Rule 404(b) In Colorado Domestic Cases: What Gets Into Evidence At Trial Part 2 (2026)

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

Introduction:

This is the second of two articles on this subject, and I have written about this area before

. This second of two articles goes into the nuts and bolts of keeping the state of Colorado from introducing similar/bad acts into evidence at trial.

Few evidentiary questions shape a Colorado domestic violence trial as decisively as what the jury is allowed to hear about the defendant’s past.

A single prior argument, a years-old shove, a text message from a previous relationship — under the wrong ruling, any of these can transform a narrow, one-incident case into a sweeping referendum on the defendant’s character.

Under the right ruling, they stay out entirely.

Colorado Rule of Evidence 404(b) governs that gatekeeping function and flatly prohibits the prosecution from offering evidence of “other crimes, wrongs, or acts” to prove that a defendant has a bad character and likely acted in conformity with it on the date charged.

At the same time, the rule permits that evidence when offered for a non-propensity purpose—motive, intent, identity, common plan, absence of mistake, and the like.

Rule 404 b and Colorado Domestic Violence Cases

Domestic violence prosecutions sit at the sharpest edge of that tension. The General Assembly has expressly recognized in C.R.S. § 18-6-801.5 that abuse is often cyclical, patterned, and escalating, and it has authorized courts — after an offer of proof — to admit other acts of domestic violence between the defendant and the named victim, or between the defendant and other partners.

What follows are the first two sections of the law: C.R.S. § 18-6-801.5:

(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.

Colorado appellate courts then layer on the familiar four-part Spoto analysis: the evidence must relate to a material fact, be logically relevant, be relevant independent of any bad-character inference, and survive Rule 403 balancing against unfair prejudice.

The result is a framework that is neither a blanket ban nor an open door. Whether the jury hears about a prior choking incident, a threatening voicemail to an ex, or a police call from three years earlier turns on how carefully the prosecution frames its purpose — and how effectively the defense pushes back at the offer-of-proof hearing, on the Spoto factors, and on the limiting instructions that follow.

This article walks through how CRE 404(b) operates in Colorado domestic violence cases: the statutory hook in § 18-6-801.5, the four-part Spoto test , the preponderance-of-the-evidence threshold, the required jury instructions, and the categories of prior conduct Colorado appellate courts have allowed in—and kept out—at trial.

1. The Threshold Question: Is The Evidence Intrinsic or Extrinsic?

In Rojas v. People, 2022 CO 8 (Feb. 22, 2022), the Colorado Supreme Court clarified this complex area by starting the analysis of allowing or disallowing prior similar acts by the defendant into evidence using the following binary analysis are the acts intrinsic or extrinsic?

Intrinsic evidence — acts that directly prove the charged offense or occur contemporaneously with and facilitate it — is analyzed only under CRE 401–403. No 404(b)/Spoto analysis, no notice, no limiting instruction required.
Extrinsic evidence — anything that implicates character rather than just filling in the story of the charged crime — must run the full CRE 404(b)/t.Spoto gauntlet.

2. The General Rule: Colorado Rule of Evidence 404(b) and the Spoto Test

Once evidence is found to be “extrinsic,” People v. Spoto, 795 P.2d 1314, 1318–19 (Colo. 1990), supplies the four-part gateway test:

The evidence relates to a material fact (not propensity).
It is logically relevant to that fact.
Relevance is independent of the inference “defendant has a bad character and acted in conformity with it.”
Probative value is not substantially outweighed by unfair prejudice, confusion, or misleading the jury (CRE 403).

Permissible non-propensity purposes under 404(b) itself are: motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.

3. The Domestic Violence – Specific Statute: C.R.S. § 18-6-801.5

This is where Colorado law departs from a “routine” 404(b) analysis. The statute applies to domestic violence cases whenever the defendant and the alleged victim “have engaged in an intimate relationship,” and the law explicitly tilts the scale toward admission of similar acts evidence.

A bullet-point analysis of the C.R.S. § 18-6-801.5

Legislative finding: domestic violence “is frequently cyclical in nature, involves patterns of abuse, and can consist of harm with escalating levels of seriousness” — used by courts to justify admitting a pattern, not just a single prior incident.
Scope: covers other acts of domestic violence between the defendant and the named victim, and between the defendant and other persons — broader than ordinary 404(b) practice, which usually confines “other acts” to the same victim or a tightly analogous scheme.
Offer of proof requirement: the proponent (almost always the prosecution) must advise the trial court by offer of proof and specify which purpose it’s offered for — common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or another stated purpose.
Balancing: the court still must find the probative value of the evidence isn’t substantially outweighed by unfair prejudice, confusion, or misleading the jury — same CRE 403 language as Spoto prong four, so Spoto and § 18-6-801.5 largely run together procedurally even though the statute is the more permissive vehicle for admitting the evidence..
Limiting instruction — twice: the court must instruct the jury on the limited purpose (a) at the moment the evidence is admitted, and (b) again in the final charge. Missing either instruction is a preservable, and often winning, appellate issue if the defense objects and requests it.

4. Prior Abuse May Be Used To Rehabilitate a Recanting Witness

People v. Jones, 2025 COA 43 (Colo. App. May 1, 2025), a 2025 case of first impression whose holding is worth analyzing: when the defense attacks a witness’s credibility, evidence of the defendant’s prior abuse of that witness may come in under CRE 404(b) not to prove the charged conduct, but to explain the witness’s reluctance to testify or a changed/recanted account.

The purpose of the evidence in this context is viewed as distinct, non-propensity purpose (credibility rehabilitation), not motive/plan/identity, and it specifically matters in DV cases because recantation is endemic — victims routinely soften or reverse prior statements by the time of trial, and prosecutors had lacked a clean doctrinal hook to explain why without appearing to also smuggle in propensity evidence.

5. How 404 b Hearings Actually Play Out – Procedurally

The second part of the statute C.R.S. § 18-6-801.5 reads as follows:

(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.

Here’s How It Works

Pretrial motion — The prosecution files notice/offer of proof under § 18-6-801.5, identifying the specific prior act(s) and the stated non-propensity purpose(s).
Hearing — The Court applies Spoto’s four prongs (folding the statute’s own balancing language into prong four), often at a pretrial evidentiary hearing rather than resolving it on the papers, especially where the “other persons” prong of the statute is invoked (that’s the furthest from ordinary 404(b) practice and draws the most scrutiny).
Intrinsic/extrinsic gatekeeping first —If the evidence is genuinely part of the charged transaction (e.g., a single continuous assault), argue Rojas intrinsic/CRE 401-403 only, sidestepping notice and limiting-instruction requirements entirely; if it’s a separate, earlier incident, it’s extrinsic and needs the full track.
Limiting instructions on the record twice —The defense should affirmatively request both instructions under § 18-6-801.5(5); silence risks waiver on appeal.
Preserve the 403 objection separately from the 404(b)/relevance objection — appellate review treats them as distinct, and a bare “relevance” objection at trial won’t preserve an unfair-prejudice argument.

Colorado Criminal Law – Rule 404(b) In Colorado Domestic Cases: What Gets Into Evidence At Trial Part 2 (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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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.