Preparing for Trial – CDAC Member Portal

Charging

Offices differ in their approaches to charging, but regardless of policies, perspective, or local politics, all prosecutors must ensure:

- - There is probable cause to support each charge;
  - Each charge is or will be, with sufficient preparation, provable beyond a reasonable doubt;
  - Each charge and the charges when taken together appropriately frame the case for the jury without overreaching; and
  - The charges are charged correctly.

DV most often occurs behind closed doors when no one other than the victim and the abuser is present to witness the abuse. The absence of visible or significant injuries in misdemeanor DV cases further increases the difficulty of proving DV cases at trial. This is why it is especially important that you carefully consider what you charge and reevaluate your charges before trial, especially in light of new information you may become aware of after charges are filed. If you cannot prove certain charges after carefully considering all the evidence, you are ethically obligated to dismiss those charges.

In Colorado, peace officers charge misdemeanor charges. This does not, however, excuse you from evaluating the propriety of those charges. You must carefully review each charge to make sure it meets the four requirements above, and you must exercise your best judgment in light of your life experience, training as a lawyer, and experience in trial in whether you can prove the charges at trial. Sometimes it helps to consult colleagues about your charges, but remember that at trial it will be your responsibility to persuade a jury.

Preparing for trial doesn’t just include checking the existing charges for propriety, it also means deciding your theory of the case and which charges best fit that theory. In the modern trial environment, context essential to understanding what happened may not be admissible if it isn’t charged. For example, say a defendant pushes a victim around the house repeatedly over the course of several hours. For the first 5 pushes, the victim doesn’t respond in kind. But when the defendant pushes her a 6th time, the victim pushes back. In response, the defendant punches her in the face and throws her around the apartment. The officer charges one count of Assault in the Third Degree. The problem with that as the sole charge here is that some judges might exclude all of the defendant’s prior pushing if it wasn’t charged or litigated under 404(b). And at trial, most jurors would expect the prosecutor to tell them about any prior bad acts related to the offense if any prior bad acts had actually occurred. When the jury is not presented with these prior bad acts, the truth is distorted, and the jury may be deceived into believing the victim pushed the defendant for no reason and the defendant was merely defending himself.

One simple way to avoid this problem is to charge for all the misconduct that fits your theory of the case and which you believe you can prove beyond a reasonable doubt, especially misconduct that explains victim behavior. In this case, the prosecutor should consider charging the defendant with harassment for pushing the victim five times prior to her pushing the defendant back. These added counts will put the defendant’s assault in the proper context, prevent distortions of the truth, and disprove any claim by the defendant that his assault was somehow self-defense. Instead of the jury blaming the victim, the jury will appropriately blame the defendant. For a comprehensive review of the law on admitting prior bad act evidence, please see the Trial Evidence Manual.

Charging Child Abuse in DV Cases

Almost 1 in 10 children in the United States witnesses one family member assault another family member, and more than 25 percent had been exposed to family violence during their life (Finkelhor et al., 2009). Witnessing domestic violence can be incredibly damaging for children and result in any number of long-term consequences. According to the United States Department of Justice, Office of Justice Programs, youth exposed to family violence experience a number of negative outcomes as a result:

Psychological health outcomes
These include problems associated with depression, anxiety, post-traumatic stress disorder, isolation, shame, fear, guilt, and low self-esteem (Bourassa, 2007; Finkelhor et al., 2009; Johnson et al., 2002; Moylan et al., 2010; Kilpatrick et al., 2003).

Physical health outcomes
Children exposed to violence are at risk for physical injury and are also more likely than others to have poor overall health, have illnesses requiring medical attention, attempt suicide, or be involved in self-injury (Duke et al., 2010; Finkelhor et al., 2009; Flaherty et al., 2009). There is evidence that exposure to child abuse and neglect has profound effects on brain development and cognition (Child Welfare Information Gateway, 2009).

Academic difficulties and failure
Exposure to violence increases the risk that children will drop out of school or do more poorly in school (Herrenkohl et al., 2008; Holt et al., 2007).

Behavioral problems
Behavioral outcomes may include substance abuse or dependence, teen pregnancy, aggression, conduct disorder, delinquency, and violence, including dating violence and intimate partner violence (Bourassa, 2007; Duke et al., 2010; Ehrensaft et al., 2003; Finkelhor et al., 2009; Herrenkohl et al., 2008; Johnson et al., 2002; Kilpatrick et al., 2003; McCabe et al., 2005; Moylan et al., 2010; Nofzinger & Kurtz, 2005).

Delinquency and offending
High rates of victimization are seen in juvenile justice samples. Seventy percent of youth in residential placement had some type of past traumatic experience, with 30 percent having experienced frequent and/or injurious physical and/or sexual abuse (Sedlak & McPherson, 2010). Some types of victimizations are more strongly associated with violent offending than others (Nofzinger & Kurtz, 2005). Sexual victimization is not predictive of violent offending, whereas victims of child physical abuse are approximately 1.7 times more likely than others to be involved in perpetrating violent offenses. Being the victim of a physical assault increases the likelihood of violent juvenile offending by 3.3 times (Nofzinger & Kurtz, 2005).

Poly-victimization
A number of studies have found that exposure to multiple kinds of violence predicts negative outcomes beyond the effects of any specific type of exposure. The range of outcomes includes psychological distress, adjustment in adult relationships, college adjustment, school grades, physical health, teen pregnancy, delinquency, bullying, self-directed violence, physical fighting, teen dating violence perpetration, and adult intimate partner violence victimization and perpetration (Duke et al., 2010; Richmond et al., 2009; Elliott et al., 2009; Holt et al., 2007; Flaherty et al., 2009; Sternberg et al., 2006; Finkelhor et al., 2007a; Turner et al., 2010; Anda et al., 2001; Whitfield et al., 2003; Spriggs et al., 2009).

“Children Exposed to Violence,” Office of Justice Programs, available at: https://www.ojp.gov/program/programs/cev.

As a result, if a child was exposed to domestic violence and the police officers have not yet charged child abuse, consider charging it. In Colorado, child abuse does not require proof of physical injury. Rather, a person commits child abuse if “[S]uch person causes an injury to a child’s life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health . . . .” § 18-6-401 (emphasis added). It is not difficult to find local county child-welfare specialists and DV experts who can testify about how damaging it is for a youth to witness domestic violence.

A misdemeanor act of child abuse can be charged as class 5 felony if the defendant had a prior conviction for child abuse and:

(II) The defendant participated in a continued pattern of cruel punishment or unreasonable isolation or confinement of the child; or

(III) The defendant made repeated threats of harm or death to the child or to a significant person in the child’s life, which threats were made in the presence of the child.

§ 18-6-401(7)(III); § 18-6-401(7)(IV).

If you find a prior child abuse conviction in the defendant’s criminal history in the context of a DV incident, you should consult a felony DA in your office about whether you can or should up-charge. If you don’t see a prior child abuse conviction, if you think the defendant will likely continue to commit acts of domestic violence in the household, your case may be the time to consider adding child abuse charges.

Before you charge misdemeanor child abuse, however, consider whether charging child abuse might require or permit the testimony of a child against a parent, and whether the additional charge is worth making or allowing a child to testify against their parent. Even if you don’t call the child, if you charge child abuse, the defense attorney may call the child anyway. Then the child, prepared by defense counsel, may minimize or lie to protect their family member. Even they don’t, the child is put into the impossible position of testifying for or against one of their parents. There are many circumstances where it is not difficult to imagine the damage to the child or to the child’s family may not be worth the benefit to the case. When in doubt, consult a supervisor or a more experienced colleague.

Meeting with the Victim and Key Witnesses

Ideally, you will have met your victim long before the case sets for trial. You should also meet with key witnesses to build rapport, clarify key facts, ask questions that should have been asked but weren’t, gather background information on power and control, and assess the witness’s credibility and ability to observe the events they claim to have witnessed. A witness may claim to have witnessed the defendant punch the victim, but the witness or the investigating officer may have failed to ask follow-up questions to better understand how the witness knows it was a punch. It would not be the first time a witness says “hit” and an officer wrote “punch.” If you ask this follow-up question in a pre-trial meeting, you can learn more details that ensure your charges are provable and you aren’t caught off-guard at trial.

Filing Motions

Abide by all deadlines set by the court. If possible, file motions early, especially “dispositive” motions that may change the course of plea negotiations or the disposition of the entire case depending on how the judge rules. Possible motions include:

1. 1. Notice of Intent to Admit 404(b) and 16-10-301 Evidence
  2. Motion to Admit Evidence
  3. Motion for Forfeiture by Wrongdoing
  4. Motion for Discretionary Disclosure of Defense Expert Information
  5. Motion for Disclosure of Nature of Defense and Defense Witnesses
  6. Motion to Amend Complaint
  7. Proposed Jury Instructions
  8. Pre-trial Brief on [a relevant topic the judge might struggle with, such as 16-10-201]

In a DV case, you may need to respond to defense motions, including:

1. 1. Motion to Exclude Prosecutor’s Expert Witness
  2. Motion for Shreck Hearing
  3. Motion to Suppress Evidence
  4. Motion in Limine to Exclude Evidence

Motions to Admit “Other Acts” Evidence: 404(b) and 18-6-801.5

For a comprehensive overview of the law on admitting other-acts evidence, see the Trial Evidence Manual.

A defendant’s prior bad acts can reveal a defendant’s intent and motive, demonstrate coercion and control, explain counter-intuitive victim behavior, and rebut disingenuous claims of self-defense, whether the defendant pleads self-defense or the jury raises the issue on its own during deliberations. Admitting prior bad acts provides the jury with sufficient context to ensure the jury isn’t misled or deceived by the omission of certain knowledge. When the jury is permitted to see a pattern of behavior showing power and control, the jury can fully understand the situation and see the defendant’s intentions for what they truly are.

Common prior acts include:

1. 1. Prior assaults on the victim
  2. Attempts to coerce or control the victim
  3. Prior similar assaults on other victims

You can find prior act evidence in a variety of places, but most commonly in:

1. 1. Relationship history interview with victim
  2. Police reports documenting prior police callouts to the home
  3. Police reports about the crime itself
  4. Prior restraining orders and associated hearings
  5. Prior relationships
  6. Outcry witnesses

The key to any 404(b) motion is to identify the relevance of admitting the prior bad act independent of the “bad character” inference. This must be clear in your motion. See, e.g., People v. Cross, 531 P.3d 444 (Colo. App. 2023) (admitting prior act evidence under 404(b)).

Don’t be surprised if judges are skeptical of your arguments about admitting 404(b) evidence, especially in DV cases. Judges often think the prosecutor’s motion for 404(b) is really just a motion to admit bad character evidence. Judges know prior act evidence can be influential to juries, for good or ill, and they don’t want a defendant’s trial to be hopelessly skewed against them.

Refusals to admit proper 404(b) evidence, however, are so frequent that the legislature has “put its thumb on the scale” in favor of the proper admission of prior similar acts evidence in DV cases. Section 18-6-801.5 states:

(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.

Be sure to include this in your motions to admit other-act evidence, especially when judges are new and may not know the legislature has taken time to specially recognize the importance of this evidence. But don’t be surprised if the judge doesn’t find the language persuasive in your case.

Discovery

Discovery in a DV case is largely the same as any other case. In DV cases, however, you are more likely to use a generalized expert to explain counter-intuitive victim behaviors. The use of such an expert requires special adherence to the rules on expert discovery.

Resources

Websites

“Children Exposed to Violence,” Office of Justice Programs

CDAC Resources
Trial Evidence Manual

Recorded Trainings

Child Protection Services: DV Practice Guide

Prosecutor’s Guide to Utilizing Trauma Experts in Sexual Assault and Domestic Violence Cases

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