People v. Cohen
2019 COA 38
Colo. Ct. App.2019Background
- Defendant Emily Cohen, a former Colorado immigration attorney, was tried on 21 counts (convicted on 13) alleging theft by taking client payments and failing to perform services or refund fees.
- Prosecutors presented evidence about Cohen’s handling of client funds, deposits into personal accounts versus COLTAF trust accounts, and OARC (Office of Attorney Regulation Counsel) investigations dating back to 2011–2014.
- The trial court admitted into evidence three OARC complaints and allowed extensive testimony about Cohen’s alleged ethical misconduct; the court also instructed the jury with language from Colo. RPC 1.15A about when fees are “earned.”
- Jurors asked whether OARC charging decisions and COLTAF rules governed the theft elements; the court replied without consulting counsel and gave a modified Allen instruction; jurors showed confusion about the relation between ethical breaches and theft elements.
- Cohen objected at trial to admission of the OARC complaints (hearsay, Confrontation Clause, relevance/undue prejudice), to the RPC-based instruction, to extended testimony about non-fund-related misconduct, and to the court’s ex parte responses to juror questions and Allen charge.
- The court of appeals held the OARC complaints were largely inadmissible hearsay, violated the Confrontation Clause, and were more prejudicial than probative; the judgment was reversed and remanded for a new trial, with guidance on limiting evidence and jury instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of OARC complaints | Complaints show similar misconduct, defendant’s intent, and rebut alleged investigative bias; admissible under "opening the door." | Complaints are hearsay/testimonial, unnecessary to prove notice/intent, and highly prejudicial; Confrontation Clause violated. | Court: Complaints largely inadmissible hearsay, testimonial for Confrontation Clause, and unfairly prejudicial; admitting them was reversible error. |
| Scope of "opening the door" doctrine | Defense opened door by suggesting OARC bias; prosecution may introduce complaints to rebut. | Opening the door is limited to evidence necessary to correct misleading impressions; does not permit wholesale admission of prejudicial material. | Court: Doctrine is limited to what is necessary to remove unfair prejudice; here prosecution exceeded that scope. |
| Use of RPC-based instruction (COLTAF/when fees earned) | Instruction explains relevant context about handling funds and intent. | Instruction risked conflating ethical rules with criminal elements and confused jury without explanation. | Court: Language not objectionable per se but court erred by not explaining limits and application; must clarify that ethics violations alone do not prove theft. |
| Allowing non-fund-related testimony about ethics/credibility | Testimony shows pattern of dishonest conduct and bears on credibility/intent. | Testimony introduced prejudicial, irrelevant matters unrelated to charged thefts. | Court: Much testimony went beyond permissible scope and contributed to unfair prejudice and confusion. |
| Court’s ex parte responses to jurors and modified Allen charge | Responses were adequate; jury was instructed to follow instructions. | Court acted without counsel/defendant present, gave an unclear response and modified Allen, contributing to confusion. | Court noted error in handling juror questions and Allen instruction without counsel/defendant present; highlighted need for careful procedure on remand. |
Key Cases Cited
- Golob v. People, 180 P.3d 1006 (Colo. 2008) (opening-the-door doctrine prevents misleading impressions but is limited to rebuttal necessary to remove unfair prejudice)
- People v. Tenorio, 590 P.2d 952 (Colo. 1979) (prosecution may explain or rebut adverse inferences opened by defense questioning)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars admission of testimonial out-of-court statements absent opportunity for cross-examination)
- Davis v. Washington, 547 U.S. 813 (2006) (test for whether statements are testimonial depends on primary purpose and foreseeability of later use at trial)
- United States v. Martinez, 988 F.2d 685 (7th Cir. 1993) (rebuttal evidence admissible only to extent necessary to remove unfair prejudice from original evidence)
- United States v. Jett, 908 F.3d 252 (7th Cir. 2018) (opening-the-door doctrine governed by proportionality and fairness)