If a person was serving a probationary sentence at the time they witnessed a crime, but their probation ended by the time they testified at trial, the defense does not have the right to let jurors hear about that witness’s connection to the prosecution, Colorado’s second-highest court ruled on Thursday.

A three-judge panel for the Court of Appeals acknowledged that in other scenarios, Colorado defendants are allowed to cross-examine a witness in front of the jury about the fact they are on probation. The logic is that the witness may feel pressured to cooperate with the prosecution and help convict the defendant — otherwise, prosecutors might try to revoke the probation in the witness’s own case.

But the panel concluded a witness who is on probation at the time they see a crime, but not at the time of trial, is several steps removed from needing to testify in a way the prosecution approves of.

“Those steps include the police officer’s decision to arrest the defendant, the prosecution’s investigation into the matter, its decision to bring charges against the defendant, and finally its selection of which witnesses to call at trial,” wrote Judge Lino S. Lipinsky de Orlov in the Feb. 27 opinion.

In 2019, the state Supreme Court held that judges violate the constitutional right of defendants to confront the witnesses against them by prohibiting questions about a witness’s probationary status. In that case, the witness was serving her probationary sentence at the time of trial. The Supreme Court noted she was in the “vulnerable position” of either having to provide favorable testimony for the prosecution or face a perceived threat of revocation.

As a result, a witness’s probationary status is “always relevant” to the jury under those circumstances.

Last year, the Court of Appeals extended that logic to situations in which a witness is facing criminal charges in the same jurisdiction where he is testifying. Lipinsky, who also authored that decision, noted the power dynamics can raise an important question: “To what extent, if any, is the witness’s testimony influenced by the desire to curry favor with the prosecutor?”

In the case of Mardi Jean Gray, Weld County jurors convicted her of two assault offenses arising from a domestic dispute with her then-romantic partner. Gray maintained she acted in self-defense against the victim’s aggression, but the victim and other witnesses testified to Gray being the aggressor.

At the time the victim spoke to responding officers, he was on probation for a misdemeanor offense of driving under the influence. Although his probationary terms forbade him from having alcohol, he and Gray had been drinking before the assault.

The defense sought to cross-examine the victim about his probationary status at trial, noting the threat of consequences for a probation violation provided a “motive for him to fabricate essentially being a victim.”

Chief Judge Julie Hoskins denied the request, as the victim had since completed his probation. Therefore, “he is no longer in that vulnerable position” and jurors, by hearing about his prior offense, might improperly hold his misdemeanor DUI against him.

Following her conviction, Gray appealed Hoskins’ decision. She argued there was little daylight between the incentives that existed for the witness in her case and the probationer witnesses the Supreme Court and Court of Appeals had in mind elsewhere.

The victim “might have been influenced by his probationary status to provide statements to police out of the expectation of, or hope for, leniency or immunity with regard to his probation,” wrote public defender Kevin M. Whitfield, “or to avoid suspicion related to the immediate incident, if he cooperated with police to incriminate Ms. Gray.”

During oral arguments before the Court of Appeals panel, however, Whitfield conceded there was no prior court decision extending the right to cross-examination in the precise circumstances of Gray’s case.

“Is there any evidence in the record that when he was making statements (to responding officers), he was concerned about his status?” asked Judge Sueanna P. Johnson. “Or the prosecution or police had talked to him about a possible violation — about the fact that he was drinking alcohol?”

No, Whitfield responded.

And yet, “isn’t it reasonable for the witness to think, ‘Oh, my gosh, I better shift the blame so my probation isn’t being revoked’?” wondered Lipinsky.

Ultimately, the panel clarified that defendants in Gray’s shoes may sometimes be able to raise a witness’s status as a former probationer in front of the jury. But the right was not automatic, and there was no indication the victim’s status in Gray’s prosecution had any bearing on her case. 

The case is People v. Gray.