Colorado Criminal Law – Expert Testimony In Colorado Domestic Violence Cases – Unfair and Unjust

Colorado Criminal Law – Expert Testimony In Colorado Domestic Violence Cases – Unfair and Unjust

By H. Michael Steinberg Colorado Domestic Violence Criminal Defense Lawyer

Colorado Criminal Law – Expert Testimony In Colorado Domestic Violence Cases – Unfair and Unjust

Colorado Criminal Law - Expert Testimony In Colorado Domestic Violence Cases - Unfair and UnjustObtaining a conviction in Colorado Domestic Violence cases years ago was the same as every other kind of case – a trial on the facts and evidence of the underlying the charge in the case that was going to trial. Today, as a result of new laws passed by the Colorado State Legislature unjustly allowing prior allegations of acts of domestic violence and the unfair use of so called “domestic violence” experts sometimes in these very same case – the trial of a Colorado Domestic Violence case has become even more one sided – and that is the side of the Government.

Allowing Prior Alleged Acts Of Domestic Violence – Even If Never Prosecuted

The reasoning for allowing prior alleged acts of domestic violence to convict on present charges of domestic violence is statutory – that means the law actually encourages the use of this evidence at trial.

These laws are found in the Colorado Rules of Evidence CRE 404(b) and Section 18-6-801.5 C.R.S.

The Key Colorado Rule Of Evidence Is CRE 404(b)

CRE 404(b) (as well as Section 18-6-801.5 – below) allows a trial court to admit at the trial of a domestic violence case – evidence of other acts of domestic violence between the accused and the defendant and an alleged victim (or even other alleged victims) IF the evidence shows:

…a common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or some other purpose.

After allowing this incredibly damaging evidence to be heard by a jury – the judge – according to the law – must instruct the jury that the evidence was only admitted for a limited purpose for which the other act evidence is admissible. This fine legal distinction – in my opinion – is completely lost on the jury. The myth that the jury does not convict because they hear that acts of domestic violence have happened before – is just that – a MYTH.

Such evidence ALWAYS has enormous impact on every jury especially in close – DEFENSIBLE – cases.

The rule in Colorado criminal cases as to the admission of this so called “BAD CHARACTER” evidence – ( this principle is based on basic due process of law and foundational FAIRNESS) is that evidence of other crimes, wrongs, or acts NEVER admissible if the relevance of that evidence depends on an “inference that the person has a bad character and acted in conformity with that character.” CRE 404(b).

When The DA seeks to admit this bad character evidence – the Judge is ordered by law – before admitting this kind of evidence – to determine that:

(1) the evidence relates to a material fact;

(2) the evidence is logically relevant;

(3) the logical relevance is independent of the prohibited inference that the defendant has a bad character; and

(4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice

Meeting the second requirement – “the logical relevance requirement’ for the admission of other act evidence is easily satisfied. The evidence must have “any tendency to make a fact of consequence more probable than it would be without that evidence.”

The DA will always argue that prior alleged acts of violence – previously charged and proven in a court of law OR NOT – demonstrates that it is more probable that the person accused of domestic violence this time intended to commit another act of domestic violence.

The third requirement – that the prior act is “independent of the prohibited inference that the accused has a bad character” is also easily glossed over by trial judges.

Finally the fourth requirement that the probative value of the prior act evidence cannot be “substantially outweighed by the danger of unfair prejudice” and is not ” likely to inflame the jury”  is almost never used by trial judges to exclude the evidence.

The Trial Judge’s Admission Of Bad Acts Evidence Is Almost NEVER Overturned ON Appeal

The Judge’s decision is nearly unassailable on appeal if the case is lost at trial and the accused convicted. Known as the “abuse of discretion” standard – the Judge’s decision to admit this kind of evidence is almost never reversed on appeal.

Here Is The Entire Law That Governs The Admission Of This Evidence In Colorado Domestic Violence Cases

18-6-801.5. Domestic violence – evidence of similar transactions.

(1) The 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.

(2) In criminal prosecutions involving domestic violence in which the defendant and the victim named in the information have engaged in an intimate relationship as of the time alleged in the information, evidence of any other acts of domestic violence between the defendant and the victim named in the information, and between the defendant and other persons, constitute other acts or transactions for the purposes of this section, and the court may authorize the admission of evidence as provided in subsection (3) of this section.

(3) The proponent of evidence of other acts or transactions under this section shall advise the trial court by offer of proof of such evidence and shall specify whether the evidence is offered to show a common plan, scheme, design, identity, modus operandi, motive, or guilty knowledge or for some other purpose.

(4) Upon the offer of proof under subsection (3) of this section, the trial court shall determine whether the probative value of the evidence of similar acts or transactions is substantially outweighed by the danger of unfair prejudice to the defendant, confusion of the issues, or misleading of the jury if the evidence is allowed or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

(5) Upon admitting evidence of other acts or transactions into evidence pursuant to this section and again in the general charge to the jury, the trial court shall direct the jury as to the limited purpose for which the evidence is admitted and for which the jury may consider it.

Adding Insult To Injury – Admitting Domestic Violence Expert Testimony In Colorado Domestic Violence Cases

In some trials – usually right after the BAD CHARACTER evidence is admitted under CRE 404(b) – the DA will call an “expert” in domestic violence theory to “explaine the dynamics of an abusive relationship.”

The expert is permitted to explain to the jury the relationship dynamic that is “at the crux of domestic violence.” The testimony usually addresses the exertion of power and control by the relationship’s abusive member and that abusive relationships occur in a three stage “recurring ” – “cycle of violence,” during which time the violence will escalate if not stopped.

Fighting The Admission Of Expert Testimony In Colorado Domestic Violence Cases

The arguments in support of admitting experts in the social science area of the study of domestic violence focus on the perceived “need” to dispel myths about battered women or the further intention to “educate” juries about the dynamics of domestic violence.

This “non-scientific” expert testimony is dangerous as discussed above. The thinking behind the admission of the expert is to help the “average persons” on the jury “understand” domestic violence theory. Let’s take another look at this type of testimony.

Types Of So Called Expert Domestic Violence Testimony

There are basically three types of expert opinions offered in this context as to the dynamics underlying a domestic violence relationship.

They are:

(1) the clinically based opinion,

(2) the social framework opinion, and

(3) a hybrid of the clinically based and social framework opinions.

The clinically based opinion assesses the specific relationship in the case at trial which includes the effects of the alleged battering on the specific relationship then under examination.

The social framework opinion addresses only the major outlines of domestic violence relationships and does not address the specific relationship at trial.

The hybrid opinion obviously offers a clinical opinion about the specific abuse in the case at trial but then plugs that into the general research into the the behavior of the domestic violence victim.

A Recent Case Allowing The Admission Of “Overkill” Evidence In A Colorado Domestic Violence Case – The Shreck Line Of Cases

In the recent Colorado case People v. Ruibal (2015) the Colorado Court of Appeals the admission of expert testimony on “overkill” theory in the context of a homicide attributed to domestic violence.

“Overkill” Theory In Domestic Violence Cases

“Overkill” is used to describe an attack that goes far beyond what is necessary to successfully commit the crime charged. In the Ruibal case the trial judge allowed the testimony of a pathologist that the method of the commission of the crime was an example of an act of domestic violence. The expert relied on the theory of overkill.

The trial judge – before admitting the evidence conducted what is generally referred to as a Shreck Hearing under Colorado rule of evidence (CRE) 702.

Here Is How Colorado Rule of Evidence 702 operates.

The rule – CRE 702 – allows the testimony of an expert witnesses if they are first qualified by their knowledge, skill, experience, training, or education to testify on the subject matter at hand and if the trial judge “determines that it will assist the trier of fact to understand the evidence or determine a fact in issue.”

A Colorado Shreck Hearing requires the following tests be applied before admitting the expert testimony.

The must determine that:

(1) the scientific principles underlying the testimony are reasonably reliable;

(2) the expert is qualified to opine on such matters;

(3) the expert testimony will be helpful to the jury; and that

(4) pursuant to CRE 403, the evidence’s probative value is not outweighed by the danger of unfair prejudice.

The judge must make a determination of relevance and reliability of the evidence using these standards and is required to issue specific findings regarding that analysis.

In Ruibal – even though the trial judge never made the critical specific findings – the Colorado Court of Appeals did not reverse the verdict and remand for a new trial. The defense theory of the case was that an alternate suspect had actually committed the crime. The trial judge permitted the introduction of “overkill” testimony to be used by the DA to prove that “the perpetrator likely had an emotional attachment to (the victim), thus tending to disprove Ruibal’s alternate suspect theory.”

Even though the trial court never made a specific finding – as required by the Shreck analysis – that the scientific principles underlying “overkill” testimony were reasonably reliable, the Court of Appeals would not reverse the lower court based on that clear error.

Allowing “overkill” evidence to prove the element of identity in a Colorado Domestic Violence Case for the first time – the Court of Appeals referred to decisions in other states that have permitted the evidence in a domestic violence trial then justifying their decision not to reverse with this statement pointing to the huge discretion given to trial judges on this issue:

…our conclusion is consistent with the broad discretion given to trial courts in admitting expert testimony in domestic violence cases.

The Court of Appeals specifically referred to the underlying reason for allowing this kind of expert “social framework” evidence saying the following and citing an article:

Because jurors may not have experience with domestic violence, expert testimony is often relied on to explain victim and defendant behavior in such cases. See Myrna S. Raeder, The Better Way: The Role of Batterers’ Profiles and Expert “Social Framework” Background in Cases Implicating Domestic Violence, 68 U. Colo. L. Rev. 147, 182-83 (1997)

The Use Of Expert Testimony In Domestic Violence Cases Is Expanding

Judge’s are persuaded that jurors need additional “background” information specific to domestic violence cases. The reach of this form of testimony is ever expanding. Expert testimony is being allowed across the country to explain:

  • victims’ recantations, and the escalating nature of abusive relationships.
  • the battered woman syndrome.
  • the “cycle of violence” and why alleged victim’s “recant.”

Summary and Conclusion – Colorado Criminal Law – Expert Testimony In Colorado Domestic Violence Cases – Unfair and Unjust

There are serious problems not only as to reliability of the use of expert testimony in Colorado domestic violence cases – after Ruibal – there is not even a requirement that a finding of a reliability of that evidence before admitting the evidence – since it can now be “inferred.”  Colorado criminal defense lawyers should compel Colorado courts to apply the strict requirements of the Shreck case and stop this testimony.

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Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at – A Denver Colorado 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 – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

HMS logo whiteYou must make a responsible choice for a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 30 plus years – H. Michael has mastered nearly every area of criminal law, procedure and trial and courtroom practice and he is passionate about getting you the best result in your case. He has written and continues to write extensively on Colorado criminal law and he hopes this article – – helps you in some small way. H. Michael hopes you found this page helpful – Colorado Criminal Law – Expert Testimony In Colorado Domestic Violence Cases – Unfair and Unjust.


Colorado Domestic Violence Lawyer