CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, November 17, 2022

Regensburger on Res Gestae and Intrinsic Evidence

Derek Regensburger has posted Would Res Gestae Smell as Sweet by Any Other Name? Why the Colorado Supreme Court Got it Wrong in Rojas V. People by Replacing the Res Gestae Doctrine with the Intrinsic Evidence Test (Criminal Law Bulletin 2022) on SSRN. Here is the abstract:

The Colorado Supreme Court dispensed with the res gestae doctrine in Colorado in Rojas v. People in 2022. It replaced the res gestae doctrine with the intrinsic evidence test fashioned by the 3rd Circuit. In order to be exempt from Rule 404(b), evidence must now be either direct proof of the charged offense or a contemporaneous act carried out in furtherance of the charged crime or its planning. The Colorado Supreme Court erred in issuing this decision. The new test unnecessarily excludes evidence that it is so entangled or intertwined with the charged conduct that it should rightfully be considered as inseparable res gestae and exempt from Rule 404(b). The new test also is vague. The definition of intrinsic evidence--that the evidence must provide direct proof of the charged conduct--is unclear and too restrictive to be of real value. The Colorado Supreme Court also failed to correctly apply the new test to the facts of the case. The act of reapplying for welfare benefits, using the same act of unemployment, should have constituted evidence of ongoing fraud, and thus direct proof of the charged theft, even though it was not part of the charged conduct. Thus, the evidence should have been exempt from Rule 404(b). I propose a new test be put in place of the intrinsic evidence test adopted by the Colorado Supreme Court. This new test would classify evidence of other acts as intrinsic to the crime charged and not independent offenses if they are: 1) probative of an element of the crime charged and are linked in time, purpose, and design to a charged offense such that they should be considered part of the same criminal scheme or episode; or 2) linked in time, purpose, and design to the charged offense and are offered to show the facilitation or planning of that offense; or 3) inseparable from the witness testimony about proof of the charged offense such that their exclusion or excision from that testimony would leave geographical or chronological gaps that would render it incomprehensible or significantly less credible to the factfinder.

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