One of the most controversial areas of criminal law is whether the prosecution is allowed to use a defendant’s past bad acts against him or her to prove that the accused committed an offense. There is a general legal principle that evidence of other crimes or bad acts are not admissible as evidence to show that, at another time, a defendant acted in conformity with that character. So how is the prosecution allowed to use past bad acts in a trial?
It is now well settled law that a prosecutor is permitted to use past bad acts as evidence at trial to prove “another purpose.”[i] In Colorado, examples of those other purposes are motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.[ii] The prosecution must provide notice to a defendant in advance of trial that it intends to use past bad acts, and it must state a specific purpose for using such evidence.[iii]
The trial judge acts as a gatekeeper to determine if the past bad act evidence can be admitted and the purpose for which it can be used. The court applies a four-part test to make this determination:
- the evidence must relate to a material fact;
- the evidence must be logically relevant, meaning it has any tendency to make the existence of the material fact more probable or less probable than it would be without the evidence;
- the logical relevance must be independent of the prohibited intermediate inference that the defendant committed the crime charged because of the likelihood that he acted in conformity with his bad character; and
- the probative value of the evidence must substantially outweigh the danger of unfair prejudice.[iv]
In domestic violence cases, the admissibility of past bad acts under CRE 404(b) is further strengthened by state law. Colorado statute § 18-6-801.5 expressly states: “[t]he general assembly hereby finds that domestic violence is frequently cyclical in nature, involves patterns of abuse, and can consist of harm with escalating levels of seriousness. The general assembly therefore declares that evidence of similar transactions can be helpful and is necessary in some situations in prosecuting crimes involving domestic violence.” The added effect of this statute directs courts to favor admission of past bad acts in domestic violence cases: “[i]ndeed, in enacting that statute, ‘the General Assembly placed its finger on the scale in favor of admitting evidence of prior acts of domestic violence…’”[v]
Frequently, domestic violence does not arise from an isolated event. There is a track record of escalating physical conflict between parties. The prosecution likely has evidence of past bad acts it may use as evidence against a defendant. Challenging these incidents to keep them out of a trial is both very complex and time-intensive. Simply saying “it is not fair” is insufficient. Therefore, it is prudent for a person accused of domestic violence to retain the services of experienced Colorado criminal defense attorneys – like those at Mile High Legal – to protect one’s rights and ensure the fairest outcome to a case. Contact us for a free consultation.
[i] CRE 404(b)(2)
[ii] Id.
[iii] CRE 404(b)(3)
[iv] People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990)
[v] People v. Cross, 2023 COA 24, ¶ 22
