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Admitting Prior Act Evidence in Civil Litigation
While prior act evidence is generally not admissible in Colorado and Denver courts, Colorado Rule of Evidence (“C.R.E.”) 404(b) provides an exception to that rule. In particular, under C.R.E. 404(b) evidence of other crimes, wrongs, or acts is admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident .“ Only where the prior act evidence is being offered to show that a person is generally of a certain type of character and must have acted in conformance with that character on a particular occasion is the evidence inadmissible. Id.
While prior act evidence is most frequently admitted in criminal cases, C.R.E. 404(b) applies in civil cases as well. See Coll. v. Scanlan, 695 P.2d 314 (Colo. App. 1985). More specifically, in order for prior act evidence to be admissible under C.R.E. 404(b) the offered evidence must satisfy a four-part analysis:
- Whether the offered evidence relates to a material fact;
- Whether the evidence is logically relevant;
- Whether the logical relevance is independent of the intermediate inference that the defendants have bad character; and
- Whether the probative value is substantially outweighed by danger of unfair prejudice.
Munson v. Boettcher & Co., Inc., 832 P.2d 967 (Colo.App. 1991) (finding the trial court erred in refusing to admit prior act evidence under C.R.E. 404(b) in a securities fraud case where the evidence offered related to similar transactions of securities) (citing People v. Spoto, 795 P.2d 1314 (Colo.1990)).
In moving to admit prior act evidence, the moving party must point to a specific reason that the evidence is being offered for other than it shows the party against whom it is being offered is generally of bad character and acted in conformance with that bad character. Examples of reasons prior act evidence may be admitted are enumerated under C.R.E. 404(b) and include offering the evidence to show, motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Accordingly, while character act evidence is generally inadmissible, C.R.E. 404(b) provides for a wide range of exceptions whereby specific instances of conduct can be admitted as long as the conduct is logically and legally relevant to the case, and counsel can point to a reason the evidence is being offered for that does not focus on character.
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