Colorado § 13-25-115 - Certificate of head officer.

§ 13-25-115. Certificate of head officer.

Where a subpoena is issued to a state agency of an executive department seeking an appearance in any court of record, and the evidence sought is proof of the absence of a public record or entry, or the foundation for or the authenticity of the documents which are otherwise admissible pursuant to the Colorado rules of evidence, such subpoena may be complied with by the submission of the documents under the official certificate of the head officer, or acting head officer, or official custodian acting under the authority of the head officer of any executive department of the government of the state of Colorado, as provided for in this section, without an appearance by the personnel of such agency. Nothing in this section shall be construed to restrict the right of any party to any legal proceeding to subpoena a state employee to testify to matters going beyond the foundation or authenticity of the records of the executive department.

Source: L. 11: p. 231, § 1. C.L. § 6551. CSA: C. 63, § 17. CRS 53: § 52-1-16. C.R.S. 1963: § 52-1-16. L. 91: Entire section amended, p. 374, § 1, effective April 19.

ANNOTATION

This section concerns the authentication of official state documents and not the competency or relevance of the documents themselves. Liber v. Flor, 160 Colo. 7, 415 P.2d 332 (1966); Orth v. Bauer, 163 Colo. 136, 429 P.2d 279 (1967).

The word "fact" refers to facts within the knowledge of the reporting officer or agent and cannot refer to hearsay statements or conclusions of others, such as those sought to be admitted here. Orth v. Bauer, 163 Colo. 136, 429 P.2d 279 (1967).

It is a codification of the hearsay exception for official records. The section is not specific in requiring the admission of findings, adjudications, and conclusions, and, thus, it is nothing more than a codification of the common-law exception to the hearsay rule in favor of official records. Orth v. Bauer, 163 Colo. 136, 429 P.2d 279 (1967).

The records themselves cannot contain hearsay. The section does not authorize the reception in evidence of every report of an investigation regardless of its hearsay character and of whether it contains conclusions and adjudications. Orth v. Bauer, 163 Colo. 136, 429 P.2d 279 (1967).

Where the officer was not present, and the defendant was not given the opportunity to cross-examine him, the entire report was properly excluded. "Official documents" to be admissible in evidence must first be tested by common-law principles of testimonial competency. The mere writing down of hearsay does not remove the bar to its admission. Orth v. Bauer, 163 Colo. 136, 429 P.2d 279 (1967).

The court has invariably noticed the documents evidencing action of the general assembly, subscribed by the proper officials, and found in the office of the secretary of state. They are accepted as prima facie evidence of the law, and whoever asserts the contrary has the burden of proof. Harrison v. People ex rel. Whatley, 57 Colo. 137, 140 P. 203 (1914).