Colorado Court of Appeals Finds Testimony From Civil Trial Was Admissible at Criminal Trial Under “Former Testimony” Hearsay Exception

Similar to its federal counterpart, Colorado Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for 

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

So, is testimony from a civil trial admissible at a subsequent criminal trial under this “former testimony” exception to the rule against hearsay? That was the question of first impression addressed by the Colorado Court of Appeals in its opinion yesterday in People v. Harmon, 2025 WL 1074468 (Colo. App. 2025).

In Harmon, the court laid out the basic factual context as follows:

Paul and Anna Hershberger owned and operated Hershberger Construction, LLC (Hershberger). The company specialized in constructing steel buildings. In September 2014, Hershberger and Harmon entered into a contract to erect such a building on Harmon’s property. When they signed the agreement, Harmon was unsure where he wanted to place the building, so they agreed to store it at Hershberger’s headquarters, which was directly across the street from Paul and Anna’s residence.

In 2015, the parties’ relationship deteriorated due to Harmon’s uncertainty about when and where he wanted to place the building and delays in completing the project. Lyle Wingard, a former Hershberger employee and Paul’s son-in-law, testified that, in August 2015, during a phone conversation about the building’s location, Harmon told Wingard that he would shoot Paul and stated that “Paul is still being nice to me; he doesn’t believe that I’m going to kill him.” Wingard informed Paul of Harmon’s threat. Anna and Paul were unnerved by the threat and took various safety measures, including installing security cameras and creating an escape plan from their home in the event Harmon showed up at their residence.

In response to the threat, Paul sent Harmon a letter in which he terminated the contract. The letter banned Harmon from the Hershberger property and gave him until the end of 2015 to engage a third party to remove the building. The letter included a check with a partial refund of the contract price. This, however, wasn’t the end of the parties’ involvement with each other.

All of this led to a civil breach of contract action. Thereafter,

In January 2019, things came to a head after Anna saw Harmon in their driveway and called the police. Shortly after the call, law enforcement stopped Harmon as he drove away from the property. He appeared intoxicated.

Deputy Wade Carney testified that, after he informed Harmon that the stop was in relation to a possible harassment claim, Harmon admitted that he had threatened to shoot Paul and “everybody knows that.” Harmon was arrested on suspicion of driving under the influence of alcohol after failing roadside tests.

The police seized Harmon’s vehicle shortly after his arrest and recovered bullets, zip ties, and two loaded guns, one of which was hidden within an empty six-pack container. The police also found a note in Harmon’s home that read in part:

Told me he was going to Africa for month.

I told him that I had a buyer for site and could make [$]45,000 would rather have building will get started soon

No schedule

(1) Told him put the building up!!

(2) Give me my money back

(3) Or I will shoot you

Based on this investigation, Harmon was eventually charged with multiple criminal offenses2 including, as relevant here, attempted first degree murder, stalking (credible threat), and stalking (serious emotional distress).

Paul Hershberger testified against Harmon at the civil trial but died in an unrelated motorcycle accident before the criminal trial, prompting the prosecution to introduce his testimony under Rule 804(b)(1).

On appeal, Harmon argued that Rule 804(b)(1) didn’t apply at his criminal trial because he lacked a “similar motive to develop the testimony” of Paul at the criminal trial. The court disagreed, ruling as follows:

Unlike some of the uncertainties associated with Colorado’s confrontation clause jurisprudence, Rule 804(b)(1) unequivocally requires the court to make a qualitative analysis of the prior opportunity to examine an unavailable declarant. Thus, the controlling inquiry is whether Harmon’s counsel in the civil trial had “an opportunity and similar motive to develop [Paul’s] testimony by direct, cross, or redirect examination.”…

Harmon notes that no criminal charges had been filed before the civil trial and that the issues in the civil trial were fundamentally different than those presented in the criminal case. Thus, Harmon argues, his counsel had little motive to fully cross-examine Paul — particularly with respect to the issues most relevant to the criminal charges — and the trial court erred by finding that “the same issues were addressed in the prior proceeding.”

The People counter that the criminal court properly admitted Paul’s testimony because Harmon’s counsel in the civil trial had substantial motivation to fully examine Paul about the threat.

As previously noted, the criminal court thoroughly analyzed these arguments and concluded that Harmon’s counsel in the civil trial “not only had the motive to cross-examine [Paul] as to [the threat], but he actually did so.” Indeed, the criminal court found that both Harmon’s and Hershberger’s counsel spent considerable time examining Paul about the threat and arguing about its meaning and impact. As the criminal court observed, “The reason for that focus was simple — the threat itself and [Paul and Anna’s] reaction to it were central issues in the civil action.” These findings are supported by the record.

In the face of these findings, Harmon relies on the legal distinctions between a civil case and a criminal case. Harmon emphasizes the differences between the “preponderance of the evidence” civil burden of proof and the criminal “beyond a reasonable doubt” standard. He also points to differences in the consequences: monetary or related remedial relief in the civil context versus potential incarceration in the criminal context. While not expressly urging us to adopt a per se rule, Harmon seems to be suggesting that we should hold that testimony from a prior civil case can never be admitted in a criminal case under Rule 804(b)(1). But Harmon cites no authority, and we are aware of none, adopting such a broad rule.

-CM