People v. Mojica-Simental
In People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003), the Court stated in dicta that waiver of the right to confrontation must be voluntary, knowing, and intentional. 73 P.3d at 20.
The Court noted that "if a defendant does not have actual notice of the requirements of the statute, or mistakenly fails to notify the prosecution to have the technician present to testify, there is a significant possibility that a defendant's failure to act may not constitute a voluntary waiver of his fundamental right to confrontation." Id. at 20-21.
The Court suggested a number of factors for a trial court to consider when determining the admissibility of a lab report under section 16-3-309(5), including whether "an attorney or a pro se litigant actually knew that he was required to notify the opposing party of his desire to have the witness present." Id. at 21.
The dicta in Mojica-Simental was based on the faulty premise that the right to confrontation can only be waived if the defendant personally makes a voluntary, knowing, and intentional waiver. 73 P.3d at 20.