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Introducing Evidence Of A Defendant’s Good Character Under CRE 404 (a) – In Colorado Domestic Violence Cases

By H. Michael Steinberg – Colorado Criminal Domestic Violence Defense Lawyer – Attorney

Colorado Criminal Trial Law – Introducing Evidence Of A Defendant’s Good Character Under CRE 404 (a) – In Colorado Domestic Violence Cases may be a critical step in persuading a jury of your innocence if you have been charged in Colorado with a domestic violation related crime.

This article addresses an important provision under the Colorado Rules Of Evidence (CRE) 404 (a) – that permits your lawyer to introduce evidence of your character for peacefulness in any case but especially cases involving allegations of some type of assault.

Here is an excellent YOUTUBE video on the operation of Rule 404 (a)

And Here Is Colorado Rule Of Evidence (CRE) 404 (a) (1)

Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of accused. In a criminal case, evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same or if evidence of the alleged victim’s character for aggressiveness or violence is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of alleged victim. In a criminal case, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(3) Character of witness. Evidence of the character of a witness as provided in Rules 607, 608, and 13-90-101.

(Section 404 (b) – stricken for this article) – (The Federal Rule of Evidence Is Identical.)

As you can see from the rule – the general rule of no character evidence has TWO exceptions.

One of the two exceptions is a specific allowance for evidence of the character of the accused.

But there are two restrictions on the exceptions. The first of these limitations is that the defendant must go first before the State of Colorado. That is the DA may not introduce character evidence regarding the defendant unless and until the defendant introduces character evidence about himself or herself.

The Defendant Holds The Key To Walk Through The Door Of Character Evidence

The rule is clear. A defendant – with only a few exceptions (see 404 (b) is protected from the government’s use of negative character evidence. Therefore a defendant holds the key to the “locked door” of character evidence. The DA may not argue that a defendant is “a bad person” who probably committed the crime charged, but a defendant is allowed to argue that he is “a good person” who probably did not commit the crime charged.

Introducing Evidence Of A Defendant’s Good Character Under CRE 404 (a) – In Colorado Domestic Violence Cases – Two Warnings – Limitations On The Rule

Limitation Number 1 – The Open Door Can Be Dangerous

Here’s the rub – if a defendant put’s his good character into play – such as in an alleged false allegation of domestic violence by stating that he would not do such a thing, and the people who know him will tell you that… and then chooses to call witnesses to say exactly that, the defendant loses the protection of the character evidence prohibition.

Once the door is unlocked – if there exists negative character evidence behind the unlocked doors and known to the State of Colorado, it also comes into evidence. Negative character evidence can be devastating.. The warning is this – know all there is to know about your client if you are the lawyer – and if you are the defendant – tell your lawyer all the bad as well as the good.. There is little room for surprises here.

Limitation Number Two – The Evidence Must Be In The Form Of Opinion and Reputation Evidence

Character evidence must also take only one form at trial. It must be presented in the form of opinion or reputation testimony only and cannot be based on specific instances of conduct.

The truth is – that is the best form there is. The testimony of character witnesses must be based upon personal opinion and knowledge of the defendant that he or she has a reputation for – say “peacefulness, is NOT a violent person” in an assault prosecution.

An Example:

One Colorado case dealing with a nursing home allegations of abuse – had these descriptions entered into evidence:

“The first character witness called, Virginia Harlan, testified that the defendant had a “fine reputation,” and that Norton’s Nursing Home was “excellent,” “very professional,” and had “impeccable business practices [with] no theft.” The second character witness, Arlene Linton, the executive director of the Colorado Health Care Association, testified that the defendant “has a great amount of respect from all of the individuals who deal routinely with nursing homes in Colorado,” and that she had “no reason to ever question” the defendant’s truth and veracity.”

Enter Rule 405. Methods of Proving Character

Here is the next relevant Rule of relevance:

Rule 405(a). Reputation or opinion

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

Rule 405(b). Specific instances of conduct

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.

Beware Cross Examination Of Reputation and Opinion Evidence Of Character

The good character evidence “tactic” in a Colorado criminal trial is not without its risks. After a witness testifies to positive evidence of good character, cross examination is permitted of course.

Enter CRE Rule 405. The operation of CRE Rules 404 and 405 were designed to give the defendant the option of opening up the issue of his reputation.

Let’s first restate the scenario. Under Rule 404(a)(1) a defendant has the option to bring in character evidence if he so desires this is a one way operation to an extent. That is the prosecution may not introduce character evidence solely to show a propensity to commit the crime. The state may not argue that a particular defendant is “a bad person” who probably committed the crime charged, but a defendant may make the argument that he is “a good person” who therefore probably did not commit the crime charged.

BUT once a defendant has opened up the issue of his character with respect to some specific and relevant trait of character, the prosecution is now free to cross-examine the defendant’s reputation witnesses by asking about specific acts of bad character. In addition, the prosecution is now free to call its own witnesses to testify to the defendant’s bad character.

AND, once again, a DA is that under the rules, the DA cannot bring in evidence of specific acts of bad character into evidence unless character is an essential element of a claim or defense.

The Rule: When a defendant’s character witness testifies regarding a character trait, that testimony may be rebutted or impeached on cross-examination by inquiry into specific instances of conduct. CRE 405(a)

Introducing Evidence Of A Defendant’s Good Character Under CRE 404 (a) – In Colorado Domestic Violence Cases

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at – [email protected] – A Denver Colorado Domestic Violence Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-227-7777.

If you are charged with A Colorado crime or you have questions about Introducing Evidence Of A Defendant’s Good Character Under CRE 404 (a) – In Colorado Domestic Violence Cases please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

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H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 40 years of day to day courtroom experience – specializing in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases.

Contact A Lawyer with Three Decades of Experience as a Denver Criminal Attorney at The Steinberg Colorado Criminal Defense Law Firm Today.

Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defense for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving … Introducing Evidence Of A Defendant’s Good Character Under CRE 404 (a) – In Colorado Domestic Violence Cases.

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Introducing Evidence Of A Defendant’s Good Character Under CRE 404 (a) - In Colorado Domestic Violence Cases

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Introducing Evidence Of A Defendant’s Good Character Under CRE 404 (a) - In Colorado Domestic Violence Cases may be a critical step in persuading a jury of your innocence if you have been charged in Colorado with a domestic violation related crime.

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H. Michael Steinberg