Menu
- Introduction
- Types of Domestic Violence
- Habitual DV Offenders
- Power and Control
- The Cycle of Violence
- Counter-Intuitive Victim Behaviors
- Mandatory Arrest
- Lethality Factors
- Protection Orders and Bond
- Firearm Relinquishment and Affidavits
- Recantation
- Consulting the Victim about a Plea Offer
- “No Face, No Case”
- Prima-Facie Case Requirement
- Preparing for Trial
- Trial
- Sentencing
- Victim Resources
A defendant may offer plead guilty if you remove the DV designation. Once you charge a case as a crime of domestic violence, however, you cannot plead that case to an offense that does not include a domestic violence designation, sometimes called a “DV tag,” unless you “would be unable to establish a prima facie case . . . if the defendant were brought to trial on the original domestic violence offense.” C.R.S. § 18-6-801(3).
That means all proposed charges in your plea agreement must be acts of domestic violence unless you can, at the time the court hears the plea, ethically represent to the judge that you could not establish even a “prima facie” case of DV at trial on the original offense. Put differently, the inability to establish a prima facie case at trial of either the act or the presence of an intimate relationship constitutes a valid basis to offer a non-DV plea.
“Prima facie” is not defined in § 18-6-801(3), but is Latin for “on its face” or “at first sight.” According to Black’s Law Dictionary (11th Ed.), prima facie evidence is “[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.” People v. Ryan, 525 P.3d 673, 681 (Colo. App. 2022) (adopting this definition). Similarly, Black’s Law Dictionary (10th Ed.) defines prima facie evidence as evidence that is “[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted.” People In Int. of Z.T.T., 394 P.3d 700, 703 (Colo. 2017) (adopting this definition).
The prima-facie case requirement exists to ensure that domestic violence offenders receive appropriate treatment, relinquish their firearms, and, if they continue to abuse intimate partners, qualify for the felony Habitual Offender charge.
Hypotheticals
Prosecutor charges defendant with Assault in the Third Degree (M1)—DV. During negotiations with Defendant and after speaking with the victim, the prosecutor learns that the defendant and the victim did not, in fact, have an intimate relationship. In this case, the prosecutor can offer the defendant a non-DV plea because the prosecutor can ethically represent to the judge at the time of the plea that despite initial appearances at the time of arrest, the prosecutor would not be able to establish a prima facie case at trial that the two were in an intimate relationship at the time the defendant committed the crime against the victim.
Defendant commits a misdemeanor act of domestic violence against the victim and the police officer arrests the defendant for a misdemeanor crime of DV. The prosecutor reads the case and disagrees with the police officer’s analysis that this was a crime of domestic violence. The prosecutor offers the defendant a non-DV plea. Is the prosecutor subject to the prima facie case requirement? Yes. In Colorado, misdemeanors are charged by police officers. At the time of the initial charges, the crime was charged as a crime of domestic violence even though the prosecutor later disagreed with that charge. Although the prosecutor might feel confident in making the no-prima-facie-case representation to the judge at the time of the plea, the prosecutor must legally and ethically do so.
Prosecutor charges Defendant with a single count of Harassment (M2)—DV. After negotiating with defense counsel, Prosecutor decides to offer the defendant a “split plea”: 1) a conviction to Harassment (M2), non-DV, and 2) a deferred judgment to Harassment (M2)—DV with a sentence of 12 months of probation with the condition that the defendant complete DVOMB treatment. Is this legal? Probably not. The prosecutor cannot ethically represent to the judge that there is a factual basis to support pleading guilty to a crime of domestic violence and, at the same time, represent to a judge that there is no prima facie case of domestic violence—at least not when the pleas derive from the same criminal act. The prosecutor should decide whether there is a prima facie case of DV before making a plea offer and then make an offer consistent with that decision.
Defendant is charged with various DV crimes. After charges were filed, the victim called the DA’s office and left a VM saying: “I am the so-called victim in [the defendant’s] case. I want you to drop the charges. I will not testify under any circumstances. This is the last time you will hear from me.” You disclosed this to the defense in accordance with Rule 3.8(d) of the Colorado Rules of Professional Conduct. Can the prosecutor now offer the defendant a non-DV plea considering the victim’s potential absence from trial? This is debatable, and you should discuss this matter with supervisors at your office. If you can establish a prima facie case of DV at the trial even without the victim, including the presence of an intimate relationship between the abuser and the victim, then you cannot offer the defendant a non-DV plea. If, however, you need the victim to testify at trial to establish the criminal act was an act of DV, including the presence of an intimate relationship, then you may be able to make a good-faith representation there is no prima facie case of DV. This is still questionable, however, because there is no guarantee that a DV victim will not testify just because they claim they will not. The question is whether you can establish a prima facie case of DV at trial, not at the time of the plea. This is why you should speak with your supervisor before making a non-DV offer in such a situation.
Defendant is charged with Criminal Mischief (M1)—DV. Prosecutor offers a defendant the following deal: PG to Criminal Mischief (M2) with an open sentence, including a decision by the judge as to whether the crime constituted an act of domestic violence. Is this legal? Probably not. To understand why not, you must read the prima facie requirement carefully. The prima facie requirement states:
No court shall accept a plea of guilty or nolo contendere to an offense which does not include the domestic violence designation required in section 16-21-103, C.R.S., when the facts of the case indicate that the underlying factual basis includes an act of domestic violence as defined in section 18-6-800.3(1) unless there is a good faith representation by the prosecuting attorney that he or she would be unable to establish a prima facie case if the defendant were brought to trial on the original offense.
Here, the defendant would be accepting a plea of guilty to an offense that did not include the domestic violence designation without the good-faith representation by the prosecuting attorney at the time of the plea that there was no prima facie case of DV. In fact, the DA is reserving argument on DV specifically because the DA plans to argue it was an act of DV. Although defense counsel might try to negotiate an agreement like this, although it might be a tempting way to resolve DV cases where the defendant is prepared to admit to the crime but doesn’t want the DV designation on their record, and although some judges may allow such a plea, this is probably not legal.