If you are charged with a crime of domestic violence, and have previous been convicted or even accused of domestic violence, those prior allegations can be brought into court against you in your new case. Prosecutors will seek to introduce those acts pursuant to C.R.E. 404(b) and C.R.S. 18-6-801.5.

The prosecution has the burden of demonstrating that the alleged acts are in fact admissible, and their admissibility must be determined by the court prior to a trial. In seeking to introduce evidence of prior domestic violence incidents, the prosecution must articulate a precise evidentiary hypothesis by which a material fact can be permissibly inferred from the prior act, since propensity evidence is not allowed.

Propensity evidence is not allowed because any probative value it may have is always outweighed by its prejudicial effect. Colorado law declares that domestic violence is cyclical in nature and involves patterns of abuse, and because of that, has declared that evidence of similar transactions can be helpful and is even necessary in some situations in prosecuting crimes of domestic violence.

Significantly, this law does not say such evidence is helpful in “all situations”, and therefore must not contemplate blanket admissibility of prior domestic violence charges despite any similarity they may bear on a new domestic violence offense. Depending upon the facts and circumstances of your case and prior conviction and/or allegation, this prior act may not be admissible against you at a trial.

Even if you are not contemplating a trial in your case, having any prior convictions can have a significant impact on the outcome of your case. A case in which a first time offender may get probation could result in a jail sentence for an individual with one or more priors.

While a domestic violence lawyer should be retained to defend you in any domestic violence case, this is particularly important in cases involving priors.