H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Case Exemplifies The Use of “Prior Tranactions” Evidence in Domestic Violence Cases

LOCKPORT–Niagara County Judge Matthew J. Murphy III on Friday scheduled an Aug. 4 hearing on whether prosecutors will be allowed to tell a jury that Gwendolyn Garcia, charged with the stabbing death of her boyfriend, had a vegetable thrown at her by the victim 3z years before.

Garcia, 31, admits that she killed Randy R. Whitney, 38, in their Hartland apartment. In a trial for first-degree manslaughter scheduled to start Aug. 9, she is expected to plead self-defense, pointing to a history of domestic violence between the two.

Prosecutors want to offer a story from Whitney’s mother, Linda, that she saw her son “playfully” throw a pepper at Garcia in the summer of 2006, to which Garcia allegedly responded that she could kill him for that.

Meanwhile, defense attorney Michael W. McNelis said Friday he has dropped the notion of calling an expert witness to testify about battered woman syndrome, which means prosecutors are no longer seeking a pretrial psychiatric examination of Garci.

H. Michael’s Take:

This case points to the absurdity of just how far a prosecutor is willing to go to “taint” a jury in a weak domestic violence prosecution.

Under Colorado Domestic Violence law, the DA in a domestic violence case that has gone to trial, is permitted to use prior episodes of so called “domestic violence” to prove the case before the court. This is called Ruloe 404 (b) or similar transaction evidence.

The law reads as follows:

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

Juries, upon hearing about other episodes of so called conflict between the parties, use that information to bridge the gap in an otherwise weak domestic violence case .. that is unfair in my opinion…

In this case the attempt to use of other crimes evidence points to the absuridity of these rules.