Rule 404(b) In Colorado Domestic Cases: What Gets Into Evidence At Trial Part 1 (2026)

Rule 404(b) In Colorado Domestic Cases: What Gets Into Evidence at Trial Part 1 (2026)

By H. Michael Steinberg, A Colorado Criminal Defense Lawyer – Practicing Colorado Criminal Law in the courts of Colorado for over 40 years.

Introduction:

Having defended Colorado domestic violence (DV) cases for decades, I still feel the outrage of the courts allowing into evidence at trial 404 (b) – so-called prior acts, similar transactions, and other highly unfair and prejudicial evidence flies in the face of the very due process system that I have always held in such high esteem!.

Nothing in Colorado criminal practice betrays the presumption of innocence more openly, or more routinely, than the casual admission of “other acts” evidence under CRE 404(b) — a rule whose first sentence is a categorical prohibition and whose enforcement has become a bad joke.

Prosecutors know exactly what they are doing when they haul in a defendant’s prior acts…, thefts, sales, or sexual conduct: they are asking the jury to convict on character, and they dress that request up in the threadbare vocabulary of “motive,” “intent,” “plan,” or “absence of mistake”

Call it what it is — a prosecutorial shortcut around the burden of proof, blessed by judges who have forgotten that the rule is a prohibition, not an invitation — and understand that every time a Colorado courtroom lets 404(b) evidence through the door on a “non-propensity” incantation, the jury is being handed the verdict before deliberations begin.

Until our trial courts recover the nerve to enforce CRE 404(b) as written and our appellate courts stop grading admissibility on a curve, the rule will remain what it has quietly become: a state-sanctioned engine for convicting people on their past

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Mid-Trial Ambush

The DA wants the jury to hear about “the other time” and “the texts from last year” and “what happened with the ex.” This is a mid-trial ambush.

Colorado domestic violence cases are where 404(b) is both incredibly tempting and incredibly dangerous. It can turn into “he did it before, so he did it now,”  even if everyone pretends that’s not what’s happening.

What follows is a practical, Colorado-focused walkthrough of CRE 404(b) in DV cases as it looks going into 2026. Not academic. What tends to get in, what can sometimes be kept out, and the landmines that blow up otherwise decent motions.

Quick Refresher: CRE 404(b) Is Not “Bad Character” Evidence

Colorado Rule of Evidence 404(b) is the rule that says you cannot use other crimes, wrongs, or acts to prove a person’s character and show they acted in conformity with that character.

But it also lists the common legally allowable purposes. Things like motive, intent, plan, knowledge, identity, absence of mistake, and so on.

Colorado Rule of Evidence (CRE) 404(b) evidence may be admitted for specific, non-character purposes, including:

• Motive – showing why the defendant committed the act.
• Opportunity – demonstrating the ability to commit the act.
• Intent – proving the defendant’s state of mind.
• Preparation or Plan – showing a pattern or scheme.
• Knowledge – establishing awareness of facts or circumstances.
• Identity – linking the defendant to the crime.
• Absence of Mistake or Accident – rebutting claims that the act was unintentional
  The evidence must be logically relevant to a fact at issue other than character, and its probative value must not be substantially outweighed by the danger of unfair prejudice.

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The Colorado “Gatekeeping” Framework (The One Judges Actually Use)

Colorado has a pretty structured approach to 404(b). People still call it the Spoto analysis, and courts still basically use the same checklist.

The “checklist” in plain English:

1. The evidence has to be offered for a proper purpose (not “because he’s a bad guy”).
2. It has to be logically relevant to that purpose (a real chain of reasoning that doesn’t rely on propensity).
3. The relevance has to be independent of the inference that the person has a bad character (this is the part people hand-wave).
4. CRE 403 still applies: even if relevant, the court can exclude it if unfair prejudice substantially outweighs probative value.
5. A limiting instruction is used if requested, and often the court will do it anyway.

Domestic Violence Cases and “Relationship Evidence”

Colorado Domestic Violence cases are often about the relationship, not just the charged incident.

The charged conduct might be one shove, one slap, one broken phone, one threat, but the parties often have years of history, a hundred arguments, and ten thousand texts.

So prosecutors argue they have the right to inform the jury that the jury needs “the whole story;” they need to understand why the victim is acting “weird”; they need to understand coercive control; they need to understand perhaps why the alleged victim “recanted.”

My opinion is this is just a way to backdoor “propensity evidence.”

Evidence of a person’s previous behavior presented to show they most likely behaved in line with that character on a certain occasion is known as propensity evidence, often referred to as character evidence or prior bad deeds.

 Here are some examples of 404 b evidence:

• “Same transaction” evidence (what happened right before, during, or right after the charged incident, to make the story intelligible) is often not treated as 404(b) at all, because it’s not an “other act” in the sense the rule is worried about.
• Prior incidents in the relationship are usually 404(b) unless they are so intertwined with the charged incident that the jury literally can’t understand the charged event without them.
• General “pattern” arguments are where courts get strict, because “pattern” is just propensity wearing a fake mustache.

What Tends to Come Into Evidence At Trial (In Real Colorado Domestic Violence Practice)

Not every courtroom is the same, but recurring themes emerge. Here are the categories that most often get admitted, and why.

1) Prior threats against the same victim (especially close in time)

Threats are usually offered for motive, intent, or to show the defendant’s state of mind and to explain conduct.

Common examples:

• “I’ll kill you if you call the cops.”
• “If you leave, you’ll regret it.”
• “I’ll take the kids.”

In Colorado domestic violence cases, threats can be highly probative because they connect to why a victim didn’t call, why they minimized, why they complied. Judges often find that probative value significant, and the jury can understand the non-propensity purpose without too much mental gymnastics.

What helps the proponent of the evidence:

• Same victim.
• Similar circumstance (argument, separation, jealousy).
• Close in time.
• Specific threat language, not a vague “he’s scary.”

What helps the opponent of the evidence:

• Threat is remote.
• Threat is ambiguous.
• Threat is inflammatory compared to the charged conduct.
• Threat is being used to prove “he’s the kind of guy who would do this.”

2) Prior acts of intimidation or control tied to a specific DV issue at trial.

This is where you see evidence like:

• Taking the victim’s phone.
• Monitoring location, demanding passwords.
• Blocking exits, taking car keys.
• Telling the victim who they can talk to.
• “Financial control” evidence (sometimes).

Courts are more likely to admit this if the prosecution can tie it to an actual contested issue.

Examples:

• The defense theory is fabrication, and the victim is texting the next day affectionately, so the state offers prior intimidation to explain why she may act that way.
• The defense theory is accident or mutual combat, so the state offers a prior incident of controlling behavior to explain escalation dynamics and intent.

This is also where “blind” expert testimony is often used to show so-called DV dynamics such as the cycle of violence.

3) Prior assaults against the same victim that are highly similar and not too remote

This is the classic. “Last year he choked her.” Now he’s charged with assault or harassment. The state says: intent, absence of mistake, motive, common plan, relationship context.

Colorado courts almost always admit this kind of evidence.

So what persuades the judge to admit the evidence?

• The charged incident is based upon ambiguous facts (self-defense claim, accident claim, “I was just restraining her”).
• The similarity is strong (same method, same location, same words).
• The case involves a pattern that explains victim behavior that otherwise looks “unreasonable.”
• The state is willing to limit the detail as regards what is admitted  (more on that in a second).

4) The “why didn’t she leave / why did she recant her statement” evidence.

Courts often permit some prior-act evidence to rebut an implied claim of fabrication and explain an alleged victim’s behavior.

If this is allowed, the Colorado criminal defense lawyer should push hard for:

•  A very tight time window.
• Also tight limits on the number of prior incidents.
• Sanitizing language (no “he beat me almost every day” unless it’s properly admissible).
• Requiring the state to pick a purpose under the law to admit the evidence and then hold to only that purpose for allowing the evidence in.

What Evidence Can Be Stopped (Or at Least Narrowed) By The Defense

Some evidence sought to be introduced by the state is vulnerable to being stopped by the defense under another rule – CRE 403 under what is known as the “independent relevance” requirement.

Examples of evidence to be excluded under CRE 403 include:

1) Prior acts against other partners (the ex-girlfriend issue)

The state often seek to offer evidence such as: “He did the same thing to his ex.”Sometimes it comes in, but it is much more contested, and for good reason. If a jury hears “multiple women have accused him,” the case is basically over.

If the state tries to offer this kind of evidence to prove the element of identity (unique modus operandi) or a specific plan, there must be an extraordinarily strong similarity and a real disputed issue. In most domestic violence cases, identity is not disputed. It’s not a whodunit. It’s “what happened between these two people.” So identity-based 404(b) is usually a “stretch.”

If this evidence is admitted it us often under one of these theories:

• Extremely distinctive conduct and a real identity dispute (rare in DV cases).
• Impeachment of the defendant IF the defendant mistakenly opens the door And example of this is to rebut a specific claim such as “I would never do that” (watch the door opening)

Where it is excluded or tightly restricted:

• It’s just “he’s violent in relationships.”
• The trial is derailed into a “mini trial” about the ex.
• The evidence is too remote in time, too different in nature, or too inflammatory.

2) A long timeline of “relationship history” with no clear purpose.

“Over the last five years, they fought a lot” is not 404(b) purpose evidence. It’s a mood.

Judges sometimes allow some relationship background evidence. But when it becomes an unstructured “fact dump” of prior fights, insults, breakups, reconciliations, and “one time he punched a wall,” you are deep in 403 territory.

If the proffered evidence is of this nature, the defense position should force the state to identify:

• Which specific incident is being used?
• What is the specific purpose of the evidence?
• What specific inference is intended to be drawn from the evidence?
• Who is the witness and what foundations of evidence must be laid for the admission of the evidence?
• What the limiting instruction to the jury will say.

3) Prior acts that are more severe than the criminal charged act in the present case.

This is a major issue.. For example, the case is charged with harassment by repeated texts, or a low-level assault with no injury. And the prior act offered into evidence is second-degree assault: strangulation with firearm threats.

Even if “relevant,” the prejudice under these facts is massive. Judges often exclude it or heavily sanitize it. But if the judge lets this kind of evidence in, even strong limiting instructions to the jury will not undo the harm to the defense.

This is also where the defense should as: can the state get what it needs with less prejudicial evidence? If yes, 403 cuts.

4) Prior acts that are remote in time with no bridging logic.

Remoteness alone is not an automatic bar, but it matters. A 10-year-old incident, even with the same victim, looks like character evidence unless there’s a reason it still speaks to the issue now.

If the relationship has continued uninterrupted and the conduct is part of ongoing dynamics, courts may find it still relevant. If there’s a long gap, different circumstances, changed relationship status, or no contact, the probative value drops fast.

The “How” Matters: Details, Scope, and Mini Trials

A lot of 404(b) rulings are not “admitted vs excluded.” They’re “admitted …..but.” This is where you win or lose the fairness of the trial.

This is a kind of damage control:

• Only one incident instead of five.
• Only the fact of a prior threat, not the entire argument leading up to it.
• No photos, no medical records, no body-worn video unless absolutely necessary.
• No mention of arrest, charges, conviction, or “the court gave him a protection order” unless independently admissible.
• The witness can say “he grabbed my neck” but not “he strangled me and I thought I would die” depending on the purpose and 403 balancing.

Because the jurors don’t just hear “prior act.” They hear the story of the prior act.

Defense lawyers, upon the threat of this evidence, should be thinking in terms of the following questions:

• What is the minimum version of the evidence that serves the legitimate purpose?
• Can it be proven without turning the admission of the evidence into a mini trial?
• Can it be stipulated to in a sanitized form?
• Can the court limit the number of witnesses on the prior act?

Judges who are skeptical of 404(b) often become less skeptical when the proponent agrees to narrow and sanitize. Judges who are friendly to 404(b) sometimes still narrow it because they do not want a mistrial.

Practical Checklists

If The Party Is Offering The 404(b) Evidence (Proponent’s Checklist)

• Identify the exact act, date range, and witness.
• Identify the precise permitted purpose (not just a label).
• Explain the inference without using “he’s violent.”
• Anticipate 403 and propose narrowing measures.
• Ask for a limiting instruction and propose the language.

If The Party Is Opposing The 404(b) Evidence (Opponent’s Checklist)

• Force the issue: what exactly is contested at trial? 
• Force the inference chain on the record.
• Argue 403 with specifics: number of incidents, time, mini-trial risk, inflammatory nature.
• Offer alternatives (stipulation, sanitized facts, limited scope).
• Request a limiting instruction if it comes in, and ask that it be given contemporaneously, not just in the final packet.

The Limiting Instruction To The Jury Matters

Everyone says jurors do not follow limiting instructions. Sometimes that’s true. Sometimes it’s just something lawyers say when they are losing.

In Colorado practice, though, a good limiting instruction helps preserve the record and sometimes genuinely shapes how the evidence is presented. It also gives the judge a way to admit a narrowed version while signaling caution.

If the evidence is admitted, the lawyer should advocate for more than the basic limiting instruction becomes a generic “you may consider this for intent.” The position should be to tie the instruction to the specific purpose that was actually litigated.

If the state starts using the evidence to show propensity in closing, the defense should and will object and then ask for a curative instruction.

The 2026 Reality: Judges Are More Aware of Coercive Control in Colorado Domestic Violence Cases

This is the trend line in DV litigation generally. Courts are increasingly comfortable with the idea that DV is not only about isolated incidents. It can be about ongoing coercion, threats, intimidation, and a pattern of control.

That awareness can expand what judges view as “probative” in a DV cases.

But it also increases the need for discipline. Because “coercive control” can become a justification for admitting everything, which is not the law and not fair.

Going into 2026, the practical truth is:

• Relationship evidence is not automatically in. But it is easier to sell than in many other case types.
• Prior acts against the same victim are the most likely to be admitted, especially if the defense makes victim behavior a key issue.
• Prior acts against other partners are still uphill and often narrowed, unless there is a truly specific, non-propensity purpose.
• The best 404(b) litigation is about scope and detail, not just “in or out.”

Summary and Conclusion

If you’re trying to predict what “gets in” under CRE 404(b) in Colorado DV cases as we head into 2026, start here:

• Same victim, similar prior threats or intimidation, close in time. Often in.
• Same victim, prior assaults. Sometimes in, but watch 403 and how severe it is compared to the charged conduct.
• Ex-partner incidents. Possible, but more skepticism, more 403 risk, more mini trial concerns.
• Broad relationship history with no crisp purpose. Vulnerable. Often narrowed or excluded if properly fought.
• The fight is usually won by tightening or exposing the purpose and by controlling the story length and detail.

It is not always pretty. 404(b) hearings in domestic violence cases rarely are. But if the defense lawyer forces precision on 403 facts, the ruling is usually better.

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FAQs (Frequently Asked Questions)

What is Colorado Rule of Evidence 404(b) and how does it apply in domestic violence cases?

CRE 404(b) generally prohibits using other crimes, wrongs, or acts to prove a person’s character and show they acted in conformity with that character. However, it allows evidence for specific purposes such as motive, intent, plan, knowledge, identity, or absence of mistake. In domestic violence (DV) cases, prosecutors often use 404(b) to show intent or absence of mistake, motive like control or jealousy, common plan or scheme, context of the relationship, or to explain victim behavior such as delayed reporting or recantation.

Why is CRE 404(b) particularly challenging in Colorado domestic violence cases?

In DV cases, 404(b) evidence can easily be misused to imply “he did it before, so he did it now,” which courts try to avoid. The challenge lies in balancing the need to provide context about the relationship or victim behavior without allowing unfair prejudice or propensity reasoning. Judges require precise articulation of the purpose and logical relevance of such evidence beyond just labeling it as intent or motive.

What framework do Colorado courts use to evaluate 404(b) evidence in domestic violence trials?

Colorado courts follow a structured approach (historically known as the Spoto analysis), requiring that: (1) the evidence is offered for a proper purpose (not character), (2) it is logically relevant to that purpose without relying on propensity inference, (3) its relevance is independent of showing bad character, (4) CRE 403’s balancing test excludes evidence if unfair prejudice substantially outweighs probative value, and (5) limiting instructions are given if requested. Courts focus heavily on whether proponents specify what intent or purpose is being shown precisely.

How do courts distinguish between intrinsic ‘relationship evidence’ and extrinsic 404(b) evidence in DV cases?

Intrinsic ‘relationship evidence’ includes events immediately before, during, or after the charged incident that make the story intelligible and often aren’t treated as 404(b). Prior incidents in the relationship are usually considered extrinsic 404(b) unless they’re so intertwined with the charged event that understanding one requires understanding the other. Courts are strict about ‘pattern’ arguments since they often mask impermissible propensity reasoning. Correct categorization affects admissibility analysis.

What types of prior acts tend to be admitted under CRE 404(b) in Colorado domestic violence prosecutions?

Commonly admitted prior acts include prior threats against the same victim, especially when close in time and circumstances are similar. These threats may be admitted to show motive (like control or jealousy), intent (to harm), or explain victim behavior such as why they minimized abuse or delayed reporting. Specific threat language and temporal proximity strengthen probative value while minimizing unfair prejudice concerns.

Why is explaining victim behavior important in admitting 404(b) evidence in DV cases?

Victim behavior such as delayed reporting, recantation, minimizing abuse, staying with the abuser, or maintaining contact can confuse juries unfamiliar with coercive control dynamics. Courts allow certain 404(b) evidence to provide context for these behaviors so juries better understand why victims act seemingly inconsistently. This helps prevent unfair assumptions about credibility but requires careful limits to avoid propensity reasoning.

Judges must ensure such evidence is used solely to explain victim conduct, not to prove the defendant’s character or suggest guilt by prior bad acts. Limiting instructions and relevance balancing are essential safeguards during trial.

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Colorado Criminal Law –Rule 404(b) In Colorado Domestic Cases: What Gets Into Evidence At Trial Part 1 (2026)

The reader is alerted that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article above was accurate when it was drafted, but it cannot account for changes that occurred after it was uploaded.

ABOUT THE AUTHOR: H. Michael Steinberg – Email the Author at: hmsteinberg@hotmail.com

A Denver, Colorado 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 – please call 720-220-2277.

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You should be careful to make a responsible choice when selecting a Colorado criminal defense lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the time to continually update himself in nearly every area of criminal law, including Colorado criminal law, procedure, and trial and courtroom practice.

H. Michael works hard to deliver the best possible results for his clients, both in and out of the courtroom. He has written extensively on Colorado criminal law and continues to do so, and he hopes this article helps you in some small way.