v. Potter, 131 Colo. 14, 278 P.2d 1020 (1955); In re Seewald, 22 P.3d 580 (Colo. App. 2001). III. Other Proof. Copy of official record admissible. Where an individual with legal custody of the records testifies that the evidence offered is a true copy of an official record maintained in the ordinary course of business, it is admissible. People v. Roybal, 43 Colo. App. 483, 609 P.2d 1110 (1979). Any method authorized. Section (c) of this rule provides expressly that proof of official records may be made by any method authorized by law. People v. Rivera, 37 Colo. App. 4, 542 P.2d 90 (1975). A court may take judicial notice of any matters in its own records and files. Sakal v. Donnelly, 30 Colo. App. 384, 494 P.2d 1316 (1972). IV. Statutes and Laws of Other States and Countries. Annotator’s note. Since section (e) of this rule is similar to § 396 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Courts do not take judicial notice of the statutes of other states. Atchison, T. & S. F. R. R. v. Betts, 10 Colo. 431, 15 P. 821 (1887). The statutes of a foreign state are sufficiently proven by testimony of a duly licensed practicing attorney of that state where such testimony is uncontradicted. Mosko v. Matthews, 87 Colo. 55, 284 P. 1021 (1930). Applied in Spencer v. People in Interest of Spencer, 133 Colo. 196, 292 P.2d 971 (1956).

For use of printed statutes and reports of decisions as evidence, see § 13-25-101 , C.R.S.; for admissibility of evidence, see C.R.C.P. 43(a); for courts and clerks, see C.R.C.P. 77; for proof of parts of book, see C.R.C.P. 264.