Tuesday, October 21, 2014

Expert testimony in defending sex assault cases.

     The following comes from a Colorado Court of Appeals case announced 10/9/14, People v. Brown,  permitting a defense expert to testify regarding defendant's likelihood of being the offender.  Prosecutors make frequent - often questionable - use of "experts."  As can be seen here, defense expert testimony can help too: 

“B. Defendant’s Expert Testimony

¶31      Trial courts have broad discretion to exclude expert testimony if it is unreliable or irrelevant, or if its probative value is substantially outweighed by the danger of unfair prejudice. People v. Ramirez, 155 P.3d 371, 378 (Colo. 2007). We will not disturb the trial court’s ruling unless it is manifestly erroneous. Id. at 380.

¶32      All relevant evidence is admissible unless the United States or Colorado Constitutions, statutes, or court rules provide otherwise. CRE [Colorado Rule of Evidence] 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” CRE 401; accord Jones, ¶17 (admissibility of evidence does not depend on a specific theory of relevance).

¶33      Here, defendant sought to admit testimony by a psychologist who performed a sex offense specific evaluation of defendant. The psychologist’s report found that (1) defendant had a sexual interest consistent with the interests of the general adult male population of the United States and (2) defendant’s interest in voyeurism was not significant enough to classify him as abnormal.

¶34      The trial court excluded this evidence because it was irrelevant and an attempt to “back-door” an opinion that defendant was not guilty of the charged offenses.

¶35      Evidence that defendant did not have a statistically significant interest in voyeurism would tend to make it less probable that he videotaped the victims for the purpose of sexual gratification, which is an element of the offense of unlawful sexual contact. The evidence was therefore relevant to that charge.

¶36      Further, at a pretrial hearing, defense counsel and the psychologist made clear that the psychologist would limit his testimony to the results of his evaluation. They added that the psychologist would not express an opinion about defendant’s guilt or innocence of any charge.

¶37      We therefore conclude that the trial court abused its discretion when it excluded the psychologist’s testimony concerning the charge of unlawful sexual contact. The trial court should allow defendant to present such evidence on retrial.”

            If you or someone you know is charged with a crime, call Sanderson Law, P.C., or email arl@sandersonlaw.net, to help.  303-444-8846.

Monday, October 13, 2014

Can alimony (maintenance) be modified after divorce in Colorado?

Possibly.  If the parties' separation agreement provides for contractual maintenance (formerly known as alimony), which is typical, they likely have agreed maintenance may not be modified later.  If there is no such agreement, for example if maintenance was resolved by the judge issuing permanent orders, CRS 14-10-122(1)(a) applies and states in relevant part:
maintenance may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unfair, ...   The provisions as to property disposition may not be revoked or modified unless the court finds the existence of conditions that justify the reopening of a judgment. 
Modification of maintenance must be based upon the parties' needs and circumstances at the time  rather than speculation about future conditions.  The trial court is without authority to modify a decree unless the threshold requirements of changed circumstances and unconscionability are established.  The statute above makes it even more difficult to obtain modification of property division, in the interest of finality.
The party seeking a modification bears a heavy burden, intended to discourage repeated or insubstantial motions for modification.  Failure to meet the heavy burden results in denial of modification.  Also, where the alleged change in the circumstances of the parties is one that the judge anticipated and made allowance for when entering the original divorce decree, such change is not a ground for modification. 
In exercising jurisdiction to modify maintenance courts will proceed with caution, and unless the evidence clearly shows that the original decree is no longer fair and just, it likely will not be changed.