13.1 - General Overview13.2 - Judicial Notice and Presumptions13.3 - Relevancy13.4 - Privileges13.5 - Witnesses13.6 - Opinions and Expert Testimony13.7 - Hearsay13.8 - Exhibits13.9 - The Use of Other Offenses and Acts13.10 - Selected Special Rules13.11 - Colorado Rules of Evidence


One basic rule of American jurisprudence - and of basic fairness - is that a person should be tried on the basis of what he did or did not do at the time in question; he should not be tried on the basis of acts or mistakes or crimes he may have committed in the past. This basic rule is set forth in CRE 404(b) which provides that "evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith."

As always, however, there are exceptions to the basic rule banning other crimes evidence. CRE 404(b) provides that evidence of other crimes, wrongs or acts may be admissible for purposes other than to prove that the person acted in conformity with the character trait. The rule lists some of the 'other purposes' for which such evidence might be admissible. The list includes "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." This rule, by its terms, applies to any person, but the issues raised by the rule generally arise in criminal cases when the prosecution is attempting to use evidence of other acts against the defendant. The following discussion is based on that premise.

Determining whether evidence of other acts should be permitted or barred is often difficult. A party wishing to introduce evidence of other acts should file a notice of an intention to do so. This notice enables the trial court to hold a hearing prior to trial and resolve the issues. At the hearing, the proponent of the evidence should offer proof - through live testimony or otherwise - that the defendant committed the other act, and that the other act is relevant to prove some fact that is at issue in the case.

The method that trial courts use to resolve these issues is based on a series of decisions by the Colorado Supreme Court and is often referred to as the Spoto-Garner test. Under this test, the trial court must first find by a preponderance of all of the evidence (that is, more likely than not) that the defendant did, in fact, commit the other act. If so, the court should follow the following four-part test to determine whether, by a preponderance of all of the evidence presented, the policy concerns underlying the general ban on other acts evidence have been met. The test asks 1) does the evidence relate to a material fact; 2) is the evidence logically relevant; 3) is the relevance independent of the impermissible inference that the defendant has a bad character in conformity with which he acted; and, 4) does any unfair prejudice of the evidence substantially outweigh the probative value. If the evidence relates to a material fact, is relevant, and is independent of the impermissible inference that the defendant is simply acting in conformity with some bad character trait, then the evidence of the other acts will be admitted as long as the probative value of the other acts evidence is not substantially outweighed by the danger to the defendant of unfair prejudice.

An example may help illustrate this rule. In the Garner case, the Colorado Supreme Court was considering whether the trial court properly admitted evidence that the defendant killed two other people. This evidence was offered by the prosecution to help prove the identity of the defendant as the perpetrator of the charged murder. The prosecution case was circumstantial and was based on a theory that the defendant, who was the victim's supervisor at work, had sexually assaulted and strangled her when she tried to break off their previously intimate relationship.

The other crimes evidence was that the defendant had strangled two other women with whom he had an intimate relationship. Defendant had pleaded guilty to manslaughter in the strangulation death of his wife. The other homicide was the strangulation of another trainee working under the defendant.

The Supreme Court ruled that the evidence was material as it related to an issue in the case - identity. It was logically relevant in that it made the identification in the case more probable than it would have been without the evidence because of the distinctive similarities in the three offenses. This logical relevance was independent of any inference of bad character. (Clearly, establishing that someone has committed other murders shows that the person has bad character, but that does not change the fact that the evidence of the other murders also has independent logical significance.) Last, the Court held that the trial court did not err in finding that the probative value of the other crimes evidence was not substantially outweighed by the danger of unfair prejudice to the defendant. The jury is instructed on the limited use of such evidence, although such instructions are hard to follow.

The inquiry into the use of evidence of other crimes wrongs or acts is very fact-specific. The decision whether to admit usually turns on the nature of the crime charged, the specific defense being used, the nature of the other crime or act, and the specific use for which the other crime evidence is being offered. Trial courts must balance the need to restrict the use of other crimes evidence with the need to ensure that the jury hears all relevant evidence.

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