The Colorado Supreme Court on Feb. 22 abolished the res gestae doctrine, “a troublesome relic from Colorado’s common law of evidence,” as Justice William Hood described it in his majority opinion in Rojas v. People.
The common-law doctrine, whose name means “things done” in Latin, allows for the admission of evidence that is incidental to the charged offense but closely connected and helps explain or provide context for the events in question. But the doctrine is “often used as a shortcut for admitting character evidence about criminal defendants,” Hood wrote.
“It is time for us to bury res gestae,” the opinion states. “This court’s adoption of the Colorado Rules of Evidence more than four decades ago should have rendered the res gestae doctrine obsolete.”
Judging Character
The evidence at the heart of the res gestae controversy in Rojas was a food assistance application from August 2013. Brooke Rojas was charged with theft of food stamps she allegedly obtained by deception between February and July of that year. Rojas received the food stamps after filing an application in January 2013. She never received benefits based on her August application. At trial, Rojas argued she misunderstood the application forms and didn’t knowingly deceive the government. In other words, she lacked the culpable mental state required to be convicted of the crime.
Although Rojas’ August application fell outside the timeframe of her alleged crimes, the trial court admitted it as res gestae because it provided circumstantial evidence of Rojas’ mental state. The prosecution said the August application showed it was likely Rojas knowingly deceived the state on her January application because she misstated her income on both forms.
Rojas objected to the admission of the August application, arguing it was irrelevant, unfairly prejudicial and impermissible under Colorado Rule of Evidence 404, which governs the admissibility of character evidence. She asked for a limiting instruction for the jury, but none was given. The prosecution discussed the August application in opening and closing arguments as evidence of Rojas’ intent and questioned her about it during her testimony. Rojas was convicted of two counts of theft.
At oral arguments before the Supreme Court in September, Rachel Mercer of the state public defender’s office, who represented Rojas, argued Colorado should abolish res gestae “because it violates the fundamental principle that a defendant is only supposed to be tried for the charged offense and not for any other alleged misconduct.”
Instead, Mercer argued, courts should apply Colorado Rule of Evidence 404(b) to determine whether evidence of other crimes, wrongs or acts is admissible. Rule 404(b) says that evidence of “other acts” is not admissible to prove character and propensity to commit the charged crime. But the evidence may be allowed to prove motive, opportunity, intent or other factors. The rule comes with certain protections, such as requiring prosecutors to provide pre-trial written notice to the defendant that they plan to introduce evidence of other acts.
The majority sided with Rojas, finding that “res gestae is so ill-defined, such uncharged misconduct evidence too often dodges the rules and slips into cases without the requisite scrutiny.” By “allowing the vagueness of res gestae to persist” alongside the “more analytically demanding rules of relevancy” under the Colorado Rules of Evidence, the majority said, “we have created a breeding ground for confusion, inconsistency, and unfairness.”
The high court abolished the doctrine in criminal cases and reversed Rojas’ convictions, remanding for a new trial. In a footnote, the majority pointed out that the issue of whether res gestae should survive in civil suits, “where it crops up far less frequently,” was not before the court and it declined to weigh in on that question.
No Magic Wand
However, the majority acknowledged that abolishing res gestae “offers no magic wand” and there will still be ambiguity when drawing the line between the charged crime and “other acts.”
The high court clarified how to decide when Rule 404(b) applies. Trial courts must first determine whether evidence is intrinsic or extrinsic to the charged offense. Intrinsic acts are those that directly prove the charged offense or that occurred contemporaneously with and aided the commission of the charged offense, the majority said. Rule 404(b) doesn’t apply to evidence of intrinsic acts and must be evaluated under different rules of evidence, according to the majority.
The court clarified that extrinsic evidence that suggests bad character is only admissible as allowed by Rule 404(b) and after analysis under the 1990 People v. Spoto decision, which provided a framework for determining relevancy of character evidence with regard to Colorado’s rules of evidence.
Not all the justices agreed that res gestae should be tossed out. In a concurrence joined by Justice Maria Berkenkotter, Chief Justice Brian Boatright agreed with the majority that the trial court improperly admitted Rojas’ August benefits application. “But I disagree with the majority’s conclusion that jettisoning the doctrine will solve any problems — it won’t,” Boatright wrote. No matter whether the doctrine is called res gestae, intrinsic evidence or other-acts evidence under CRE 404(b), the chief justice wrote, courts must still determine when an act constitutes an “other act.”
“Because that question will always exist, I fear that the majority’s decision is only going to cause a needless explosion of CRE 404(b) hearings, furthering the burden on Colorado’s overworked trial courts,” the concurrence states. Boatright predicted that following the shift away from res gestae, attorneys will argue mid-trial that “evidence of every granular detail” depicts an “other act” subject to scrutiny under Rule 404(b).
Moreover, res gestae has been a part of Colorado law for more than a century, Boatright added, and discarding the doctrine violates the principle that courts must adhere to precedent.
During oral arguments in Rojas, Hood asked Assistant Attorney General Kevin McReynolds what the downsides of abandoning res gestae would be. “Give me the parade of horribles,” Hood said. “If we abolish the res gestae doctrine and say the rules of evidence govern, tell me what the world looks like and how dogs are going to be sleeping with cats and it’s going to be awful.”
“You’re just trading problems. You’re not getting anything better while making bigger burdens on trial courts and litigants,” McReynolds responded.
“I don’t think that this rule is so crazy that it should be abolished, especially given its national acceptance,” McReynolds added.