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Victim Impact Evidence in Colorado: New Case 17CA1583 People v Martinez

“Victim impact testimony packs a punch at a criminal trial.” – People v. Martinez, 17CA1583 (COA Oct. 8, 2020)

Division VII. Opinion by Judge Lipinski, Navarro and Tow, JJ., concur.

For the government: Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado

For the Defendant: Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado

A criminal trial has two parties: the defendant and the government. The complainant (a/k/a named victim) is not a party to the case, even after many decades of political pressure and amendments to the Constitution in the name of victims’ rights. It is difficult or impossible to balance the presumption of innocence with the notion that a third party should have a say in what happens before the defendant is found guilty of any conduct. Courts have continued to struggle with the government’s interest in showing a jury the effect that a crime had on the named victim with the defendant’s right to a fair trial.

In Martinez, the Court of Appeals recognized the problems inherent in victim impact testimony. Ultimately, it decided that the error didn’t matter because the defendant would have been found guilty anyway. This “harmless error” analysis considers how a jury would have voted if the evidence was not admitted. 

Martinez was tried for sexual assault against A.R., and the trial focused on whether Martinez had known that A.R. was too intoxicated to consent to sex. In addition to evidence relevant to the elements of the charged crime, the prosecution introduced victim impact testimony. That is, the prosecution admitted evidence about the effect of the crime on A.R. 

The court recognized that “No Colorado case has addressed the admissibility of victim impact evidence during the guilt/innocence phase of a criminal trial.” It cited Wyoming and North Carolina cases for the definition of victim impact evidence before a brief discussion of the Supreme Court history of the admissibility of victim impact evidence in the penalty phase of a death penalty case.

The court’s analysis of victim impact evidence in other states

Curiously, the Wyoming case, Schreibvogel v. State, 228 P.3d 874, 883 (Wyo. 2010), name-checked victim impact evidence, but the evidence in that case was used to bolster the credibility of the named victim after it had been attacked. The case, one of sexual assault, seemed to turn on whether the encounter was consensual, and the complainant’s mental state after the encounter was admitted after this point was argued.

The North Carolina case, State v. Graham, 650 S.E.2d 639, 645 (N.C. Ct. App. 2007), found victim-impact evidence to be inadmissible because it did not depict “the context or circumstances surrounding the commission of the crime.” The evidence offered was how the crime impacted the named victim’s mother, not the named victim.

Of course, in both cases the error was found to be harmless because of the strength of the other evidence against the defendants.

The Martinez court followed the logic of Graham, holding that the victim impact evidence was inadmissible because it did not make any material fact or element of the offense more or less probable. 

Curiously, the court did not attempt to distinguish Schreibvogel, the Wyoming case with seemingly similar circumstances. One likely distinguishing fact is that in Martinez, the named victim had no memory of the events and so her credibility in recounting them was not at issue. 

Additional issues considered by the court in Martinez

The opinion considered other assigned errors, finding that none warranted a reversal of the conviction.  Issues include whether the prosecutor committed misconduct by presenting a generic tailoring argument during closing, whether it was error to admit the opinion testimony of a detective not introduced as an expert, and whether the court erred in refusing to give a tendered theory of defense instruction.

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