Chapter 8 - § 8.4 • PRIOR BAD ACTS

• Jurisdiction: Colorado

§ 8.4 • PRIOR BAD ACTS

§ 8.4.1—Introduction

Similar to prior felony convictions, "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." CRE 404(b). However, these other crimes, wrongs, or acts (generally referred to in combination as prior bad acts) can be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. This category of impeachment material includes prior convictions that would not otherwise qualify under the previous section, like misdemeanor convictions or felonies in a civil matter that are more than five years old. See People v. Arzabala, 317 P.3d 1196 (Colo. App. 2012) (in traffic prosecution for driving after revocation, evidence of defendant's prior driver's license revocations for habitual traffic offenses was allowed to show defendant's knowledge that his license was not valid at the time of offense).

Attorneys should be clear in delineating the specific theory of admissibility when using prior bad acts evidence. It is legally insufficient to "merely list the litany of permissible uses for such evidence." People v. Masters, 58 P.3d 979, 996 (Colo. 2002). Instead, proponents of such evidence "must articulate a precise evidential hypothesis by which a material fact can be permissibly inferred from the prior act independent of the use forbidden by CRE 404(b)." People v. Spoto, 759 P.2d 1314, 1319 (Colo. 1990).

This does not mean that evidence is limited to only one specific evidentiary theory — rather, the same piece of evidence can support multiple theories of admissibility under Rule 404(b).

Evidence of prior bad acts is most commonly submitted by the prosecution in a criminal case against a defendant, and can be admitted whether or not the defendant elects to testify. People v. Warren, 55 P.3d 809 (Colo. App. 2002) (evidence of defendant's methamphetamine distribution one year prior to prosecution for possession of controlled substances was allowed to show opportunity, knowledge, and absence of mistake).

Where the prosecution seeks to introduce 404(b) evidence in a criminal case, an accused is entitled to both pretrial notice and a pretrial determination on admissibility. CRE 404(b). Rule 404(b) was amended in 2021 to include a new notice requirement specific to the prosecution.

Previously, best practice for an accused in a criminal case was to file a request for notice of intent to introduce 404(b) material along with other suppression, constitutional, evidentiary, and procedural motions. Effective July 1, 2021, however, the prosecutor "must:

(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial—or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

CRE 404(b)(3).

Practitioners will have to wait and see how courts interpret the new notice requirements under Rule 404. In the meantime, there are some practical steps every attorney in a criminal defense case should take to protect his or her record and help guide courts in applying these new requirements.

First, filing pretrial...