2019 COA 138
Colo. Ct. App.2019Background
- Edmund Marx was convicted of multiple sexual-assault-related offenses based on allegations by a female accuser who said assaults occurred when she was a teenager. No physical corroboration; primary witnesses were the accuser and Marx.
- At trial the prosecution called Sheri Vanino as an expert on sexual-assault victim behavior; she testified to statistical rates (e.g., 2–6% false reports by children/teens; 1-in-4 women sexually assaulted; ~50% of child abuse by family).
- Defense sought to introduce (1) a neighbor’s videotaped testimony challenging the accuser’s truthfulness based on prior behavior and (2) evidence under Colorado’s rape-shield statute that the accuser had made prior false reports of sexual assault (offer of proof via affidavit).
- Trial court allowed Vanino’s statistical testimony, excluded much of the neighbor’s testimony, and denied an evidentiary hearing under § 18-3-407(2), reasoning the defense had not shown prior allegations were "false in fact."
- On appeal the court reviewed admissibility standards (expert testimony, CRE 401/608, and the Rape Shield Statute) and reversed the convictions in part because of improper expert/statistical testimony and erroneous denial of a § 18-3-407(2) hearing; it affirmed exclusion of the neighbor’s testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony giving statistics on false-report rates and prevalence of sexual assault | Vanino’s background qualifies her; statistics are helpful background for jurors to evaluate victim behavior | Statistical opinions improperly bolster accuser credibility and are irrelevant to disputed facts; exceed permissible expert scope | Reversed: expert could not give percentages about fabrication or prevalence—those opinions improperly bolstered credibility and were irrelevant |
| Admissibility of videotaped neighbor testimony attacking accuser’s truthfulness | Neighbor should be excluded because his specifics were collateral, equivocal, and mainly described childhood misbehavior | Testimony impeaches credibility by showing pattern of untruthfulness | Affirmed exclusion: testimony was not sufficiently probative of character for untruthfulness and risked undue emphasis on collateral matters |
| Entitlement to an in camera evidentiary hearing under Colorado’s Rape Shield Statute (§ 18-3-407(2)) | Court argued defense failed to prove prior allegations were "false in fact" in the offer of proof, so no hearing required | Defense needed only to show the offer of proof could, at an evidentiary hearing, establish falsity by a preponderance; affidavit met the offer-of-proof standard | Reversed: defendant entitled to § 18-3-407(2) hearing; trial court applied an impermissibly high standard at the offer stage |
| Standard of proof at offer-of-proof stage under § 18-3-407(2) | (People) Trial court applied preponderance but found affidavit insufficient — effectively required proof of falsity pre-hearing | (Marx) Offer need only show defendant could prove falsity by preponderance at the hearing; not prove falsity at offer stage | Held defendant must show only that, at an evidentiary hearing, he could prove falsity by a preponderance; offer here was sufficient to trigger a hearing |
Key Cases Cited
- People v. Wittrein, 221 P.3d 1076 (Colo. 2009) (experts may not opine on a witness’s credibility or whether child victims fabricate allegations)
- People v. Snook, 745 P.2d 647 (Colo. 1987) (expert testimony implying victim’s truthfulness is impermissible)
- People v. Weiss, 133 P.3d 1180 (Colo. 2006) (defendant must show by preponderance at an evidentiary hearing that victim made multiple reports that were false; offer-of-proof requirements explained)
- Hagos v. People, 288 P.3d 116 (Colo. 2012) (plain-error standard; obvious and substantial error framework)
- People v. Relaford, 409 P.3d 490 (Colo. App. 2016) (distinguishing permissible expert testimony about victim behavior from impermissible credibility opinions)