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A Denver Colorado Child Abuse Lawyer Explains The Law On The Limits On The Use Of Prior Bad Acts – Other Crimes – Bad Character Evidence At Trial

By H. Michael Steinberg – Colorado Child Abuse Criminal Defense LawyerEmail the Author 

A Denver Colorado Child Abuse Lawyer Explains The Law On The Limits On The Use Of Prior Bad Acts - Other Crimes - Bad Character Evidence At TrialA Denver Colorado Child Abuse Lawyer Explains The Law On The Limits On The Use Of Prior Bad Acts – Other Crimes – Bad Character Evidence At Trial – In a Colorado child abuse case emotions are especially heightened and the admission of evidence that the defendant has done other kinds of bad acts is inherently inflammatory to a jury.

Juries in child abuse cases have a natural revulsion against such abuse. If a trial judge admits what the law calls ” uncharged misconduct” this greatly increases the chances of a verdict of guilty. When this kind of evidence is admitted at trial a defendant is stigmatized by evidence not necessarily that he committed the crimes charges in THIS case -but that he is the kind of person who would commit child abuse.

Again – the danger is that when a jury hears uncharged and unrelated other bad acts crimes conduct makes the jury want to punish the defendant and convict him of the charged offense to punish him for the uncharged misconduct.

Other kinds of misconduct, independent of the actual charged crime of child abuse can bias a jury – and this violates one of the most fundamental principles of our legal system – a person should be tried only for those crimes with which he has been charged.

The penalties for violations of Colorado criminal laws must be imposed ONLY for the unlawful acts charged, not for bad character or a “predisposition to commit certain crimes.”

A prosecutor must not be allowed to try to prove that a defendant is either generally a criminal  and that on this particular occasion he was acting “in conformity with his usual criminal ways.”

Understanding Colorado Trial Law On Bad Acts Evidence in Child Abuse Cases

A tactic used by prosecutors – in often difficult to prove child abuse cases – is to try to admit into evidence what is called other bad acts evidence. The admission of this evidence of past acts is usually offered to prove the defendant’s mental state at the time of the crime or crimes.

To be admissible the evidence must be relevant, apart from any inference of bad character, to show that the defendant had the requisite mental state at the time of the crime – usually charged as having acted “knowingly and recklessly” — rather than mistakenly — toward the victim in the case.

Why This Kind Of Bad Act Evidence Should Never Be Admitted In Colorado Child Abuse Cases

The admission of evidence of other bad acts unfairly exposes a defendant to the risk of being found guilty based on bad character rather than on evidence relating to the charged offense.

In Colorado under Colorado Rules Of Evidence 401, 403, and 404(b), a trial judge can admit evidence of a defendant’s other bad acts if:

(1) the evidence is offered for a proper purpose;

(2) the evidence is logically relevant to a material issue in the case;

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

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

A Trial Judge Has Great Discretion In Allowing Or Keeping This Evidence Out Of The Hearing Of The Jury

Trial judges have considerable authority in deciding whether to admit this kind of evidence.

The judge’s decision to allow this evidence to be heard by a jury is reviewed by a higher court on what is called “an abuse of discretion” standard.  Under this standard the judge’s decision will only be revered it there is a showing that the judge ” misconstrued or misapplied the law or otherwise reached a manifestly arbitrary, unreasonable, or unfair result.”

How Can This Kind Of “Bad Acts” Evidence Be Allowed Into A Colorado Child Abuse Trial?

Evidence indicating that a suspect of child abuse engaged in abusive behavior toward another child in the past can be offered by a prosecutor to make it more probable, as a logical inference, that the defendant knew that his conduct toward the child in the case in trial would have a particular result at the time the alleged abuse happened. This is seen as a demonstration of a pattern of engaging in a type of conduct to accomplish a particular end or result – that is – child abuse. 

This kind of evidence can be devastating to the defense and must be stopped at all costs.

The Experienced Colorado Criminal Defense Lawyer Should Fight The Admission Of “Other Act Evidence” Offered To Prove A Defendant’s Mental State Of Knowledge or Recklessness

On e of the key elements of any Colorado child abuse charge is the requirement to prove knowledge or recklessness on the part of the suspect. 

This kind of bad acts may be admitted to prove:

(1) the defendant revealed guilty knowledge of a circumstance or risk;

(2) the defendant gained direct knowledge of a fact or risk relevant to a charged offense;

(3) the defendant learned something which circumstantially provides evidence of knowledge (or recklessness) at the time of the crime; or when

(4) the other bad acts tend to prove the requisite knowledge by virtue of the doctrine of chances.

The Complex Colorado Law Of “The Doctrine of Chances”

The legal reasoning underlying the doctrine of chances is that it is unlikely that a defendant would be repeatedly and innocently is involved in similar suspicious situations. The argument is that if a defendant repeatedly performs a certain kind of voluntary act –  there is a likelihood that he did not act with an “innocent state of mind.”

The pure recurrence or repetition of the act therefore increases the likelihood that he acted with a guilty mind – the right mens rea or mind at fault.

If the prosecutor is seeking to prove the mind set (mens rea) of the accused under the doctrine of chances, the uncharged act should MUST CLOSELY PARALLEL THE CHARGED CRIME. The acts must be similar in material respects. If they are –  the DA will most likely argue that the similarity justifies the admission of the acts to disprove “innocent intent.”

The most important factor in this analysis is whether the two acts required the same state of mind.

The prior conduct must involve the same intent that the prosecution seeks to establish in the charged offense. The evidence becomes relevant under the doctrine of chances because the defendant has the same state of mind in the commission of both the extrinsic act and the charged offense. The charged crime – child abuse for example – and the extrinsic evidence -(another act of child abuse with a different child) – must be similar enough in their characteristics to permit an inference that the defendant had the same state of mind when committing both acts.

The prosecutor will most likely argue that evidence of a past “knowing” or “reckless” abuse of a child is proof that the act in this present trial was also the “knowing” or “reckless” abuse of a child.

The doctrine of chances also applies to the use of uncharged misconduct to disprove a claim of mistake or accident. The State will try to use the doctrine of chances to prove the alleged child abuse in question was not a mistake or accident.

If The Evidence Is Admitted And Its Admission Is Found To Be An Error On Appeal

A finding on appeal that bad acts evidence was improperly admitted, there is no guarantee of a reversal of the jury’s verdict and a new trial

Colorado appellate courts consider a number of factors such as the overall strength of the state’s case, the impact of the improperly admitted or excluded evidence on the judge or jury as trier of fact, whether the proffered evidence was cumulative, and the presence of other evidence corroborating or contradicting the point for which the evidence was offered.

If the State’s case evidence of child abuse was strong – the Colorado Courts of Appeal are most likely to find the impact of the improperly admitted evidence on the trier of fact “harmless error.” inquiry

The question is – was this a”close case” for the jury? Closeness” here means – whether the evidence at trial was not only sufficient to convict – but the evidence of guilt was sufficiently powerful in relation to the tainted (bad act) evidence to give “fair assurance” that the tainted evidence did not “substantially sway” the jury to its verdict.

Error is considered “harmless” where there is no reasonable probability that the error contributed to the defendant’s conviction by substantially influencing the verdict or impairing the fairness of the trial.

In the final analysis – this evidence is unfair and your Colorado criminal defense lawyer should do everything possible to keep the evidence out of the hearing of the jury.  If it is admitted at trial – there is little likelihood of the Colorado Courts of Appeal reversing the verdict on that basis.

A Denver Colorado Child Abuse Lawyer Explains The Law On The Limits On The Use Of Prior Bad Acts – Other Crimes – Bad Character Evidence At Trial

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ABOUT THE AUTHOR: H. Michael SteinbergEmail The Author A Denver Colorado Child Abuse 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.

If you are charged with A Colorado crime or you have questions about the topic of this article – A Denver Colorado Child Abuse Lawyer Explains The Law On The Limits On The Use Of Prior Bad Acts – Other Crimes – Bad Character Evidence At Trial, 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.

Colorado Criminal Lawyer - 30 years of ExperienceH. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 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.

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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 the topic of this article A Denver Colorado Child Abuse Lawyer Explains The Law On The Limits On The Use Of Prior Bad Acts – Other Crimes – Bad Character Evidence At Trial.


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H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
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