author: Justice HOBBS

text:
    David STEWART, Jr., minor, by and through his next friend and mother, Chiquita STEWART, Petitioner, v. Velma I. RICE, Respondent.
    No. 00SC970.
    Supreme Court of Colorado, En Banc.
    May 13, 2002.
    As Modified on Denial of Rehearing June 3, 2002.

      Lloyd C. Kordick & Associates, Lloyd C. Kordick, Colorado Springs, Colorado, Attorney for Petitioner.
    Patterson, Nuss & Seymour, P.C., Franklin D. Patterson, Brian C. Proffitt, Engle-wood, Colorado, Attorneys for Respondent.
   Justice HOBBS

delivered the Opinion of the Court.

The court of appeals in Stewart v. Rice, 25 P.3d 1233 (Colo.App.2000) considered juror affidavits in directing the trial court to review its previous denial of a new trial motion. We hold that Colorado Rule of Evidence 606(b) barred consideration of the juror affidavits because they did not address matters within the rule's two exceptions: extraneous prejudicial information improperly brought to the juror's attention or improper outside influence exerted upon a juror.

After the trial court discharged the jury, defense counsel obtained five juror affidavits through an investigator and then used them to support a new trial motion. Plaintiff's counsel then obtained counter-affidavits from the same five jurors, rejecting what they had said in the defense affidavits.

The case had gone to a six person jury on the issue of damages only. The trial court instructed the jury in the use of a special verdict form containing three separate lines for the entry of noneconomic, economic, and physical impairment damages. The jury returned a verdict for $696,000.00 in noneco-nomic damages, $440,000.00 in economic damages, and $1,136,000.00 in physical impairment damages.

The trial court read the written verdict aloud verbatim, and then polled each juror at the request of defense counsel. Each juror answered "yes" to the trial court's question, "Is that your verdict in this case?"

Defense counsel realized later that the sum of the economic and noneconomic damages amounted to $1,136,000.00, the same amount the jury had entered on the third line for physical impairment damages. Defense counsel sent an investigator to contact the jurors. He did so repeatedly. Five of the six jurors signed affidavits which defense counsel offered to demonstrate that the jury did not intend to make an award for physical impairment damages. Instead, so the defense alleged in its new trial motion, the jury meant the third line of its written verdiet to state the total of its damages award. When plaintiffs counsel contacted the same five jurors, they executed counter-affidavits. These affidavits reaffirmed what the jurors had said when polled by the trial court, that the recorded verdict was theirs.

We determine that the affidavits were inadmissible under Colorado Rule of Evidence 606(b). Accordingly, the court of appeals should have excluded the affidavits from consideration. We reverse and reinstate the jury's verdict and the trial court's judgment.

L.

This lawsuit arose from a motor vehicle accident in Colorado Springs. The Petitioner, David Stewart ("Stewart"), the plaintiff in the trial court, was riding as a passenger in a vehicle driven by his mother, Chiquita Stewart, when a vehicle driven by the defendant, Velma Rice ("Rice"), the Respondent in this case, turned onto the street in front of the Stewarts' car and the two vehicles collided. Stewart suffered injuries to his neck, back, and nervous system and sued Rice.

The case went to the jury on the issue of damages only. Special Verdict Form B required the jury to answer two questions: "Did the plaintiff, David Stewart, Jr., incur injuries, damages or losses?" and "Was the defendant, Velma I. Rice's, negligence a cause of any of the injuries, damages or losses claimed by the plaintiff?" Because the jury answered "yes" to both questions, it proceeded to answer three additional questions regarding its award of damages in three separate categories. The jury answered each question as follows:

a. What is the total amount of damages, if any, incurred by the plaintiff for noneconomic losses or injuries, exelud-ing any damages for physical impairment? Noneconomic losses or injuries are those losses or injuries described in numbered paragraphs 1 and 5 of Instruction 12. You should answer "0" if you determine there were none.
ANSWER: $696,000.00
b. What is the total amount of damages, if any, incurred by the plaintiff for economic losses, excluding any damages for physical impairment? Economic losses are those losses described in numbered paragraphs 2 and 3 of Instruction 12. In computing the amount of the economic losses incurred by the plaintiff, you must exclude those amounts you are instructed to exclude in Instruction 12. You should answer "0" if you determine there were none.
ANSWER: $440,000.00
c. What is the total amount of damages incurred by the plaintiff for physical impairment? You should answer "0" if you determine there were none.
ANSWER: $ 1,136,000.00

In regard to Paragraph e, the trial court instructed the jury to:

State your answer to the following questions relating to the damages incurred by the plaintiff and caused by the negligence of defendant ....
c. What is the total amount of damages incurred by the plaintiff for physical impairment? You should answer "0" if you determine there were none.

No part of the court's instructions or the verdict form asked the jury to calculate or enter its award of total damages for all three categories.

Each of the jurors signed the special verdict form. Upon receiving the verdict quoted above, the trial court read it back verbatim to the jury. -It then polled the jurors individually, at the request of defense counsel. Each juror answered "yes" to the trial court's question, "Is that your verdict?"

Pursuant to section 13-21-102.5, 5 C.R.S. (1998), the trial court reduced the noneco-nomic damages award of $696,000.00 to $250,000.00. It then totaled the amounts for the three categories of damages, calculated and added the interest owed, and entered judgment for Stewart in the amount of $2,925,640.00.

After the trial court had discharged the jury, Rice's counsel directed a private investigator to obtain the signatures of jurors on form affidavits interpreting the jurors' intent and the meaning of the verdict they had signed. After repeated contacts, five jurors signed Rice's affidavits; the sixth juror refused to sign the affidavit. -

Rice moved for a new trial on causation and damages pursuant to C.R.C.P. 59. She contested the jury's verdict on grounds that (1) it was the product of "passion, prejudice or other ill motive"; (2) "the jury acted in reckless disregard of the instructions of law given it and did not even read the verdict form and instruction 12, or if read, misper-ceived"; and (8) "the impairment verdiet was the sum of the other two [damages categories]."

There were six jurors. To prove the jury's intent to make an award of damages different from that appearing on the special verdict form each had signed, Rice offered five juror affidavits. Three of the affidavits stated that:

The award of $1,186,000.00 for Question C was the sum of the award for Question A of $696,000.00 and Question B of $440,000.00.
We intended that our total verdict was to be the amount entered on Line "C", and did not intend that the amount on Line "C" be added to the amounts on Lines "A" and "B". We intended our total verdict to be the amount on Line "C".

The other two affidavits omitted the second paragraph.

Stewart's attorney then countered with affidavits by the same five jurors stating that the jury had come to consensus, the written verdict they signed accurately recorded their verdict, they felt pressured into signing the defense affidavits, the defense investigator had contacted them repeatedly, and the investigator had made them feel like "idiots." One of these jurors also signed a separate affidavit reciting that the investigator had said the jury verdict was excessive and a $50,000.00 settlement offer had been discussed between the parties before trial. The sixth juror refused to execute any affidavit.

Citing Colorado Rule of Evidence 606(b), Stewart moved to strike the defense affidavits. Stewart also filed a "Motion to Stop Jury Harassment" with affidavits of two jurors. Because the trial court did not rule on Rice's new trial motion, it was denied by operation of C.R.C.P. 59).

Rice appealed. She argued in her briefs to the court of appeals that the evidence did not support the economic damages award. She did not challenge the sufficiency of the evidence for the physical impairment award. Instead, referring to the amount the jury placed on the physical impairment line of its signed verdict, she contended that: "We know from the juror affidavits following trial that there was a mistake of more than $1,000,000.00 in just one line of the verdict form."

The court of appeals rejected Rice's contention that the evidence did not support the jury's award for economic damages in the amount of $440,000.00. The court of appeals rejected Stewart's cross-appeal, which alleged that Colorado's noneconomic damages cap was unconstitutional. Based on the defense affidavits, the court of appeals ordered the trial court to inquire into the jury's verdict and to consider granting a new trial. Stewart, 25 P.3d at 1287. The court of appeals affirmed the trial court's judgment in all other respects.

We reverse the judgment of the court of appeals and reinstate the jury's verdict and the trial court's judgment.

IL.

We hold that CRE 606(b) barred the court of appeals from considering the juror affidavits because they did not address matters within the rule's two exceptions: extraneous prejudicial information improperly brought to the juror's attention or improper outside influence exerted upon a juror.

We proceed with our analysis by examining Colorado's common law and CRE 606(b), which codified the common law and contains two exceptions. We also examine the basis for the clerical error exception. We point out that our standard jury instruction allowing post-verdict contact between jurors and parties or their attorneys does not allow the abuse of the jurors and the jury system that occurred in this case. Finally, we determine that the affidavits in this case are inadmissible under CRE 606(b), and defense counsel established no basis under C.R.C.P. 60(a) for clerical error.

CRE 606(b) is a broad ban against the solicitation and use of juror testimony, affidavits, or statements addressing the validity of a Jury verdict. The rule provides two limited exceptions. The rule provides:

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the juror's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

CRE 606(b).

C.RC.P. 60(a) addresses clerical error. This rule provides:

(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the case is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

C.R.C.P. 60(a). These rules severely restrict contacting a juror to obtain testimony, affidavits, or statements regarding a verdict.

A.

Colorado Common Law

Long before CRE 606(b), we adopted Lord Mansfield's rule prohibiting juror testimony about their deliberations and verdict. Our common-law cases identified a broad prohibition against impeaching a verdict through juror testimony. Generally, after leaving the courtroom, jurors could not testify to any matter concerning the intent or meaning of their verdict or their thought processes in reaching it. See Wray v. Carpenter, 16 Colo. 271, 273, 27 P. 248, 248 (1891), Knight v. Fisher, 15 Colo. 176, 180, 25 P. 78, 80 (1890).

We applied this rule in a number of cases. See, e.g., Richards v. Richards, 20 Colo. 303, 303-04, 38 P. 323, 323-24 (1894) (rejecting affidavits alleging that jurors failed to consider appellant's counterclaim and stating that "no affidavit, deposition or other sworn statement of a juror will be received to impeach the verdict"); Johnson v. People, 33 Colo. 224, 242-43, 80 P. 133, 139 (1905) (stating that "[IIt is scarcely necessary to say that a juror will not be permitted to impeach his own verdict by affidavit"); Richards v. Sanderson, 39 Colo. 270, 282, 89 P. 769, 773 (1907) (stating that "[it is well settled that the affidavit of a juror cannot be received to impeach a verdict"); Kreiser v. People, 199 Colo. 20, 22, 604 P.2d 27, 28 (1979) (holding that the trial judge erred in re-empanelling the jury for a poll and subsequent correction of an error in the verdiet form).

Our common-law cases also addressed limited exceptions to this rule. These cases foreshadowed exceptions to CRE 606(b)'s broad prohibition on jury testimony or affidavits. See, e.g., Butters v. Wann, 147 Colo. 352, 356-58, 363 P.2d 494, 496-97 (1961) (allowing juror affidavit regarding juror's independent, extra-judicial investigation during trial into decedent's drinking habits); Wharton v. People, 104 Colo. 260, 265-66, 90 P.2d 615, 617-18 (1939) (allowing consideration of juror affidavit alleging improper, prolonged coercion by other jurors which compelled juror to assent to death penalty verdict).

B.

CRE 606(b)

We adopted CRE 606(b) in 1980. Substantially similar to its federal counterpart, CRE 606(b) is an exclusionary rule codifying Lord Mansfield's rule; it contains two exceptions.

When our rule is similar to the federal rule, we may look to the federal authority for guidance in construing our rule. Air Communication & Satellite, Inc. v. EchoStar Satellite Corp., 38 P.3d 1246, 1251 (Colo.2002). CRE 606(b)'s federal counterpart is "grounded in the common-law rule against admission of jury testimony to impeach a verdict and the exception for juror testimony relating to extraneous influences." Tanner v. United States, 483 U.S. 107, 121, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). A commentator emphasizes the breadth of the federal rule's prohibition against turning the jurors into witnesses:

It would have been hard to paint with a broader brush, and in terms of subject, Rule 606(b)'s exclusionary principle reaches everything which relates to the jury's deliberations, unless one of the exceptions applies.

Christopher B. Mueller, Jurors' Impeachment of Verdicts and Indictments in Federal Court Under Rule 606(b), 57 Neb. L. Rev. 920, 935 (1978).

CRE 606(b) applies to all civil and criminal cases. Ravin v. Gambrell, 788 P.2d 817, 820 (Colo.1990). It broadly prohibits using juror testimony to contest a verdiet. A juror:

may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.

CRE 606(b). The rule bars affidavits and statements, as well as testimony:

Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

Id. CRE 606(b) embodies the common-law rule protecting and preserving jury deliberations:

The first half of the first sentence of Rule 606(b) represents the embodiment of the common law tradition of protecting and preserving the integrity of jury deliberations by declaring jurors generally incompetent to testify as to any matter directly pertinent to, and purely internal to, the emotional or mental processes of the jury's deliberations.

Arthur Best et al., Colorado Evidence: 2001 Courtroom Manual 137 (2000). CRE 606(b) provides two narrow exceptions. A juror:

may testify on the question whether extraneous prejudicial information was improperly brought to the juror's attention or whether any outside influence was improperly brought to bear upon any juror.

Id.

CRE 606(b) has three fundamental purposes: to promote finality of verdicts, shield verdicts from impeachment, and protect jurors from harassment and coercion. See Ravin, 788 P.2d at 820; Santilli v. Pueblo, 184 Colo. 432, 433-34, 521 P.2d 170, 171 (1974).

These purposes also underlie other Colorado law protecting the jury process. While a jury may change or modify its verdict up to the point the trial court accepts the verdict and discharges the jury, the court may not recall the jurors for this purpose onee they leave the judge's control. Montanez v. People, 966 P.2d 1035, 1037 (Colo.1998). "This rule helps to ensure that jury verdicts will not be tainted by any outside influence ... and promotes the finality of verdicts." Id.

During post-trial and appellate proceedings, courts must view the jury's verdiet in the light most favorable to it. See Bohrer v. DeHart, 961 P.2d 472, 477 (Colo.1998) ("We defer to jury verdicts when jurors have been properly instructed and the record contains evidence to support the jury's findings."). Special verdict forms and the instructions that go with them assist a jury with its deliberations; signing the verdict form acknowledges the verdict as the product of each juror's deliberation. See, eg., id. at 477-78.

CRE 606(b) protects the jurors in performing their public service and their post-verdiet privacy. It acts to restrain disappointed litigants. The law presumes that jurors have followed the court's instructions and have discharged their duties faithfully. Bear Valley Church of Christ v. DeBose, 928 P.2d 1315, 1331 (Colo.1996).

Under CRE 606(b), as with our common law, we have excluded juror testimony or affidavits divulging juror deliberations, thought processes, confusion, mistake, intent, or other verdict impeaching grounds. See, e.g., People v. Garcia, 752 P.2d 570, 584 (Colo.1988) (refusing to accept affidavits regarding jurors' mental processes); People v. McCoy, 764 P.2d 1171, 1177 (Colo.1988) ("It is well established ... that a juror's affidavit that attempts to explain the mental processes of the jury cannot be used to impeach a jury verdict."); Neil v. Espinoza, 747 P.2d 1257, 1261, 1261-62 (Colo.1987) (concluding that juror's affidavit addressed "the sort of 'mental process' into which the litigants and the court may not inquire"); Crespin v. People, 721 P.2d 688, 691 n. 6 (Colo.1986) (barring consideration of juror testimony asserting jurors' failure to consider one of the charges against defendant).

Other jurisdictions are in accord. Under cireumstances analogous to the case before us, courts have refused to allow jurors to revisit their damages verdict. The West Virginia Supreme Court rejected juror affidavits in McDaniel v. Kleiss, 198 W.Va. 282, 480 S.E.2d 170, 172-74 (1996). The trial court had allowed juror testimony about jury confusion in apportioning fault when calculating its damage award, and then entering its verdict on the verdict form. The court said:

If in fact the jurors did reduce the amount of damages awarded to Mr. McDaniel before writing their damage calculations on the verdiet form, this constitutes confusion regarding the comparative negligence principles. A juror's confusion regarding the law is treated as intrinsic to the deliberative process itself.

McDaniel, 480 S.E.2d at 175.

The Maine Supreme Court has held juror testimony about damages calculations to be inadmissible. See Taylor v. Lapomarda, 702 A.2d 685, 689 (Me.1997); see also Chalmers v. City of Chicago, 88 Ill.2d 532, 59 Ill.Dec. 76, 431 N.E.2d 361, 365 (1982) (prohibiting inquiry of jurors regarding their intent and possible confusion). Maine has adopted a plain meaning application of the rule and its specified exceptions, because the rule promotes:

(1) the need for stability of verdicts; (2) the need to conclude litigation and desire to prevent any prolongation thereof; (8) the need to protect jurors in their communications to fellow jurors made in the confi-denee of secrecy of the jury room; (4) the need to save jurors harm[ ] from tampering and harassment by disappointed litigants; [and] (5) the need to foreclose jurors from abetting the setting aside of verdicts to which they may have agreed reluctantly in the first place or about which they may in the light of subsequent developments have doubts or a change of attitude.

Lapomarda, 702 A.2d at 688.

The First Cireuit has prohibited inquiry under the federal rule into the jury's intent in awarding damages. See Plummer v. Springfield Terminal Ry. Co., 5 F.3d 1, 5 (1st Cir.1993). But see McCullough v. Consol. R. Corp., 937 F.2d 1167, 1172 (6th Cir.1991) (permitting the trial court to inquire into the damages verdict before the jury left the jury room, and pointing out that the trial court's amendment of the verdict stemmed "from jurors' own volition and not from any overreaching by the parties or their counsel"); see also Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1547 (10th Cir.1993) (permitting trial court to ask the jury foreman how properly to read the jury's verdiet).

Our case law supports a plain meaning application of CRE 606(b) and its two stated exceptions. See, e.g., Harper v. People, 817 P.2d 77, 86 (Colo.1991) (reversing conviction and remanding for a new trial because trial court refused to entertain juror testimony about potential for unfair prejudice from widespread media publicity about the trial); Ravin, 788 P.2d at 821 (finding a reasonable possibility that comments by bailiff, overheard by jurors, influenced the jury's ultimate verdict); Wiser v. People, 732 P.2d 1139, 1143 (Colo.1987) (examining juror testimony to determine whether extraneous influence, in this case consultation of a dictionary, resulted in prejudice to the defendant, but deciding ultimately that the use of the dictionary, while improper, did not require reversal of the conviction); Alvarez v. People, 653 P.2d 1127, 1131 (Colo.1982) (allowing juror testimony to show that a juror's use of a dictionary during trial substantially prejudiced the defendant).

Under Colorado law, a party desiring to challenge a jury verdict must pursue remedies not involving juror testimony, except as CRE 606(b) provides. For example, a party may move for a new trial, see C.R.C.P. 59(a)(1); may move for judgment notwithstanding the verdict, see C.R.C.P. 59(a)(@2); may challenge the verdict as excessive, see Higgs v. Dist. Court, 713 P.2d 840, 860-61 (Colo.1985); or may pursue other mechanisms under the law for relief.

C.R.C.P. 59 requires affidavits in connection with a new trial motion made for grounds listed in C.R.C.P. 59(d), but CRE 606(b) acts to preclude juror affidavits as a basis for seeking post-trial relief, unless the CRE 606(b) exceptions apply.

Some courts recognize clerical error as a reason to allow juror testimony into evidence. Because Rice attempts to fit within a clerical error exeeption, we now discuss this potential exception.

C.

Clerical Error

The Wisconsin Supreme Court allows juror testimony about clerical error, but only if all of the jurors agree that their verdict was incorrectly reported and if the party requesting correction "promptly" informs the court. See State v. Williquette, 190 Wis.2d 677, 526 N.W.2d 144, 153 (1995).

The Mississippi Supreme Court points out that clerical error occurs when the foreperson incorrectly transcribes the jury's verdict. Martin v. State, 732 So.2d 847, 853 (Miss.1998) ("The error here is not 'clerical as would be the case where the jury foreperson wrote down, in response to an interrogatory, a number different from that agreed upon by the jury, or mistakenly stated that the defendant was 'guilty' when the jury had actually agreed the defendant was not guilty."). Some federal decisions also address clerical error. See id. at 858-54 (discussing federal cases).

Maryland has a strong policy against inquiring into jury verdicts, See Oxtoby v. McGowan, 294 Md. 83, 447 A.2d 860, 870 (1982) (stating that "[rlegardless of the rule in other jurisdictions, in Maryland, it is well settled that a juror cannot be heard to impeach his verdict, whether the jury conduct objected to be misbehavior or mistake").

Maine gives a plain meaning application to Rule 606(b), finds no exception for clerical error in that rule, and allows consideration of clerical error only under its counterpart to our C.R.C.P. 60(a), which addresses clerical error. See Lapomarda, 702 A.2d at 689; accord McDaniel, 480 S.E.2d at 178.

We agree with the Maine Supreme Court's approach. We give effect to both CRE 606(b) and C.R.C.P 60(a) as they are written. Clerical errors in judgments, orders, or other parts of the record may occur at any time during a proceeding. C.R.C.P. 60(a) permits their correction by the court sua sponte or upon motion of any party.

The clerical error must be readily ascertainable, typically upon the face of the document. See In re Marriage of Kelm, 878 P.2d 34, 36 (Colo.App.1994) (remanding case to trial court to correct a written order that referred to the husband both as Respondent and Petitioner because the order's reasonable meaning was clear), aff'd in part, rev'd in part on other grounds, 912 P.2d 545 (Colo.1996).

Clerical error in a verdict form does not include an alleged error that either alters the legal effect of the jury's verdict, see Chalmers, 59 Ill.Dec. 76, 431 N.E.2d at 365, or addresses the jury's misunderstanding or misapplication of the court's jury instructions. CRE 606(b) bars such an inquiry. See Santilli v. Pueblo, 184 Colo. 432, 433-34, 521 P.2d 170, 171 (1974).

Clerical error corrections to a jury's verdict are disfavored. When the trial court has polled each juror and the jurors state that the verdict is theirs, a challenge for clerical error will rarely be successful. See Mueller, supra, at 959; see also United States v. Chereton, 309 F.2d 197, 200 (6th Cir.1962). Colorado has a strong presumption in favor of upholding verdicts that jurors have acknowledged as their own:

Here the record is clear. The trial court read the verdict for petitioner in open court, and all the jurors assented to it. Each juror was questioned, reinforcing the evidence of the jury's intentions. The verdict for the petitioner in open court is the verdict of the jury.

Tyler v. Dist. Court, 200 Colo. 254, 257, 613 P.2d 899, 901 (1980).

D.

Abusive Practices

Colorado law recognizes that jurors, upon leaving the courtroom, may encounter influences that cause them to question their verdict, The law acts to prevent unsettling of jury verdicts by such encounters. See Montanez, 966 P.2d at 1037.

To avoid abusive practices towards jurors after completion of their service, the First Cireuit Court of Appeals prohibits post-verdict interviews of jurors by counsel, litigants, or their agents, except under the supervision of the district court and then only in such extraordinary situations as are deemed appropriate. See United States v. Kepreos, 759 F.2d 961, 967 (Ist Cir.1985). That court decries unbridled post-verdiet questioning of jurors:

Permitting the unbridled interviewing of jurors could easily lead to their harassment, to the exploitation of their thought processes, and to diminished confidence in jury verdicts, as well as to unbalanced trial results depending unduly on the relative resources of the parties.

Id.

The Second Cireuit Court of Appeals said that "complicity by counsel in a planned, systematic, broad-scale, post-trial inquisition of the jurors by a private investigator or investigators is reprehensible." United States v. Brasco, 516 F.2d 816, 819 (2d Cir.1975).

The Federal District Court for Colorado has a local rule prohibiting any attorney or party from contacting a juror without written authority signed by the trial judge. See D.C. Colo. LR 47.2.

In contrast, Colorado's standard post-verdict jury instruction allows attorneys, parties, and investigators to speak with willing jurors. See Colorado CJI-Civ. § 1:16. The trial court delivered such an instruction here:

The attorneys or the parties, at the conclusion of a jury trial, may desire to talk with the members of the jury concerning the reasons for their verdiet. For your guidance, you are advised that it is entirely proper for you to talk with the attorneys or the parties, and you are at liberty to do so. However, you are not required to do so. Whether you do so or not is entirely a matter of your own choice. Undoubtedly, your decision will be respected. However, if you decline to discuss the case and an attorney or a party or an investigator persists in discussing the case over your objection or becomes eritical of your service as a juror, please report the incident to me.

(Emphasis added.)

Under this instruction, jurors are free to discuss any aspect of their service they care to, including their deliberations, how they viewed the evidence and reached, their verdict, and how they view the intent and meaning of their verdict, but none of this can become evidence unless one or both of the CRE 606(b) exceptions apply to the case. CJI-Civ. § 1:16 reinforces the purposes of CRE 606(b) and protects the administration of justice, by requiring a juror to report to the court any criticism that an attorney, investigator, or party makes of the juror's service.

Attorneys, parties, and investigators must respect the language of CRE 606(b) and CJI-Civ. § 1:16 and their purposes. Colorado's safe zone for post-verdict contact with jurors depends on responsible professional conduct. Attorneys may benefit from learning how the jurors viewed their case. But, they may not make jurors witnesses except under the provisions of 606(b). This requires a proper showing that the juror testimony, affidavit, or statement is admissible under the rule's exceptions.

The case before us demonstrates that abuse of the jurors and the jury system can occur if attorneys, or persons acting under their direction, do not respect: (1) CRE 606(b)'s broad prohibition against making jurors witnesses; and (2) the safe-zone purpose of CJI-Civ. § 1:16 allowing post-verdiet contact.

An attempt to make the jurors witnesses without a basis in CRE 606(b)'s exceptions constitutes an abuse of the rule, the jury instruction, the jurors, and the administration of justice. According to the jurors' counter-affidavits, the investigator acting under the attorney's direction: (1) criticized the jurors' performance and their verdict, (2) referred to pre-trial settlement discussions; (3) said the jury's verdict was excessive; and (4) whipsawed jurors into signing the form affidavits by saying that other jurors had signed the affidavit.

Plaintiff's counsel responded to defense counsel's affidavits by obtaining plaintiff-prepared affidavits from the same five jurors, in which they recanted their defense-prepared affidavits. These jurors were rightfully upset about the judicial system as a result of post-verdict, attorney-initiated interrogation. Yet, the defense counsel affidavits had no basis in CRE 606(b)'s exceptions or C.R.C.P. 60(a)'s provision for clerical error.

We now turn to the inadmissibility of the defense juror affidavits in this case.

E.

Rice's Juror Affidavits Are Inadmissible

The affidavits in this case violate CRE 606(b) and are inadmissible. They testify to the jury's deliberative process and the intent and meaning of the jury's verdict, not either of the rule's two exceptions.

In her Motion for Post-Trial Relief, Rice used the affidavits to impeach the verdict. She alleged that the jury had not read the court's instructions, or had misunderstood them, and the court could repose no confidence in the verdict:

The essence of Defendant's position on the subject of a new trial is the conclusion is inescapable that the verdict form was not read, the instruction (number 12) was not read, the instruction number 3 regarding surmise and conjecture was not read, if these instructions were either not read or not understood, and certainly not applied, how can the Court repose any confidence in the jury's analysis of any issue?

None of these grounds falls within the two CRE 606 exceptions.

On appeal, Rice changed her tactic to argue that the affidavits proved clerical error:

CRE 606(b) does not preclude juror affidavits testifying to a jury's post-deliberative conduct. Post-deliberative conduct is that conduct occurring after the jury has reached its verdict and concluded its deliberations. Since post-deliberative conduct necessarily occurs after the conclusion of the jury's deliberations, courts have held that it is not subject to 606(b).
Post deliberative conduct includes the occurrence of clerical error, the unintended rendering of a verdict due to a mistake in the ministerial act of recording the verdict. The affidavits at issue before this court testify to the occurrence of a clerical error following this jury's deliberations.

We conclude that Rice attempted to impeach the jury's verdict with inadmissible evidence she was trying to characterize as admissible. Clearly, Rice's attorney dispatched the investigator for the purpose of contradicting the verdict. The attorney wanted to show that the signed verdict was not what it appeared to be. The object was to prove that the jury: (1) did not intend to award Stewart damages for physical impairment; (2) forgot to make a physical impairment award; (8) confused the third interrogatory in the special verdict form as asking for the total damages award; (4) disregarded the court's instructions and the special verdict form's plain language; or (5) any or all of these.

This inquiry defied the plain language of the written and signed verdict form, the court's instructions, and each juror's affirmation of the verdict through individual trial court polling. The third line of the special verdict form asked the jury if Stewart had incurred damages for physical impairment. The jury answered with the amount of $1,136,000.00. Each juror signed the verdict and answered during polling that the verdict was his or hers.

Nevertheless, defense counsel directed the investigator to contact the jurors, repeatedly invading their privacy at home and work, for the purpose of impeaching the verdict.

The defense inquiry contravened the language and purposes of CRE 606(b). These purposes are to promote finality of verdicts, shield verdicts from impeachment, and protect jurors from harassment and coercion. Agreeing on the contents of the jury's damages verdict was an integral part of the jury's deliberative process, not a ministerial task. The defense affidavits attacked the jurors' performance, an inadmissible arena.

The affidavits the defense obtained from the jurors are inadmissible under CRE 606(b). No matter involving the two CRE 606(b) exceptions allowed the affidavits. All of the jurors had signed this verdict, which specified the amount of the physical impairment award on the special verdict form. Each juror affirmed the verdiet in open court upon the trial court's polling. The defense counsel brought no clerical error cognizable under C.R.C.P. 60(a) to the trial court's attention.

The verdict stands.

IIL

Accordingly, we reverse the judgment of the court of appeals. Because the court of appeals affirmed the trial court's judgment in all other respects, we reinstate the trial court's judgment, and we direct the court of appeals to enter its mandate consistent with this opinion.

      . We granted certiorari on the following issue: "Whether the court of appeals misapplied C.R.E. 606(b) and prior precedent by accepting certain jury affidavits and remanding the case for a hearing to determine whether the verdict recorded was the verdict intended by the jury."

      . This amount did not include costs and interest in connection with the judgment, which matter the trial court should address on remand.

      . A typical counter-affidavil recited, in part:
      We all reached a consensus after carefully reading and studying the jury instructions. There was no clerical error at the time we filled out our jury form. Each one of us agreed on the amount we entered in each of the three categories for noneconomic injury, for economic injury and for impairment. All of us knew what these figures were at the time we signed the verdict form. I and the rest of the jurors were polled and we all agreed that this was our verdict.

      This special investigator showed me affidavits that were signed by other jurors in the case. I felt that I was compelled to sign affidavits if other jurors had agreed that this, in fact, had occurred.

      Since the verdict, I have been repeatedly contacted by the investigator and he has shown me affidavits of other jurors and discussed with me in detail how I might have arrived at certain things. He has made it difficult for me . and to some extent confused the events of the jury deliberations.... I feel that my jury service was a wasted effort, that it was done in vain and that I and the other jurors are being accused of being idiots or not doing our job properly. I now have very negative and bad feelings about the system. I felt that the criticism of our performance was offensive.

      . Lord Mansfield established the rule that a juror could not "allege his own turpitude." Vaise v. Delaval, 99 Eng. Rep. 944 (K.B. 1785) (refusing to accept into evidence the affidavits of jurors to show they had arrived at their verdict by lot). Jurisdictions in the United States widely adopted this common-law rule as their own. See Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987).

      . In Kreiser v. People, 199 Colo. 20, 23 n. 1, 604 P.2d 27, 29 n. 1 (1979) we narrowed the holding of Schoolfield v. Brunton, 20 Colo. 139, 142, 36 P. 1103, 1104 (1894). In Kreiser, we held that the court could not reassemble the jurors and poll them regarding the intent of their verdict after the jury had dispersed.

      . Most states have rules mirroring Federal Rule of Evidence 606(b). See, e.g., Ala. R. Evid. 606(b); Alaska R. Evid. 606(b); Ariz. R. Evid. 606(b); Ark. R. Evid. 606(b); Conn.Super. Ct. § 42-33; Conn.Super. Ct. § 16-34; Del. R. Evid. 606(b); Idaho R. Evid. 606(b) Burns LRE. 606(b), Iowa R. Evid. 606(b); Me. R. Evid. 606(b); Md. R. 5-606(b); Minn. Evid. R. 606(b); Miss. R. Evid. 606(b); Neb.Rev.Stat. § 27-606, NM. R. Evid. 11-606(b) ND. R. Evid. 606(b); Ohio R. Evid. 606(b); 12 Okla. Stat. § 2060(b); Pa. R. Evid. 606(b); RI. Evid. R. 606(b); S.C. R. Evid. 606(b); S.D. Codified Laws § 19-14-7; Tenn. Evid. R. 606(b); Tex.R. Evid. 606(b); Utah R. Evid. 606(b); Vt. R. Evid. 606(b); W. Va. R. Evid. 606(b); Wis. Stat. § 906.06(2); Wyo. R. Evid. 606(b).

      . The Tenth Circuit's opinion suggests, but does not explicitly state, that the trial court asked this question prior to discharging the jury.

      . One of the affidavits specifically addressed the investigator's conduct:
      1. I have been contacted several times by a special investigator hired by the defense attorney in this case.
      2. That on the first occasion I had to talk to the special investigator, he told me specifically that even $1,000,000.00 was kind of high.
      3. That the special investigator stated that before trial they were getting ready to settle the case for $50,000.00.
      4. It was my assumption that this $50,000.00 settlement would be coming from [an insurance company] since they were mentioned during jury selection.
      5. I think this statement was made to get me to sign an affidavit by suggesting that our verdict was too high.
      6. As members of the jury we cooperated with each other, we read the instructions very carefully and considered the damage instructions in arriving at our verdict.
      7. I felt that the special investigator was suggesting that we had not acted correctly in awarding damages in the case. It was suggested by him that we had awarded more damages than were appropriate for the case. I interpreted this to be a criticism of my jury service.

      . We need not address the admissibility of the plaintiff's counter-affidavits, because they would not have been tendered except in response to the defense affidavits.


source: Caselaw Access Project

author: Justice BENDER

license: Public Domain

text:
    The PEOPLE of the State of Colorado, in the Interest of J.A.U., a child, Petitioner. v. R.L.C., Respondent.
    No. 01SC530.
    Supreme Court of Colorado, En Banc.
    May 28, 2002.

      William A. Tuthill, III, Acting Jefferson County Attorney, Ingrid Holmes, Assistant County Attorney, Kathleen Curley, Assistant County Attorney, Golden, Colorado, Attorneys for Petitioner.
    No Appearance by or on behalf of Respondent.
   Justice BENDER

delivered the Opinion of the Court.

I. INTRODUCTION

This case requires us to decide whether a man, RL.C., who has previously admitted paternity and been adjudicated the father of a child may, eleven years after the judgment has entered, obtain genetic tests that he believes will assist him in challenging that judgment of paternity. We conclude that he may not.

The trial court denied R.L.C.'s motion for genetic tests, reasoning that Colorado's statutory scheme does not provide for genetic tests after a final judgment of paternity has entered. The court of appeals reversed in In re J.A.U., 33 P.3d 1237, 1238-89 (Colo.App.2001), holding that: (1) Colorado statute mandates that genetic tests be conducted upon the motion of the court or any interested party; (2) RL.C.'s motion for genetic testing essentially alleged that the judgment of paternity was based on a mistake of material fact and thus placed the original judgment of paternity at issue; and (8) that there exists no time limit to when a challenge to a legal determination of paternity may be brought pursuant to section 19-4-105(2)(c), 6 C.R.S. (2001).

With this case, we announce two holdings. First, we hold that a challenge to a paternity judgment on the basis of material mistake of fact, pursuant to section 19-4-105(2)(c), must be brought within the six-month time limit of Colorado Rule of Civil Procedure 60(b). In this case, assuming that R.L.C.'s motion alleges that the original judgment was based on a mistake of material fact and that this allegation is sufficient to constitute a motion to vacate the judgment pursuant to C.R.C.P. 60(b), R.L.C.'s motion was not brought within relevant time limits and therefore must be denied.

Second, we hold that section 19-4-112, 6 C.R.S. (2001), the provision of the Children's Code governing genetic testing during paternity adjudications, does not provide for such testing after a legal judgment of paternity has entered. We base our holding on both the language of the statute and the State's interest in safeguarding the welfare of children.

Hence, we reverse the judgment of the court of appeals and remand this case to it for return to the district court for further proceedings consistent with this opinion.

II. FACTS AND PROCEEDINGS BELOW

LER. and RL.C., both Colorado residents, were involved in an intimate relationship during late 1987 and early 1988. L.E.R. became pregnant. In September of 1988, before the child was born, L.E.R. sought an adjudication of paternity and a child support order.

R.L.C., appearing pro se, stipulated to paternity at a hearing held in the Jefferson County District Court in October of 1988. R.L.C.'s acknowledgment of his relationship to the child occurred without any request for blood tests, though he was entitled to demand such tests under Colorado law.

The child, J.A.U., was born in November of 1988. Two months later, the trial court entered a judgment of paternity and ordered R.L.C. to pay child support.

RL.C. never met J.A.U. However, approximately eleven years after the judgment of paternity was entered, LE.R. sent J.A.U.'s picture to R.L.C. He examined this picture and began to suspect that he was not the biological father of J.A.U.

He, then, eleven years and five months after the judgment entered, in May of 2000, filed a motion for genetic testing, stating that he "desires the certainty of genetic testing" because:

In viewing the photograph [of J.A.U.], Respondent noticed several dissimilarities in facial features which has caused Respondent to seriously doubt his paternity in this case. Respondent now believes his decision to admit paternity was based upon an erroneous assumption on his part, and that he, in fact, is not the father of the minor child.

R.L.C.'s request was opposed by the Jefferson County Department of Social Services, who had standing because of its role as the child support enforcement authority.

The trial court denied RL.C.'s motion, reasoning that section 19-4-112, which governs genetic testing in paternity cases, requires such testing only when paternity is at issue. Because paternity had already been litigated and finally adjudicated in this case, and because R.L.C. had not attacked that judgment, the trial court concluded that "under the cireumstances of this case the law does not provide for or permit genetic testing."

The court of appeals reversed in a published opinion, relying on its construction of two provisions of the Colorado's Children's Code. In re J.A.U., 33 P.3d at 1238-89. First, the court noted that the language of section 19-4-112, which governs genetic testing in paternity cases, makes such tests mandatory upon the motion of the court or any interested party. Id. at 12838.

Next, presumably because it would be meaningless to permit post-adjudication genetic tests if the results of such tests could not be used to challenge existing judgments, the court went on to consider whether R.L.C. could challenge the paternity judgment involved in this case. The court turned to section 19-4-105(2)(c), which permits challenges to judgments of paternity on the basis of fraud, duress, or mistake of material fact. Id. This statute does not specify a time limit within which such challenges must be brought. From this, the court of appeals reasoned that no time limit applies when an adjudicated father wishes to challenge a judgment on the basis of one of those three grounds. Id. Implicit in the court of appeals' holding was the conclusion that the time limits of C.R.C.P. 60(b), which governs motions to amend or vacate civil judgments, do not apply to paternity judgments.

Because of the court's interpretation of R,LC.'s motion for genetic testing, which it read to allege that the judgment was based on a material mistake of fact, the court concluded that the motion placed the original judgment at issue and entitled R.L.C. to the genetic tests that he sought. Id. at 1289.

We granted certiorari to resolve the questions of: (1) whether the time limits of C.R.C.P. 60(b) apply when a legal finding of paternity is challenged on the basis of mistake of material fact; and (2) whether section 19-4-112, the statute governing genetic testing in paternity cases, permits such tests to be performed even after a legal adjudication of paternity has been entered.,

III. ANALYSIS

R.L.C. argues that, because of the "clear legislative and judicial preference in favor of accurate determinations of biological parentage," he must be permitted to obtain DNA tests to determine whether he is the biological father of J.A.U. He suggests that Colorado's statutory scheme "contemplates placing the biological parentage of a child at issue [even] subsequent to an adjudication of paternity." We consider first whether the time limits of C.R.C.P. 60(b) are applicable to challenges to paternity judgments, before turning to the question of whether an adjudicated father is entitled to genetic tests to confirm his biological relationship to the child after the judgment of paternity has entered. We conclude that C.R.C.P. 60(b) does apply to challenges to paternity judgments on the basis of mistake and that Colorado statutes do not provide for post-adjudication genetic testing.

A. The Time Limits of C.R.C.P. 60(b) Apply to Challenges to Paternity Judgments on the Basis of Mistake

We begin our analysis by discussing the importance of finality of judgments, both to the legal system as a whole and to individual judicial determinations.

Once a final judgment has entered and the time for review has passed, the judgment is generally conclusive between the parties. See, e.g., E.J.R. v. Dist. Court, 892 P.2d 222, 226 (Colo.1995) ("We have long recognized that a definite public interest exists in the assured final adjudication of controversies and conclusiveness of judgments."). A court's power to modify or vacate a final judgment is limited, even if aspects of that final judgment are erroneous. See, e.g., People v. Caro, 753 P.2d 196, 200 (Colo.1988).

If judgments could easily be set aside, public confidence in the courts would be undermined. As judges and legal scholars have long recognized, protecting the finality of judgments promotes stability, certainty, and consistency in the law, and enhances the credibility of the judicial system:

That the formal pronouncements of legal tribunals upon causes submitted to them should enjoy every possible degree of finality and conclusiveness would seem to be a necessary predicate to the proper functioning of the courts themselves. To permit their decisions to be evaded or disregarded for insufficient cause or in modes not sance-tioned by law would tend to disrupt the administration of justice and bring courts into disrepute. Public policy requires that . judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown.

1 A.C. Freeman, Freeman on Judgments § 305, at 602-03 (5th ed. 1925); see also, e.g., Davidson v. McClellan, 16 P.3d 233, 236-37 (Colo.2001); Knapp v. Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353, 1356 (1986) ("Finality requires that there be some end to every lawsuit, thus producing certainty in the law and public confidence in the system's ability to resolve disputes.").

Individual parties who rely on existing judgments could be irreparably damaged by subsequent modifications to those judgments. To protect the interests of those parties, we have recognized that there must ordinarily be an ultimate stopping point at which a judgment is considered conclusive and unchangeable. Davidson, 16 P.3d at 236 ("It is essential, for practical reasons as well as for fundamental fairness, that there be a point at which litigation reaches a conclusion and that parties be permitted to rely on the outcome."); see also, e.g., Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244 (1931) ("Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties."); Tandra S. v. Tyrone W., 336 Md. 303, 648 A.2d 439, 448 (1994) ("[TJhe policy of finality serves an important purpose-the parties understand their respective rights and need have no concern about future developments changing their rights.").

Occasionally, there are cireumstances in which the State's interest in finality must give way to overriding concerns for truth and equity. Davidson, 16 P.3d at 237. Our society will not always permit blatantly erroneous or inequitable judgments to stand solely to promote interests in finality:

Litigants, of course, must be provided with some remedy to gain relief from an erroneous or unwarranted judgment. And in recognition of such necessity, the law has established appropriate proceedings to which a judgment party may always resort when he deems himself wronged by the court's decision.

1 Freeman, supra, § 305, at 608.

Thus, rules have developed to govern when a judgment may be vacated or amended. Once a valid judgment is entered, the only means by which the trial court may thereafter alter, amend or vacate the judgments is by appropriate motion under either C.R.C.P. 59 or 60., See, e.g., Caro, 753 P.2d at 200.

Relevant to this case, C.R.C.P. 60(b), which balances the "preferred rule of finality of judgments" and the need to provide relief in the interests of justice in exceptional cases, defines when a court can redress substantive errors in a final judgment. Southeastern Colo. Water Conservancy Dist. v. O'Neill, 817 P.2d 500, 505 (Colo.1991); see also State Farm Mut. Auto. Ins. Co. v. McMillan, 925 P.2d 785, 790 (Colo.1996); 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2851, at 227 (2d ed. 1995).

C.R.C.P. 60(b) provides that a court may relieve a party from a final judgment for any of a specified list of reasons, including, most relevantly here, "[mlistake, inadvertence, surprise, or excusable neglect. " Strict time limits apply, however. Thus, a motion to set aside a judgment on the basis of mistake must be made "within a reasonable time, ... not more than six months after the judgment . was entered." CRCP. 60(b). Thus, any challenge based on mistake is absolutely barred after six months have passed from the date of judgment. The question presented by this case is whether that six-month time bar applies to paternity judgments.

Article 4 of Title 19, the title known as the "Children's Code," is Colorado's version of the Uniform Parentage Act. It governs all Colorado paternity proceedings. Section 19-4-105(2)(c) provides that a "legal finding of paternity may be challenged in court only on the basis of fraud, duress, or mistake of material fact, with the burden of proof upon the challenger." Based on the fact that this statute does not specifically articulate a time limit within which such a challenge may be made, the court of appeals concluded that no time limit applied. .

All proceedings conducted pursuant to the Colorado Children's Code, including paternity proceedings, are governed by the Colorado Rules of Juvenile Procedure. § 19-1-106(1), 6 C.R.S. (2001). Unfortunately, the Colorado Rules of Juvenile Procedure are silent as to when a judgment rendered under the provisions of the Children's Code may be modified or vacated. Some guidance is provided, however. Rule 1 states, "Proceedings are civil in nature and where not governed by these rules or the procedures set forth in Title 19. ... shall be conducted in accordance with the Colorado Rules of Civil Procedure, except as otherwise provided by statute or these rules." This means that unless there is something in Title 19 that would preclude application of the Colorado Rules of Civil Procedure to paternity proceedings, those rules, including C.R.C.P. 60(b), apply.

We find nothing in the text of the Children's Code that suggests that the time limits of C.R.CP. 60(b) do not apply to it. Section 19-4-105(2)(c) arguably may serve to limit the types of challenges that may be made to paternity judgments. Nowhere, however, does section 19-4-105(2)(c) indicate that the legislature intended to expand the ability of parties to challenge paternity judgments beyond the boundaries provided by C.R.C.P. 60(b), so that challenges to paternity judgments can be brought at any time.

Neither section 19-4-119(1)(a), 6 C.R.S. (2001), nor section 19-4-108, 6 C.R.S. (2001), support the result R.L.C. seeks. Section 19-4-119(1)(a) provides the court with continuing jurisdiction "to modify or revoke a judgment or order ... [flor future education or support." It does not vest the court with continuing jurisdiction to modify or vacate paternity judgments. Section 19-4-108 provides that an "action to determine the existence of the father and child relationship may be brought at any time prior to the child's eighteenth birthday." The question in this case is not when a paternity action may be brought, but when an existing paternity judgment may be set aside.

A rule permitting unlimited challenges would be inconsistent with the public policy in favor of encouraging and respecting the finality of judgments. The policy interests that generally support the need for final judgments, discussed above, are particularly applicable to paternity judgments. The child's relationship with her parent, as well as her financial and psychological stability, are all threatened if an adjudicated father can subsequently challenge the relationship in court. With so much hanging in the balance, courts must be extremely cautious about setting aside or altering adjudications of paternity, particularly when such judgments have existed unchallenged for an extended period of time.

We have previously recognized that, "[ble-cause a paternity action significantly impacts a child, concern for her welfare should be paramount at every stage of the proceedings." N.A.H. v. S.L.S., 9 P.3d 354, 364 (Colo.2000) (also stating that "[the outcome of a paternity action irrevocably alters a child's current family situation and her future"). Thus, we held that paternity determinations must take into account the best interests of the child. Id.; see also 1 Nina M. Vitek, Disputed Paternity Proceedings § 1.07, at 1-91 (2001) ("Courts now hold that the chief purpose of the paternity proceeding is to secure the health, welfare, and happiness of the child.").

Similarly, the child's interests must also be considered when deciding whether to permit a legal father to reopen a judgment of paternity. We are not persuaded that it is in the best interests of a child to permit an existing parent-child relationship to be subjected to endless question and challenge.

Thus, we hold that any challenge to a paternity judgment on the basis of mistake of material fact must be brought within the six-month time limit set forth in C.R.C.P. 60(b). We acknowledge that the results of this holding may sometimes, arguably, seem harsh or unfair. However, it would often be far more unfair to permit longstanding paternity judgments to be altered in such a manner as to leave children fatherless and without financial support. Alleged fathers in paternity proceedings have an opportunity to litigate the issue. If they wish to take advantage of that opportunity, they must do so at the time the judgment is rendered, or they must bring challenges to such judgments within the reasonable time limits set by C.R.C.P. 60(b)-not years later and in contravention of settled expectations.

In this case, R.L.C. had every opportunity to present a defense in court at the time that the issue of paternity was litigated, in 1988. He could have demanded a blood test and a full trial, where he could have presented evidence and cross-examined witnesses. He chose not to. He may not now, more than eleven years after the judgment entered, attempt to reopen the judgment and litigate the issue of paternity. His time for asserting a C.R.C.P. 60(b) motion for relief from the judgment on the basis of mistake of material fact has long since expired.

B. Colorado Statutes Do Not Provide For Post-Adjudication Genetic Tests to Determine Biological Parentage

Next, we turn to the question of whether a court is required to order genetic testing to determine the biological parentage of a child after a judgment of paternity has entered. R.L.C. argued to the court of appeals that the statute governing genetic testing, section 19-4-112, does not contain a time limit.

The section of the Children's Code, section 19-4-112, entitled "Genetic or other tests," on which R.L.C. bases his argument, superficially suggests that such tests are available at any time. A closer reading, however, reveals that this is not the case. Section 19-4-112 depends on another statute, section 13-25-126, 5 C.R.S. (2001), to define the precise circumstances in which such tests are available and the procedures to be: followed when conducting such tests. In relevant portion, section 19-4-112 states:

Upon motion of the court or any of the interested parties, genetic tests or other tests of inherited characteristics shall be ordered and the results received in evidence, as provided in section 13-25-126, C.R.S.

(Emphasis added.) The language of section 13-25-126, to which section 19-4-112 refers, indicates that genetic tests are available only before a determination of paternity has occurred:

In any action, suit or proceeding in which the parentage of any child is at issue, upon motion of the court or any of the interested parties, the court shall order the alleged mother, the child or children, and the alleged father to submit to genetic testing and other appropriate testing ... for the purpose of determining probability of parentage.

§ 18-25-126(1)(a) (emphasis added).

Thus, under section 18-25-126, it is only when there is an "alleged" father that genetic tests are required. The statute is wholly inapplicable when there has already been an adjudication of paternity-when paternity has already been determined. In such a situation, it is no longer necessary for the court to determine "probability of parentage" because that determination has already been conclusively made.

In this case, R.L.C. is not the "alleged father"; he is the legal father, having been adjudged so. Hence, he cannot now obtain the genetic tests that he seeks. The trial court acted appropriately in denying his motion.

We note that this result is consistent with our conclusion that R.L.C. cannot now, eleven years after a judgment of paternity entered, challenge that judgment on the basis of mistake of material fact. It would be meaningless to require the genetic test when its results could not be used to challenge the judgment.

With this case, we reiterate that a legal finding of paternity entails-more than simply an analysis of DNA test results. N.A.H., 9 P.3d at 859 ("Parentage in our complex society comprises much more than biological ties. ..."); Ince v. Ince, 58 S.W.3d 187 (Tex.App.2001) ("Being a parent has always meant more than simply proving [that] the DNA necessary to create human life originated from a particular individual.... The judgment at issue in this case should not be set aside because one of the individuals involved has become unhappy with the continued existence of it. More should be required to terminate the parent-child relationship than simply establishing that the individual is not the biological parent."). Instead, as mentioned above, paternity determinations are made based on the best interests of the child. N.A.H., 9 P.3d at 864. It cannot seriously be contended that it would be in the best interests of J.A.U. to now conduct genetic testing that might reveal that the person that she believed to be her father is not her father and that would deprive her of financial support, particularly when no contention has been made as to who else might be J.A.U.'s father.

Our holding, that R.L.C. is not entitled to post-adjudication genetic or blood tests to be used to challenge the judgment of paternity, is consistent with the result reached by many jurisdictions that have considered this issue. See, e.g., City & County of San Francisco v. Cartagena, 35 Cal.App.Ath 1061, 41 Cal.Rptr.2d 797 (1995); De Weese v. Unick, 102 Cal.App.3d 100, 162 Cal.Rptr. 259 (1980); Schaffer v. Overby, 613 So.2d 128 (Fl.Dist.Ct.App.1993); Clay v. Clay, 397 N.W.2d 571 (Minn.App.1986); Watts v. Watts, 115 N.H. 186, 337 A.2d 850 (1975); Withrow v. Webb, 53 N.C.App. 67, 280 S.E.2d 22 (1981); Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988); In re L.S.G., 170 Wis.2d 231, 487 N.W.2d 644 (App.1992). Like us, these jurisdictions have recognized a policy in favor of protecting children from belated resort to scientific proof as part of efforts to escape parental responsibility.

IV. CONCLUSION

For the reasons discussed above, the judgment of the court of appeals is reversed and this case is remanded to it for return to the district court for further proceedings consistent with this opinion.

      . This was an issue that the trial court did not consider because the trial court did not interpret R.L.C.'s motion for genetic testing to be a motion for relief from the paternity judgment. The trial court limited its order to consideration of the relief that R.L.C. specifically sought through his motion: genetic testing.

      . The precise questions upon which we granted certiorari are:
      Whether the time limits of Rule 60(b) of the Colorado Rules of Civil Procedure apply when a legal finding of paternity is challenged on the basis of mistake of fact.
      Whether C.R.S. § 19-4-112, when read in its entirety mandates an order for genetic testing at any time in a paternity proceeding, including after a legal adjudication of paternity has been entered.

      . After the court of appeals issued its opinion, the parties voluntarily submitted to genetic testing. These tests revealed a 99.99% probability that RLC. is the biological father of J.A.U. Thus, RL.C. did not submit briefs to this court. Nevertheless, we choose to address the issues raised, relying on the briefs submitted by R.L.C. to the court of appeals, because of their public importance. See, e.g., Bd. of County Comm'rs of the County of Arapahoe v. Crystal Creek Homeowners' Ass'n, 14 P.3d 325, 345 (Colo.2000).

      . At the outset, we emphasize that our analysis in this case is limited to the questions upon which we have granted certiorari. We assume, for the purposes of this opinion and without considering these issues, that R.L.C.'s motion alleges that the paternity judgment was based on a mistake of material fact, as the court of appeals concluded, and that a man's erroneous assumption that he is the biological father of a particular child is the sort "mistake" that can justify relief from a judgment of paternity. We note, however, that there is some authority to the contrary on both questions. See, e.g., Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576-77 (10th Cir.1996) (stating that relief under Fed. R.Civ.P. 60(b) is available only if the mistake which forms the basis for the motion is an excusable litigation mistake and not a deliberate action}; Tandra S. v. Tyrone W., 336 Md. 303, 648 A.2d 439, 446 (1994) (stating that "mistake" means jurisdictional error and not unilateral error of judgment); Butler v. Brownlee, 152 Mont. 453, 451 P.2d 836, 839 (1969) (nothing that the trial court exceeded its jurisdiction in reopening the issue of paternity when the mov-ant's motion did not, on its face, purport to seek such relief).

      . C.RC.P. 59 pertains to motions for post-trial relief. These must generally be brought within fifteen days of entry of the judgment, and so are not relevant to this case. C.R.C.P. 60(a) pertains to clerical mistakes and is also not relevant here.

      . We reiterate that the granting of relief pursuant to C.R.C.P. 60(b) rests within the sound discretion of the trial court. See, e.g., Davidson, 16 P.3d at 238; State Farm Mut. Auto. Ins. Co. v. McMillan, 925 P.2d 785, 790 (Colo.1996); E.B. Jones Constr. Co. v. City & County of Denver, 717 P.2d 1009, 1013-14 (Colo.App.1986). An appeal from the denial of a motion for 60(b) relief raises only the question of whether the trial court abused its discretion and does not bring up the underlying judgment for review. 717 P.2d at 1014.

      . In total, CR.C.P. 60(b) provides ten reasons, divided into five categories, that a party may use to challenge a judgment: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud; (3) the judgment is void; (4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it was based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; and (5) any other reason justifying relief from operation of the judgment. C.R.C.P. 60(b). Different time limits apply depending on the category. Id.

      . We have previously held that C.R.C.P. 60(b) does apply to paternity judgments. Peercy v. Peercy, 154 Colo. 575, 579, 392 P.2d 609, 611 (1964). However, Peercy was decided before current Colorado paternity statutes, including section 19-4-105(2)(c), were adopted and so is not dispositive here.

      . With section 19-4-105(2)(c), the legislature codified the right to attack final adjudications of paternity for three specific reasons. We take no position on whether the legislature intended to prohibit other sorts of challenges, normally permitted under C.R.C.P. 60(b), since the basis for the challenge in this case, "mistake," is certainly available under both C.R.C.P. 60(b) and section 19-4-105(2)(c).

      . R.L.C. appeared pro se before the trial court. This fact does not affect our conclusions since he could have obtained legal counsel. A tactical error made because a party did not have an attorney is not ordinarily grounds for relief from a judgment. Viles v. Scofield, 128 Colo. 185, 187, 261 P.2d 148, 149 (1953).

      . A few states have adopted statutes that specifically permit courts to order genetic testing and use the results of those tests to set aside existing paternity judgments. See, eg., Ala. Code § 26-17A-i(a) (2001) Ark.Code Ann. § 9-10-e, 115(c)(1) (Michie 2001); 750 IIL Comp. Stat. eS 45/7(b-5) (2001); Md.Code Ann., Fam. Law § 5-1038(a)(2)()(2) (2001). However, those states often provide that such tests can only be obtained, and such challenges made, within a definite time period after the adjudication. Ark. Code Ann. § 9-10-115(c)(2) (Michie 2001) (five year limit); 750 IIL Comp.Stat. § 45/8(4-a) (2001) (two year limit).


author: WATT, V.C.J.,

text:
    2001 OK 16
    Mathew DOWLING, individually and as a Limited Partner in the Prado Verde Ranch Limited Partnership, Plaintiff-Appellee, v. PRADO VERDE RANCH, INC., a corporation, The Prado Verde Ranch Limited Partnership, and Jerome Willis, an individual, Defendants-Appellants.
    No. 93,137.
    Supreme Court of Oklahoma.
    Feb. 13, 2001.

      Elaine M. Dowling, Dowling and Dowling, Oklahoma City, OK, for Plaintiff-Appellee.
    Martin Postic, Jr., Postic & Bates, P.C., Oklahoma City, OK, for Defendants-Appellants.
   OPINION

WATT, V.C.J.,

¶ 1 The sole issue before us is whether the Court of Civil Appeals holding that defendants, the two Prado Verde Ranch entities and Jerome Willis, had waived appellate review of three requested instructions relating to the statute of frauds because defendants had violated Rule 1.11(e)(1), Oklahoma Supreme Court Rules, by failing to set out those instructions "in totidem verbis" in their brief? We hold that defendants did not waive appellate review of those instructions under the circumstances presented by this appeal.

¶ 2 The relevant facts are few. The trial court refused to give three instructions requested by defendants concerning the statute of frauds. Defendants included those requested instructions in their designation of record. Consequently all three instructions became part of the record on appeal. Rather that setting out those instructions in their brief or, as they would have been entitled to do, setting them out in an appendix, which may be a separate document under Rule 1.11(0(1),

defendants referred in their brief to the place where the instructions were to be found in the record on appeal. The defendants referred to the instructions in their brief as follows:

... Appellant proposed three jury instructions which concisely set forth the Oklahoma law on the statute of frauds applicable to the facts presented. (See, pages 000330-000334 of Record.)

Appellant's Brief in Chief, p. 9. Nevertheless, the Court of Civil Appeals, relying on Avard v. Leming, 1994 OK 121 ¶ 16, 889 P.2d 262, 266, held, sua sponte, that defendants had violated Rule 1.11(e)(1) and had "waived any issue related to the proffered jury instructions."

DISCUSSION

¶ 38 We grant certiorari in this matter in order to reexamine and clarify our jurisprudence as to what is required to preserve an error concerning instructions and to amend Supreme Court Rule 1.11(e). We do so because of the revolutionary changes that have taken place in the manner in which records on appeal and briefs are prepared since what is now Rule 1.11(e), Oklahoma Supreme Court Rules, was adopted.

¶ 4 The portion of Rule 1.11 that requires instructions that are raised as error to be set out in the brief in "totidem verbis" was originally passed by this Court as Rule XXV, Court Rules, Supreme court of Oklahoma, 20 Okla. xii, 95 P. viii (1980). [Emphasis added.] With respect to instructions, that rule read, "Also where a party complains of instructions given or refused, he shall set out in totidem verbis in his brief separately the portions to which he objects or may save exceptions." Much has changed in the manner in which the record on appeal is presented to this Court since 1908.

¶ 5 The advent of the modern copy machine encouraged Oklahoma, as well as most other jurisdictions, to liberalize the manner in which the record on appeal was prepared. Now, under 12 O.S. Supp.1997 $ 990A(C),

The Supreme Court shall provide by rule, which shall have the force of statute, and be in furtherance of this method of appeal:
2. The procedure to be followed by the trial courts or tribunals in the preparation and authentication of tran-seripts and records in cases appealed under this act ...

Rule 1.28(b), Oklahoma Supreme Court Rules, provides that a party shall designate a document to be included in the record simply by cireling the description of the document specified on the docket sheet. Rule 1.34 requires that the record be ready for transmission to the court within no more that six months after the date of the judgment or order appealed from. This Court's policy is to routinely order the record on appeal to be delivered to the Clerk of the Appellate Courts immediately after it receives notification from the district court clerk that the record on appeal has been completed and the briefing cycle is complete.

16 The effect of these modern procedures concerning the preparation and filing of the record on appeal has been that all of the relevant documents from the trial court in the form of a bound, indexed record on appeal are in the custody of the Clerk of the Appellate Courts immediately after they are completed and that the clerk delivers them with the briefs of the parties to the appropriate court when the time comes to consider the merits of the appeal. Thus, the record on appeal is as available to the judge or justice to whom a case is assigned for the purpose of preparing an opinion as are the briefs of the parties.

T7 Under these cireumstances, we see no significant difference between a reference to an instruction in a brief to the record on appeal than to such a reference to a separate appendix to the brief, as is authorized by Rule 1.11). Our opinion in Avard v. Leming, 1994 OK 121, 889 P.2d 262, which the Court of Civil Appeals relied on to reach its conclusion that appellants had waived any right to complain about the instructions, is thus distinguishable. In Avard, the appellant failed to insure that the instructions upon which she based her claim of reversible error were made a part of the record. Here, by contrast, appellants not only made sure that the requested instructions upon which they relied were included in the record but also included in their brief a citation to the specific pages in the record where those instructions could be found.

T8 We have concluded that the in totidem verbis requirement provided for in Rule 1.11(e) no longer meets the needs of the Court because of the substantial changes that have taken place in the way the record on appeal is prepared and made available to the Court by modern statutes and rules. Consequently, under the jurisdiction vested in us by Okla. Const., Art. 7 § 5, effective thirty days after final publication in the Oklahoma Bar Journal Oklahoma Supreme Court Rule 1.11(e)(1) shall provide:

(e) Summary of the Record.
(1) Appellate Briefs. The brief of the moving party shall contain a Summary of the Record, setting forth the material parts of the pleadings, proceedings, facts and documents upon which the party relies, together with such other statements from the record as are necessary to a full understanding of the questions presented to this Court for decision. Facts stated in the Summary of the Record must be supported by citation to the record where such facts occur. If the answering party shall contend that such Summary of the Record is incorrect or incomplete, that party's brief shall contain a Summary of the Record correcting any such inaccuracies with citation to the record. |
Where a party complains of the admission or rejection of testimony, that party shall set out the testimony to the admission or rejection of which the party complains, stating specifically the objections thereto. Where a party complains of an instruction given or refused, the party shall cite to the place in the record on appeal where said instruction may be found, together with the objection thereto.
When a party desires to set out instructions or requested instructions, or if it is necessary to set out admitted or rejected testimony, the party may set forth such material in either the Summary of the Record in the brief or in an appendix to the brief as described in Rule 1.11). A party need not include in the Summary of the Record all of the evidence in support of a claim that the record does not show or tend to show a certain fact, but when such a question is presented, the adverse party shall include in that party's brief or appendix so much of the evidence claimed to have had that effect. The Summary of the Record need include only a general statement of the substance of those parts of the record over which there is no controversy and which are not required to be shown in detail in order to present the issues to this Court, and such parts of the record as are purely formal and immaterial to the consideration of any issue presented to this Court may be omitted therefrom.

This rule shall have retroactive application.

T9 We remand this appeal to the Court of Civil Appeals for reconsideration in light of this opinion. We express no opinion on the merits of Appellants' argument that the trial court's failure to give their requested instructions constitutes reversible error.

CERTIORARI GRANTED, COURT OF CIVIL APPEALS' OPINION VACATED, AND APPEAL REMANDED TO THE COURT OF CIVIL APPEALS FOR FURTHER CONSIDERATION.

110 HARGRAVE, C.J., HODGES, LAVENDER, OPALA, KAUGER, BOUDREAU, and WINCHESTER, JJ.concur.

11 SUMMERS, J.-not participating.

      . Rule 1.1l1(e)(1), Oklahoma Supreme Court Rules, provides in material part as follows:
      (e) Summary of the Record.
      (1) Appellate Briefs. The brief of the moving party shall contain a Summary of the Record, setting forth the material parts of the pleadings, proceedings, facts and documents upon which the party relies, together with such other statements from the record as are necessary to a full understanding of the questions presented to this Court for decision. Facts stated in the Summary of the Record must be supported by citation to the record where such facts occur. If the answering party shall contend that such Summary of the Record is incorrect or incomplete, that party's brief shall contain a Summary of the Record correcting any such inaccuracies with citation to the record.
      Where a party complains of the admission or rejection of testimony, that party shall set out the testimony to the admission or rejection of which the party complains, stating specifically the objections thereto. Where a party complains of an instruction given or refused, the party shall set out in totidem verbis the instruction or the portion thereof objected to together with the objection thereto.
      When it is necessary to set out instructions or requested instructions in totidem verbis as provided by this Rule, or if it is necessary to set out admitted or rejected testimony, the party may set forth such material in either the Summary of the Record in the brief or in an appendix to the brief as described in Rule 1.11(i). A party need not include in the Summary of the Record all of the evidence in support of a claim that the record does not show or tend to show a certain fact, but when such a question is presented, the adverse party shall include in that party's brief or appendix so much of the evidence claimed to have had that effect.
      Emphasis added.] added.]

      . Rule 1.11(6)(1) provides:
      (i) Appendix to Brief.
      (1) Appeals. An Appendix to a brief shall not be filed except as permitted by this Rule. An Appendix to a brief may be filed as an attachment to the brief or as a separate document. An Appendix to a brief on appeal may include only: (1) a copy of the decision from which the appeal is taken; (2) copies of authorities not contained in the National Reporter System; (3) copies of statutes or rules not promulgated in Oklahoma; (4) attachments provided by Rule 1.1i(e)(1) relating to complaints about admission or exclusion or insufficiency of evidence; and (5) attachments provided by Rule 1.11(e)(1) relating to complaints about jury instructions. [Emphasis added.]

      . The full text of Rule XXV, Court Rules, Supreme Court of Oklahoma (1908) is as follows:
      The brief of the plaintiff in error in all cases except felonies shall contain an abstract or abridgment of the transcript, setting forth the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of the questions presented to this court for decision, so that no examination of the record itself need be made in this court. If the defendant in error or appellee shall claim that such abstract is incomplete for the purpose stated, his brief shall contain a counter abstract correcting any such omissions or inaccuracies. Where a party complains on account of the admission or rejection of testimony, he shall set out in his brief the full substance of the testimony, to the admission or rejection of which he objects, stating specifically his objection thereto. Also where a party complains of instructions given or refused, he shall set out in totidem verbis in his brief separately the portions to which he objects or may save exceptions. A party need not include in his abstract all the evidence in support of a claim on his part that it does not show or tend to show a certain fact, but when such a question is presented the adverse party shall print so much of the evidence as he claims to have that effect. The abstract shall state only the substance of those parts of the record the bearing of which upon the case can be clearly shown in this manner; such as are purely formal or otherwise immaterial shall be omitted altogether, but quotations must be made with verbal accuracy whenever the decision of any question in controversy may be affected thereby. Abstracts shall be indexed and shall refer to the pages of the record.
      The brief shall contain the specifications of the errors complained of, separately set forth and numbered; the argument and authorities in support of each point relied on, in the same order. The brief of the appellee or defendant in error shall also be printed when so required of the plaintiff in error, and contain, with pertinent reference to the pages of the abstract, any points challenging the right of plaintiff in error to be heard; a full statement of any additional facts shown by the abstract and deemed essential; citation of authorities and discussion of alleged errors, in the same order as in the brief of the plaintiff in error: Provided, that this rule as to abstracts being contained in the briefs shall not apply to felony cases.