Understanding The Issues Surrounding Recanting A Statement In Colorado Criminal Domestic Violence Cases

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Colorado Domestic Violence Cases And The Impact Of Recanting Alleged Victims

Colorado domestic violence criminal cases can have devastating consequences for those on both sides of the courtroom. In a very high percentage of these cases, the alleged victim (the victim) recants their statements to law enforcement. This article is focused on issues surrounding the “recanting”  where victims attempt to “take back” their statements or simply refuse to testify at trial.

Victim retractions significantly impact the State’s ability to proceed with even the most rudimentary prosecution of a Colorado criminal case. They can have devastating consequences if a case goes to trial. The absence of a victim’s testimony or inconsistent or contradictory testimony will almost certainly weaken the state case, which is almost always fatal to a prosecution that must prove its case beyond a reasonable doubt.

When the “no drop” and mandatory arrest laws were enacted in Colorado in the mid-1990s, I was a seasoned prosecutor with the Arapahoe / Douglas County District Attorney’s Offices. I well remember the confusion the new laws caused and have observed, over the last 30 years since they were enacted, how these laws have impacted the balance of discretion in the criminal justice system and forced law enforcement – the police – the prosecutors – the judges and even victim advocates … to bend and twist attempting to prosecute these cases.

In 2016, Westword wrote the following about Colorado’s mandatory arrest and no-drop policies in domestic violence cases:

Victim advocacy groups pushed for the tough legislation, pointing to numerous cases that suggested law enforcement typically didn’t take domestic assaults as seriously as other types of crimes.

The 1994 overhaul required police to make an arrest whenever there was probable cause that a crime against person or property had occurred “as a method of coercion, control, punishment, intimidation or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.”

An arrest then sets in motion a series of other mandates, including a night in jail before being allowed to bail out and a 36-week series of classes or therapy sessions for convicted offenders

Over eighteen months of interviews with dozens of people involved in enforcing the law, UNC criminal – justice professor Mary West-Smith found:

… police officers confused about the circumstances that trigger mandatory arrest; prosecutors frustrated by a lack of discretion over which cases to pursue in court; and a surprising number of cases in which nonviolent parties, and even victims of domestic violence, ended up being arrested for minor property damage — which, under the statutory scheme, can get a person labeled as a “domestic-violence offender” deserving of treatment and monitoring.

The reality of these no drop and mandatory arrest laws is this – for thirty years alleged domestic violence victims have been forced into a confused system of criminal law that gives them little control over what often is the destruction of their known lives – their relationships, their families, and sometimes their fundamental economic and personal survival.

They are left with the only option they may have – recanting their original report of domestic violence, whether the report was true, exaggerated, or a complete fabrication.

This article primarily focuses on the practical impact a recantation by the primary victim has on the ability of:

(1) the decision of the victim to recant,

(2) the prosecutor to proceed with a case following a recanted statement, and

(2) the actual risk to the alleged victim of domestic violence if it is established they have either lied under oath (perjury) or made a false statement to law enforcement.

While A Commonly Held Belief Is To The Contrary – Alleged Victims Of Domestic Violence Have NO Legal Authority To Unilaterally “Drop Charges” Under Colorado Law…

Due in part to the media’s influence, it is widely believed that the alleged victims of crime can unilaterally decide to “drop charges.” The reality is this: only a prosecutor can drop charges.

In the criminal justice system, the prosecutor, not the judge, and no other party to the case has that kind of extraordinary power.

Prosecutors are the most powerful officials in the American criminal justice system. The decisions they make, particularly the charging and plea-bargaining decisions, control the system’s operation and often predetermine the outcome of criminal cases. Prosecutorial power is vast and unrestrained, and the mechanisms that purport to hold prosecutors accountable are weak and often totally ineffective. In addition, the most important prosecutorial decisions are made behind closed doors – away from public scrutiny and thus immune from public accountability.

The most remarkable feature of these important, sometimes life-and-death decisions is that they are totally discretionary. The deficiency of prosecutorial discretion lies not in its existence, but in the randomness and arbitrariness of its application.

On the other hand, prosecutors are legally and ethically bound to drop charges when there is insufficient evidence to prosecute. This begs the question – if an alleged victim of a crime of domestic violence recants their statement, will that motivate the prosecutor to exercise their unilateral power and will that result in a dismissal of the case?

The Decision To Recant Is Complex – An Alleged Victim Of Domestic Violence Is Placed In An Almost Impossible Position

It is often the case that well-meaning prosecutors believe that by moving forward with a domestic violence case, notwithstanding the wishes of the alleged victim, they are helping to restore the victim’s power and agency while destroying their known world.

Ironically, the goal of protecting the victims of domestic violence is one of the reasons our Colorado state laws limit the prosecutor’s ability to withdraw criminal charges that have been filed. The rationale is this: if not for mandatory arrest and “no-drop” policies, accused domestic violence offenders would threaten victims to compel the prosecutor to drop charges.

The thinking behind these policies (and there IS support for them) is that if the prosecution had to comply with the request to drop charges, the victim would not be shielded against threats and other forms of coercion by the accused. On the other hand, some victims of suspected domestic abuse think that if the charges are dropped, the accused won’t take revenge, and the relationship can continue and improve.

Both can be true.

Current research has shown that forcing victims to testify has the opposite effect and may serve to re-victimize and re-traumatize the victim by removing her control over the case. Victims report feeling safer and experiencing less pre- and post-trial violence from their abusers when they have some actual power and control during the prosecution.

While both arguments have persuasive weight, the decision to recant is complex.

Understanding The Legal Implications Of Recanting A Statement In Colorado

Making The Decision To Recant – Part 1

Understanding the legal implications of recanting a statement in Colorado requires careful consideration of both the context in which the original statement was made and the potential consequences of withdrawing it. In criminal cases, recanting a statement can significantly impact ongoing criminal investigations and evidence adduced at a jury trial.

Suppose the original statement was given under oath or during an official investigation. In that case, retracting it can lead to legal complications, including possible perjury charges if it’s determined that the initial claim was knowingly false.

With the introduction of body-cam evidence in Colorado domestic violence cases – the alleged victim is at a definite disadvantage when they attempt to recant their statement. It is vital to understand that once a statement has been recorded—whether through testimony, sworn affidavits, body cam or police reports—it becomes part of the public record and can be scrutinized and used by the state’s attorney.

Ultimately, while recantation may be possible without facing consequences, an alleged victim may be charged with several different crimes, but that is not the focus of this article. I have written many other articles about this issue. This article will focus on the mechanism of the decision to recant itself.

Making The Decision To Recant Part 2

Several important considerations must be made before deciding to recant a statement to law enforcement in Colorado.

First Questions To Ask:

1. What were the reasons for making the initial complaint to the police?

2. What are the motivations for changing that statement after it has been tendered it?

Factors impacting the decision to recant can include one or more of the following:

1. A belief that the charges are false or exaggerated.
2. The alleged victim was the primary aggressor.
3. The police report was the result of someone mistakenly calling the police to help with a problem, and mandatory arrest laws prevented the mediation that was hoped for by the alleged victim.

Other reasons for a victim to recant are:

Fear of retribution – particularly victims of domestic violence.

Perpetrator induced/groomed – this can come from the perpetrator directly or the family and friends group. This kind of pressure can force the victim to change their statement from a direct threat, coercion, and /or straight up blackmail.

Shame or embarrassment – some victims are ashamed of what happened to them, mainly in sexual assault and some domestic violence cases. Recantation can arise out of fear of stigma.

Trauma and memory – Memory is formable; a traumatic event can complicate memories and create inconsistencies as victims try to recall what was happening to them at the time of the event.

A victim’s lack of faith in the system  – some victims fear that they will not be believed or the process will be overly traumatizing; as a result, they change their statement.

Guilt or empathy for the one who committed the crime – maybe the victim had a close relationship with the perpetrator to the degree that he or she feels guilty, or empathy for that person.

Self-blame – When the victim decides it was their fault for the alleged crime even if this was not the case.

Evaluating the decision to recant should involve the help of the supportive resources available to the victim in the moment. Emotional support from trusted friends and family, and or mental health professionals help navigate this complex decision-making journey.

In addition, fully understanding one’s actual motives in attempting to change an existing statement to law enforcement helps clarify whether recanting is the best course of action. That understanding can also come from learning about one’s rights under the Colorado Victim’s Rights Act which might provide alternative solutions to address the current crisis.

Is Recantation Necessary To Impact The Strength State’s Case?

Assessing whether an alleged victim should or even needs to recant a statement is a highly nuanced process that requires careful consideration of the impact of the original complaint to the police.

An alleged victim of domestic violence or any crime should first evaluate the content of the initial statement. Does it hurt the defense? Was the statement ambiguous – weak – ambivalent? Was it made during a moment of heightened emotion, heavy intoxication, or mental confusion?

On the other hand, if the original statement was factually clear and strong at its inception and is supported by other corroborative evidence, revising the statement may appear as a deliberate falsity and more likley will lead to legal possible legal complications for the alleged victim, such the most common charge  of  false reporting.

False Reporting to Authorities (C. R. S. § 18-8-111)

False reporting to authorities is defined as the act of knowingly:

● activating manually or by any other means falsely causing the activation of a fire alarm or other emergency exit alarm

● preventing the activation of a fire or emergency alarm by any means

● creating a false report or causing a false report to be transmitted to law enforcement authorities with the knowledge that the crime or incident did not occur

● presenting information related to an offense that is known to be false, providing false identification to law enforcement authorities

(False reporting is a Colorado class 2 misdemeanor – punishable by up to 120 days in jail and – or  a fine of up to $750.00.)

Other possible, but less common charges are:

First-Degree Perjury CRS 18-8-502

(1) A person commits perjury in the first degree if in any official proceeding he knowingly makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law.

(2) Knowledge of the materiality of the statement is not an element of this crime, and the defendant’s mistaken belief that his statement was not material is not a defense, although it may be considered by the court in imposing sentence.

(3) Perjury in the first degree is a class 4 felony.

(First-Degree Perjury CRS 18-8-502 is a class 4 felony and is punishable by sentence of 2 to 6 years in prison and/or $2,000 to $500,000 in fines).

Second-Degree Perjury CRS 18-8-503

(1) A person commits perjury in the second degree if, other than in an official proceeding, with an intent to mislead a public servant in the performance of his duty, he makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law.

(2) Perjury in the second degree is a class 2 misdemeanor.

(Second-Degree Perjury CRS 18-8-503 is a class 2 misdemeanor, punishable by up to one year in jail).

False Swearing CRS 18-8-504

(1) A person commits false swearing if he knowingly makes a materially false statement, other than those prohibited by sections 18-8-502 and 18-8-503, which he does not believe to be true, under an oath required or authorized by law.

(2) False swearing is a petty offense

(False swearing is a petty offense punishable by up to 10 days in jail and/or a fine of up to $300.00 fine.)

Steps After The Decision To Recant Is Made

If a victim decides they wish to retract their statement, it is important to ensure mutual clarity and to try to protect against potential legal complications.

The text of the “recant” must be crystal clear – for example what the victim is now saying acually happened and the specfiv reasons for retracting must be trasnparent. The more specific the better, including dates and locations or other details that help clarify the new statement and the timeline of the incident.

How a victim expresses their recantation to law enforcement plays a crucial role not only in conveying what exactly happened during the encounter with the police but also may provide protection from adverse repercussions if law enforcement decides to proseucte the victim.

Additonal Ideas To Facilitate Communication With Law Enforcment:

The victim should make certain to get into the right mental state prior to contacting law enforcement. Confidence may be enhanced by carefully reviewing the initial statement to fully recall and to recognize the nature of and the “weight” of words previously spoken or wirtten by the victim in the case.

The victim should make explicit that this is a formal retraction of the previous claims and also what specific partsof the orginal staement are inaccurate or misleading and why.

The victim should show any evidence supporting the new statement and the context behind the decision to recant, … which will make a stronger case for the truth of the recantation.

The victim should be polite and apologize for any possible inconvenience your statement might have caused in the case and ask to make certain the statement is being recorded – (video and or audio if possible) – which will confirm the recantation has been received and will create a  formal record of the change in position.

The admission of any written recantation should be notarized. This adds an extra level credibility to the document.

A copy of the original statement should be retained.

The victime should consult a “victim’s rights lawyer” before actually taking any steps to recant. These firms may be able to help to correctly document the recantation and may help to contact the appropriate entities and faciliate the recantaiton.

After The Recant – What Next? – The Absolute Discretion of the Prosecution

A recanting victims does not necessarily mean there will be a dismissal of a case but a recantation in a domestic violence case is almost always a body blow to the prosecution’s case. While the system well acknowledges that recantations are serious, all parties involved collectively understand that a recanting victim can be motivated by fear, manipulated by unscrupulous actors (including the accused), or simply the product of an alleged victim who—after some contemplation – has had a change of heart.

As a result, prosecutors exercise caution in addressing these cases and the principle of “evidence-based prosecution” is often employed in such instances. Evidence based prosecution is a clear eyed review of the strength of the case based on the totality of the available evidence, if any, other than relying solely on the victim’s statements.

It is axiomatic to DA’s that it is very likely believe the first account of an accusation of violence is more credible than a subsequent repudiation, especially if there is evidence of duress or force.

In many Colorado domestic violence cases, such as stalking or harassment cases, common attributes are control and power dynamic issues where the abuser will try to force the victim into recanting their claim. When faced with a “non-cooperating” victim, the DA and his or her investigators will try to move forward with the remaining evidence such as using the testimony from third parties such as neighbors, friends or family members who knew of the abuse and saw reactions following those incidents.

Primarily, the prosecution will rely on any statements and/or the testimony of eye-witnesses to the happening and post-event. Neighbors, friends, family members and bystanders that may have heard or saw something can bring valuable pieces to the puzzle.

To start, it is fundamental to the prosecution of most criminal cases that prosecutors will rely on a variety of available evidence to support charges such as domestic violence.

This evidence can include:

● Photographs, including photos of injuries and property damage.
● Audio recordings such as phone calls and 911 calls.
● Other witness statements.
● Social media posts, emails, and texts.
● Medical records and statements of medical personnel.
● Surveillance – Body Cam footage.
● Corroborative evidence.
● Expert testimony (such as domestic violence experts).

Other victims, if they exist, could be called to testify against the Defendant if the crimes are similar enough and / or form a pattern of abuse.

Likewise, expert testimony about the nature of domestic violence or trauma and reasons why a victim might recant their statements can prove critical to laying the foundation for an effective prosecution without a cooperative victim. Experts will likely include people in a position to know (Doctors, Nurses, Law Enforcement Officers, Social Workers…)

Summary and Conclusion – Understanding Issues Surrounding Recanting A Statement In Colorado Criminal Cases

This article attempts only to assist an individual identified as an “alleged” victim of domestic violence with analyzing – assessing whether recantation is a good option before the decision to recant is made.

Whether a recant of a statement to the police is  “necessary” in a specific case is complex and involves a thorough understanding of the consequences of the decision not only to that victim but whether the recantion will have substantial impact on the criminal case in light of the other evidence in the case.

Only a careful assessment of the issues raised inthis article on a case-by-case basis can guide the alleged victim toward making an informed decision that not only aligns with that victim’s moral compass but also considers the practical realities of the criminal justice system.

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Colorado Criminal Law – Understanding Issues Surrounding Recanting A Statement In Colorado Criminal Cases

The reader is alerted to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate when it was drafted, but it cannot account for changes occurring after it was uploaded.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at: hmsteinberg@hotmail.com

A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

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H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way.