The Colorado Supreme Court announced on Monday that it will consider whether to abolish the doctrine that permits the use of contextual and even hearsay evidence of a crime at trial.
“I worry that the doctrine has metastasized beyond its original purpose,” wrote Court of Appeals Judge David Furman in a dissent that asked the high court explicitly to consider abolition. “How closely ‘linked’ must the evidence be? And what does it mean to be ‘linked in time and circumstances’?”
The question arises from the trial of Brooke E. Rojas, who in August 2012 applied for federal food assistance benefits through the Larimer County Department of Human Services. She recertified her lack of income the following January, because even though she had started a job on Jan. 1, she had not yet received a paycheck. By the time Rojas reapplied in Aug. 2013, the county discovered she had been working and had received a total of $5,632 in benefits to which she was not entitled.
A jury found her guilty of theft and Rojas appealed, arguing that prosecutors should have charged her with theft of food stamps, rather than general theft. The state Supreme Court found the legislature created no such separate crime and upheld her convictions, asking the Court of Appeals to address any outstanding contentions.
The appeals panel, which issued its opinion this April, considered an issue at Rojas’s trial: that prosecutors did not charge Rojas for the Aug. 2013 misrepresentation of her income, but relied on that second application as evidence for the theft crimes.
Such evidence is known as “res gestae,” which the Supreme Court defines as incidental, explanatory material to a crime that is so closely connected that it is a part of the act.
“When evidence is part of a continuous transaction that explains the setting in which the crime occurred, it is admissible as part of the res gestae,” clarified Judge David J. Richman for the three-member panel’s majority.
Rojas argued that she did not intend for her January application to be fraudulent because she misunderstood the requirements for food assistance. However, the appeals panel decided no similar confusion could exist for her second August application, and that it was proof of a pattern of behavior that the jury should know about.
“Because Rojas’s August application provided evidence of her mental state and intent to knowingly provide false information on food stamp applications, and it demonstrated that she had knowingly received a thing of value of another by deception,” wrote Richman, “it was ‘part and parcel’ of the crime charged.”
Furman disagreed, writing in his dissent that the August application prompted the investigation of Rojas’s charged crimes, but was not part of the crime itself: her benefits received unlawfully that year through July 31. Therefore, it was not res gestae evidence.
Because Rojas’ case hinged on whether she made a mistake in submitting the January application, “I believe that there is a reasonable probability that the trial court’s admission of the August 9, 2013, application contributed to Rojas’ conviction,” Furman added.
In an unusual move, the second part of Furman’s dissent was directed at the Supreme Court itself, beseeching the justices to abolish or limit the res gestae doctrine, which he argued “has long outlived its usefulness.”
“I have serious concerns that res gestae, as it is applied in Colorado case law, provides parties and trial courts with an easy way to circumvent” the rules of evidence, he wrote.
Furman’s point of view likely has sympathy on the high court. In a 2018 decision, the court’s majority decided it was proper for prosecutors to present harassing and threatening text messages from the defendant to his ex-girlfriend as evidence of his participation in an attack on a store clerk.
However, “I have serious reservations about the continued appropriateness of the res gestae doctrine and believe that, in an appropriate case, this court should consider whether to join other jurisdictions that have abandoned the doctrine," wrote Justice Melissa Hart.
She further warned that the definition of res gestae evidence in Colorado is so broad that it includes includes any uncharged misconduct related to the alleged crime. Justice Richard L. Gabriel also signed on to Hart's opinion.
In this category of evidence are also "excited utterances," which are exempted from the prohibition on hearsay under the doctrine. Solomon Gwom, a lecturer at the University of Abuja in Nigeria, described that "the main rationale for virtually all of the statements covered by the res gestae exception is the idea that spontaneity of utterances or actions insures trustworthiness."
There was no indication whether the Supreme Court's review would extend to a prohibition on all such evidence.
"Bottom line is that while it looks like there’s some appetite at the Court to get rid of res gestae, we won’t know much until the Court issues an opinion," said Christopher M. Jackson, an attorney at Holland & Hart. While the justices could decide to abolish the doctrine, including on verbal hearsay evidence, or merely narrow it, "pretty much everything is up in the air until the Court issues a final decision."
The court will also decide whether the trial judge should have issued an instruction placing limits on how jurors should have considered the August 2013 application in their deliberations. The case is Rojas v. People.