The Expanding Use of the Res Gestae Doctrine
| Jurisdiction | Colorado,United States,Federal |
| Citation | Vol. 38 No. 6 Pg. 35 |
| Pages | 35 |
| Publication year | 2009 |
2009, June, Pg. 35. The Expanding Use of the Res Gestae Doctrine
June 2009
Vol. 38, No. 6 [Page 35]
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law; legislation; and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, judge for the Second Judicial District Court, Denver
About the Authors
H. Patrick Furman, Boulder, is Clinical Professor of Law at the University of Colorado Law School--(303) 492-2638, furman@colorado.edu. Ann England, Denver, is Associate Clinical Professor of Law at the University of Colorado Law School--(303) 492-0285, ann.england@colorado.edu.
This article provides a brief history of the doctrine of res gestae and an analysis of its current usage in both Colorado state and federal courts.
The doctrine of res gestae allows the introduction of evidence necessary to give context to a charged offense. The doctrine has been used extensively in Colorado in recent years to admit a wide variety of evidence. The federal courts treat the doctrine quite differently, despite a shared common law origin.
This article provides a brief history of the doctrine, describes the definitions that have been given to res gestae in Colorado decisions, discusses some of the cases in which the doctrine has been used, and addresses the interplay between res gestae and the rules relating to relevance and "other acts" evidence. The article then addresses the treatment of the doctrine in the Tenth Circuit, noting some important but perhaps dissolving differences between the state and federal approaches.
"Res gestae" is translated as "things done,"(fn1) and generally is used to describe the circumstances in which potentially inadmissible evidence might otherwise be admitted to give context to the charged crime. The doctrine has its roots in the common law and appears to have come into common usage in the early 1800s to explain the admission into evidence of statements that were made at the time an event occurred.(fn2) The justifications were that witnesses needed to include such statements to complete the telling of the story of the event itself, and that the spontaneity of such statements rendered them reliable.(fn13)
The first reference to the doctrine by the U.S. Supreme Court came in 1817, in a decision holding that an agent's admissions against his principal are admissible when they are part of the res gestae.(fn4) In 1827, the Court held that the statements of a co-conspirator were admissible against a defendant because they were part of the res gestae.(fn5) Of course, these two particular applications of the doctrine are now governed by hearsay provisions of the Federal Rules of Evidence (F.R.E.).(fn6) Neither of the cases provided an explanation of the term.
In 1837, the Supreme Court ventured a definition of res gestae as synonymous with "surrounding circumstances."(fn7) Using this definition, the Court approved the admission of a legislative committee report that dealt with both parties and the subject matter of the litigation. In the ensuing 100 years, the term was used to justify the admission of evidence that today is admitted as an exception to hearsay, including statements of then-existing state of mind,(fn8) excited utterances,(fn9) the rule of completeness,(fn10) and statements made by a party opponent.(fn11)
The Colorado history of res gestae begins in 1872 in a case that described it as an exception to the general ban on hearsay.(fn12) Like the federal history just described, the initial Colorado history of res gestae is replete with cases that use the doctrine to address evidence in situations that would now be governed by the Colorado Rules of Evidence (C.R.E. or Rules). For example, the doctrine was used in 1873 to admit the statement of a co-conspirator;(fn13) in 1875 to admit the statement of a declarant as to his state of mind;(fn14) and in 1893 to bar the admission of statements that did not fall within the dying declarations exception.(fn15)
This admittedly incomplete history suggests that res gestae should have been subsumed within the subsequently adopted rules of evidence. Support for this conclusion comes from a 1949 decision of the U.S. Supreme Court that quoted extensively from an evidence treatise by Wigmore.(fn16) Wigmore's position was unambiguous: "The phrase `res gestae' has long been not only entirely useless, but even positively harmful."(fn17) It is "useless" in Wigmore's view because every application of the doctrine is actually part of, and explained by, "some other well-established principle."(fn18) It is harmful in his view because "it invites the confusion of one rule with another and thus creates uncertainty as to the limitations of both."(fn19) A similar, but more modern view, has been expressed by McCormick, who described res gestae as "a historical relic to be jettisoned from modern hearsay analysis."(fn20)
The academic suggestion that the doctrine of res gestae ought to be jettisoned has not been accepted by the courts, at least not in Colorado. People v. Workman(fn21) expressly rejected the argument that the doctrine was superseded by the adoption of the C.R.E., and subsequent cases make clear that the doctrine is still alive. In fact, the current use of res gestae in Colorado state courts appears to go far beyond even the limited historical use about which Wigmore and McCormick so strongly complained.
People v. Quintana(fn22) includes a comprehensive discussion of res gestae by the Colorado Supreme Court. This 1994 opinion addressed the decision of the trial court to admit three statements made by a defendant charged with murder. The three statements involved threats to murder other people made by the defendant during or while driving away from the murder at issue. At trial, the parties analyzed the statements under C.R.E. 404(b). A four-justice majority of the Court held that the statements were admissible as res gestate.
Quintana offered several definitions of res gestae. These definitions included:
1) "[e]vidence of other offenses or acts that is not extrinsic to the offense charged, but rather is part of the criminal episode or transaction with which the defendant is charged . . . to provide the fact-finder with a full and complete understanding of the events surrounding the crime and the context in which the charged crime occurred";(fn23)
2) evidence that "is generally linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury;"(fn24)
3) "the circumstances, facts and declarations which arise from the main event and serve to illustrate its character";(fn25) and
4) "evidence that is closely related in both time and nature to the charged offense."(fn26)
Later in the opinion, while distinguishing res gestae from other acts evidence, the Court cited with approval an Eleventh Circuit holding describing res gestate as evidence that is "inextricably intertwined with evidence regarding the charged offense."(fn27)
Whichever definition is controlling, the statements at issue in Quintana fit. The statements were linked in time with the charged murder because they occurred either during or immediately subsequent to the murder. The statements "are all linked in time to a single criminal episode, and indeed, form a natural part of the criminal episode as a whole."(fn28) Quintana claimed that he was intoxicated and incapable of forming the requisite intent; the statements were inextricably linked to this claim to prove that Quintana "was conscious that his actions amounted to killing, was conscious of the meaning of the word `kill' and could verbalize his desire to engage in the same action again."(fn29) Thus, under even the narrowest of the definitions in Quintana, these statements were admissible as res gestae.
The majority's view was rejected by three justices. They argued that the statements should be analyzed under Rule 404(b) because the prosecution did not use the statements simply to refute Quintana's state of mind, but also used the statements to show that he intended to eliminate witnesses--that is, that he had a bad character. The justices found that the evidence had no other probative value. The fact that the statements were made in close temporal proximity to the murder did not automatically make them relevant. According to the minority, the statements should not have been admitted because they "fail to provide an understanding of the context in which the crime occurred or set a background for the events leading up to the victim's murder."(fn30) Ultimately, the minority concurred in the result. They concluded admission of the statements was harmless in light of the other overwhelming evidence of guilt.
The first time the Colorado Supreme Court addressed res gestae after Quintana, it reversed convictions for sexual assault on a child because the trial court erroneously admitted, as res gestae, evidence of three other sexual assaults, allegedly committed by the same defendant against the same victim. People v. Rollins(fn31) held that the uncharged incidents "were neither contemporaneous with nor provided a background for the offense charged."(fn32) The charged offense occurred between June 1 and June 6, 1989, and the three uncharged offenses all occurred between March and June of that same year. The findings that this uncharged conduct did not help explain the...
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