2021 Colorado Code
Title 16 - Criminal Proceedings
Article 5 - Commencement of Criminal Action
Part 2 - Indictments and Informations
§ 16-5-203. Furnishing Witnesses' Names

Whether a prosecution is commenced by indictment, information, or felony complaint, the district attorney shall make available to the defendant not later than twenty-one days after the defendant's first appearance at the time of or following the filing of charges a written list of the names and addresses of the witnesses then known to the district attorney whom he or she intends to call upon at trial. The district attorney shall also furnish the defendant in writing prior to trial the names and addresses of any additional witnesses who have become known to him or her prior to trial and whom he or she intends to call upon at trial, but this shall not preclude the calling of witnesses whose names or the materiality of whose testimony are first learned by the district attorney upon the trial. However, the court may, in its discretion, enter an order that denies the disclosure to the defendant of the names and addresses of witnesses, or that requires the defense counsel not to disclose such information to the defendant, subject to rule 16 part I (d)(2) and part III (d) of the Colorado rules of criminal procedure. The names and addresses of witnesses who are the subject of the order may be withheld pending a ruling of the court, but the prosecution shall notify the defense counsel in writing that a motion to withhold witness information has been filed and that such information will be withheld pending the court's order. Where the defendant has not had or waived a preliminary hearing, there shall be filed with the information the affidavit of some credible person verifying the information upon the personal knowledge of the affiant that the offense was committed.

History. Source: L. 72: R&RE, p. 215, § 1. C.R.S. 1963: § 39-5-203 . L. 90: Entire section amended, p. 985, § 5, effective April 24. L. 95: Entire section amended, p. 464, § 8, effective July 1. L. 96: Entire section amended, p. 737, § 10, effective July 1. L. 2012: Entire section amended,(SB 12-175), ch. 208, p. 848, § 70, effective July 1.

Analysis

• I. GENERAL CONSIDERATION.
• II. LIST OF WITNESSES.
• III. VERIFICATION AND PRELIMINARY HEARING.
• II. GROUNDS FOR CHANGEOF JUDGE.
  • A. In General.
  • B. Interest.
  • C. Prejudice.

• III. MOTION FOR CHANGE.
  • A. In General.
  • B. Sufficiency of Motion.

Law reviews. For article, “By Leave of Court First Had”, see 8 Dicta 14 (June 1931). For article, “One Year Review of Criminal Law and Procedure”, see 40 Den. L. Ctr. J. 89 (1963).

Annotator's note. Since § 16-5-203 is similar to repealed §§ 39-3-6 and 39-4-2 , C.R.S. 1963, §§ 39-3-6 and 39-4-2 , CRS 53, CSA, C. 48, §§ 452 and 455, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Purpose of witness list. The requirement of this section that the district attorney list his witnesses is to advise the defendant of the witnesses for the people and to give the defendant an opportunity to contact, examine, and question those witnesses. Kelly v. People, 121 Colo. 243 , 215 P.2d 336 (1950).

The requirement of listing the names of witnesses is for the protection of the defendant as a guarantee that the prosecution is being conducted in good faith by the state, and to enable the defendant to find out what the testimony against him will be, and to investigate the character of the witness against him. Harris v. Municipal Court, 123 Colo. 539 , 234 P.2d 1055 (1951).

This section is mandatory, and it is the duty of the district attorney to comply with it. Wickham v. People, 41 Colo. 345 , 93 P. 478 (1907).

However, the names of rebuttal witnesses for the people are not required to be listed. Ingles v. People, 90 Colo. 51 , 6 P.2d 455 (1931); Schreiner v. People, 95 Colo. 392 , 36 P.2d 764 (1934).

Neither Crim. P. 16, nor this section specifically require the prosecution to endorse or to disclose which of the endorsed witnesses it will call for rebuttal. People v. Hamrick, 624 P.2d 1333 (Colo. App. 1979), aff'd, 624 P.2d 1320 (Colo. 1981); People v. Avila, 944 P.2d 673 (Colo. App. 1997).

District attorney may list additional names. It is not reversible error to allow, on the day before a case was set for trial, the district attorney to list the names of additional witnesses said to have been known to him when the information was filed, where defendant did not apply for a continuance nor make a showing of surprise or prejudice, and where no such showing is made on appeal. Wickham v. People, 41 Colo. 345 , 93 P. 478 (1907).

List may be given after arraignment but before witnesses testify. It is not error to permit the examination of witnesses in chief whose names were not furnished the accused prior to his arraignment, a list of such witnesses being given before they were called to testify, and no objection being made to them upon this ground. Minich v. People, 8 Colo. 440 , 9 P. 4 (1885).

Names of witnesses first learned upon the trial may be listed by order of the court. The names of witnesses, the materiality of whose testimony is first learned by the district attorney upon the trial, may be properly listed by order of court. Stone v. People, 71 Colo. 162 , 204 P. 897 (1922).

Such permission being discretionary with the court. Permission for listing of the names of witnesses at the trial is discretionary with the court. Baker v. People, 72 Colo. 207 , 210 P. 323 (1922).

And when granted will not constitute reversible error in the absence of a request for a continuance or showing of surprise by the defense. Baker v. People, 72 Colo. 207 , 210 P. 323 (1922); Stone v. People, 71 Colo. 162 , 204 P. 897 (1922).

The endorsement of a codefendant as a witness during the trial, being in no way prejudicial to the defendant, was not an abuse of discretion. Roll v. People, 132 Colo. 1 , 284 P.2d 665 (1955).

Noncompliance does not require reversal where a continuance has not been requested and surprise or prejudice has not been shown. People in Interest of B.R.M., 653 P.2d 77 (Colo. App. 1982).

Failure to list witnesses is not jurisdictional. Failure in listing the names of witnesses is not jurisdictional, but should be pointed out so that the trial court might direct the parties to comply with the statute. Harris v. Municipal Court, 123 Colo. 539 , 234 P.2d 1055 (1951).

Defect may be waived. By failure to timely object to noncompliance with section requiring witnesses' names the defect is waived. Harris v. Municipal Court, 123 Colo. 539 , 234 P.2d 1055 (1951).

And will not constitute reversible error if nonprejudicial. Omission to furnish a defendant with a list of witnesses prior to arraignment, where no objection was made to such omission at the time of such arraignment, and there is no showing of prejudice resulting therefrom, does not constitute reversible error. Goldsberry v. People, 149 Colo. 431 , 369 P.2d 787 (1962).

But testimony of unlisted witnesses in chief was erroneously admitted. Testimony of witnesses not listed as to the entire transaction was not confined to rebuttal matters and was erroneously admitted where the district attorney did not learn of the existence of the witnesses by anything that occurred at the trial. Eckhardt v. People, 126 Colo. 18 , 247 P.2d 673 (1952).

Failure to require prosecution to furnish addresses on list of witnesses not reversible error in a town of 9,000 people in which the defense should be able to locate witnesses. People v. Smith, 685 P.2d 786 (Colo. App. 1984).

Trial court properly allowed witness endorsed as a perceiving witness to testify as an expert witness after defense raised the issue related to the expertise at trial. People v. Jowell, 199 P.3d 38 (Colo. App. 2008).

Information must be supported by oath or affirmation. A prosecution and conviction under an information, not supported by the oath or affirmation of any person, is in violation of the bill of rights, § 7 of art. II, Colo. Const.Lustig v. People, 18 Colo. 217 , 32 P. 275 (1893).

Summons and complaint charging misdemeanor needs no verification. This section, which specifically requires verification, is to this extent modified by § 16-2-106 , which does not require a verification of a summons and complaint charging a misdemeanor and issued by a peace officer. Stubert v. County Court, 163 Colo. 535 , 433 P.2d 97 (1967).

Where a preliminary hearing has been had, verification upon information and belief by the district attorney is sufficient, since the arrest of the party charged must have been made upon warrant issued upon the requisite affidavit. Brown v. People, 20 Colo. 161 , 36 P. 1040 (1894).

It is not necessary in such information to set out that a preliminary hearing had been had. It devolves upon the defendant to establish the same by showing that such preliminary hearing had not been had. Brown v. People, 20 Colo. 161 , 36 P. 1040 (1894).

Information need not be verified except in cases in which no preliminary examination has been had or waived. Ratcliff v. People, 22 Colo. 75 , 43 P. 553 (1896).

In such cases it must be verified by some person upon his own knowledge. Brown v. People, 20 Colo. 161 , 36 P. 1040 (1894).

Where a verification is necessary, as where a preliminary hearing has not been had or waived, it must be contained in the independent affidavit of some credible person having knowledge of the commission of the offense. White v. People, 8 Colo. App. 289, 45 P. 539 (1896).

Accused cannot attack truth of affidavit made as basis of information. When an affidavit is made as the basis of an information in conformity with the requirements of this section, it is not in the power of the accused to attack, by counteraffidavit or otherwise, the truth of any of its material statements. Holt v. People, 23 Colo. 1 , 45 P. 374 (1896).

Neither can the statements in the affidavit be attacked by extraneous evidence. Whether or not an affidavit upon which an information is based complies with this section must be determined from the context of the affidavit itself, and its statements cannot be attacked by extraneous evidence. The verification cannot be attacked on the ground that the testimony disclosed that the party who verified it did not have personal knowledge of the guilt of the defendant. Bergdahl v. People, 27 Colo. 302 , 61 P. 228 (1900).

It is unnecessary for the affidavit to recite that affiant is a competent witness to testify in the case. His competency will be presumed until the contrary appears. Walt v. People, 46 Colo. 136 , 104 P. 89 (1909); Wilkinson v. People, 86 Colo. 406 , 282 P. 257 (1929); Hubbard v. People, 153 Colo. 252 , 385 P.2d 419 (1963).

Want of a verification on an information is not jurisdictional. Bustamante v. People, 136 Colo. 362 , 317 P.2d 885 (1957).

Error of failure to verify may be waived. The information is required to be verified as designated, but unless the objection on that ground is properly presented in the trial court it is waived and cannot be raised in the appellate court. Bergdahl v. People, 27 Colo. 302 , 61 P. 228 (1900).

The absence of a sufficient affidavit to support a count in the information is, at most, an irregularity, and any objection thereto must be made before trial. Curl v. People, 53 Colo. 578 , 127 P. 951 (1912); Harris v. Municipal Court, 123 Colo. 539 , 234 P.2d 1055 (1951).

The affidavit bears the same relation to an information in a criminal action that it does to a complaint in a civil action. It is no substantial part of either the one or the other, and there is no reason why it may not be waived without prejudice to any substantial right of the defendant, or why he should not be held to have waived any irregularity or defect therein by not objecting before pleading to the merits. Curl v. People, 53 Colo. 578 , 127 P. 951 (1912).

An affidavit is for the benefit of the defendant and want of a verification affidavit is waived unless timely objection is made thereto in the trial court. Bustamante v. People, 136 Colo. 362 , 317 P.2d 885 (1957).

Verification of an information is required by statute but the right to challenge the verification is waived if a timely objection is not interposed. Scott v. People, 176 Colo. 289 , 490 P.2d 1295 (1971).

Verification may be provided before trial at the direction of the trial court once timely objection is made, and it is not error to deny a motion, made and ruled upon before trial, to strike a verification made to an information after service thereof. Bustamante v. People, 136 Colo. 362 , 317 P.2d 885 (1957).

This section does not prescribe before whom the affidavit shall be taken, but by a fundamental principle, when the statute fails to designate the particular officer before whom the oath shall be taken, it may be taken before any officer having general authority to administer oaths. Walker v. People, 22 Colo. 415 , 45 P. 388 (1896).

And statute giving notaries the power to take oath in all cases is sufficiently broad to cover affidavits since an affidavit is an oath reduced to writing and attested by him who has authority to administer the same. Walker v. People, 22 Colo. 415 , 45 P. 388 (1896).

Affidavit complied with this section where it was attached to the information and particularly recited that the facts stated in the foregoing information were true and the offense charged therein was committed as of the affiant's own personal knowledge. The affidavit was as full and complete as if each and every fact contained in the information had been fully embodied in the affidavit. Ausmus v. People, 47 Colo. 167 , 107 P. 204 (1910).

An affidavit to an information which states that the facts stated in the information are true and that the offense was committed of affiant's personal knowledge, is sufficient to make the information good as against a motion to quash for insufficient verification. Wilkinson v. People, 86 Colo. 406 , 282 P. 257 (1929).

Applied in Velasquez v. People, 154 Colo. 284 , 389 P.2d 849 (1964).