Boulder County Bar Association Bar Media Manual

Boulder County Bar Association Bar Media Manual The following are excerpts from the Boulder County Bar Association s Bar Media Manual. A full copy of the manual is available at http://www.boulderbar.org/bar_media/index.html. The manual provides a comprehensive overview of criminal proceedings in Colorado. We would like to thank the Boulder County Bar Association for providing this information. A full table of contents is available at the end of this section. Contents Copyright 2003 Boulder County Bar Association 3.2 OVERVIEW OF THE CRIMINAL JUSTICE PROCESS In broadest terms, the criminal justice process begins with an investigation by some law enforcement authority. That investigation maybe as simple as pointing a radar gun at a speeding car, or as complex as a months-long undercover operation into a fraudulent stock selling scheme. An investigation that bears fruit results in the filing of charges. Depending on what specific law was allegedly violated, the charges may be filed against a defendant in municipal, state or federal court. Depending on the seriousness of the alleged violation, state court charges may be filed in either county or district court. Once charges are filed, a prosecutor normally takes over the presentation of the case. City attorneys prosecute cases in municipal court, district attorneys (and sometimes the state attorney general) prosecute cases in state court and United States attorneys (and sometime the U.S. attorney general) prosecute cases in federal court. The prosecutor is responsible for any further investigation that needs to be done, as well as for handling the case in court through either plea negotiation or trial. People who are charged with criminal offenses in the United States have the right to a criminal defense attorney. An accused can hire any attorney who is licenses to practice law in that court. If the case is serious enough, and the prosecution is seeking a jail or prison sentence, people who are deemed indigent - who cannot afford to hire an attorney - are entitled to an attorney at state expense. In both the state and federal systems in Colorado, public defender systems have been set up to handle most of these cases. Sometimes, the public defender cannot handle a particular case and a private lawyer is appointed to represent the defendant. The case is presided over by a judge who conducts all court hearings, approves or rejects any proposed settlements of cases, and imposes a sentence in any case that results in a conviction. Criminal cases may be resolved through trial, or they may be settled through negotiations resulting in a plea bargain. Persons who are convicted at trial or through a guilty plea are then sentenced, under the relevant law, to a fine, probation, jail, prison or, in certain very limited cases, death. A party that believes errors were made during this process may appeal the decisions to a 'higher' court. These higher courts are appellate courts that review the actions of the trial judge to determine whether any errors were committed and whether those errors affected the outcome. A defendant who is successful in getting a conviction reversed on appeal is returned to the trial court for a new trial or other appropriate proceeding. CHAPTER 4: OVERVIEW OF A CRIMINAL CASE 4.1 FILING OF CHARGES GENERAL In Colorado, prosecutions for state criminal offenses are brought by indictment, information, complaint or summons and complaint. The prosecutor holds broad discretion in deciding how to initiate a prosecution. An indictment is returned by a grand jury. An information is filed by a prosecutor. A complaint and a summons and complaint may be filed by either a prosecutor or a law enforcement officer. FELONIES Prosecution for a felony may be started one of three ways: 1) the return of a grand jury indictment; 2) the filing of an information in district court by the district attorney or 3) the filing of a felony complaint in county court by the district attorney. The vast majority of felony prosecutions are started by the district attorney filing a felony complaint in county court, after a review of reports submitted by law enforcement officials. A district attorney might file a felony information in district court when the case is particularly important, such as a capital case. This way a district court judge will conduct the preliminary hearing. Grand jury indictments are discussed below. 4.3 ADVISEMENT HEARINGS The law requires that when a person is arrested, he or she be taken without unnecessary delay to appear before the nearest available county or district court judge. If the person has been arrested for a felony, it is often the case that the prosecution is still determining what, if any, charges should be filed. Therefore, a person arrested for a felony is advised that he or she is under investigation and a court date is set, usually within three days, for the filing of charges. If the person has been arrested pursuant to a warrant and charges have already been filed, then the person may request a preliminary hearing or a dispositional hearing as further described below. If the person has been arrested for a misdemeanor or petty offense, then charges have already been filed. In misdemeanor cases, many judges proceed immediately to arraignment, that is, the taking of a plea. A defendant who wishes to plead guilty may do so at this time. A defendant who wishes to engage in plea negotiations or to contest his case, may enter a plea of not guilty and ask that the case be set for a pre-trial conference, as further described below. 4.4 PRELIMINARY PROCEEDINGS

In felony cases, Colorado's rules of procedure and statutes require that either a preliminary hearing or a dispositional hearing be held prior to the formal arraignment of the defendant. These are usually held in county court. A preliminary hearing is a full-scale, adversarial hearing with witnesses before a judge to determine whether there is probable cause to believe the defendant committed the crime charged. The prosecution must only show probable cause, not enough evidence to support a conviction. The preliminary hearing is a screening device that gives the defendant an opportunity to challenge of the prosecution's evidence and weed out those cases that should not proceed to trial. A preliminary hearing also gives the attorneys the opportunity to engage in plea negotiations. A defendant charged by grand jury indictment is not entitled to a preliminary hearing. Preliminary hearings are available in all Class 1, 2 and 3 felonies, in certain more serious Class 4, 5 and 6 felonies, and in all other Class 4, 5 and 6 felonies if the person remains in custody. Preliminary hearings are discussed in more detail in Chapter 7.1. A dispositional hearing is scheduled in those less serious Class 4, 5 and 6 felonies when the defendant is not in custody. A dispositional hearing is not an adversarial hearing and does not involve the presentation of evidence or witnesses. It is an opportunity for the attorneys to discuss the case and determine whether it can be resolved through plea negotiation or should proceed to trial. Persons charged with misdemeanors are entitled to a pre-trial conference. A pretrial conference is like a dispositional hearing in that it is an opportunity for the lawyers to negotiate rather than an adversarial hearing in front of a judge. Boulder County now continues to monitor the process of a misdemeanor case through case management conferences, held after pre-trial conferences to review the status of misdemeanor cases. Preliminary hearings, dispositional hearings, pre-trial conferences and case management conferences are discussed in more detail in Chapter 7.1 and 7.2 4.6 ARRAIGNMENT Technically, arraignment is the entry of a plea. The plea may be a plea of guilty, not guilty, not guilty by reason of insanity or no contest. When a defendant pleads guilty, the court must make sure that the defendant is doing so voluntarily and intelligently, with a full understanding of the rights he or she is giving up and with a full understanding of any plea agreement that has been reached in the case. After accepting a guilty plea, the court either imposes a sentence immediately (the procedure in most misdemeanors and traffic cases) or sets the case for a sentencing hearing in the future (the procedure in most felony cases). If the case is continued for sentencing, the probation department may prepare a pre-sentence report. A plea of no contest, also known as a plea of nolo contendre, is a statement that the defendant is not contesting the issue of guilt or innocence and is confessing there is sufficient evidence to establish guilt. In Colorado, a defendant may only plead no contest with consent of the court. There is no difference for sentencing purposes, between a plea of no contest and a plea of guilty. Sometimes, defendants prefer a no contest plea because a guilty plea can have a binding effect against the defendant in civil proceedings. A plea of not guilty is a denial of the charges and is accompanied by a request for a trial. The trial can be a trial to the court or a jury trial. In Colorado, most criminal defendants have a right to a jury trial. As to the right to jury trials in municipal court, see C.M.C.R. 223(a). A defendant must file any applicable jury fee within the time limits imposed: within 10 days in municipal courts on all charges; in county court, within 10 days after arraignment unless crime charge has penalty for more than $500.00 fine or 6 months jail (in which case the defendant is entitled to a jury trial as a matter of right). If the client is not able to afford the jury fee, apply to the court for a waiver of the fee. A plea of not guilty formally puts the prosecution to its burden of proving the guilt of the defendant as to each and every element of the charge beyond a reasonable doubt. A plea of not guilty by reason of insanity is a plea of admission and avoidance. That is, this plea admits that the defendant committed the acts charged but seeks to excuse the defendant from criminal liability on the ground that the defendant was insane. In Colorado, insanity is defined as an inability to distinguish right from wrong at the time of the commission of the act. 4.7 PRETRIAL MOTIONS GENERAL A motion is an application to a judge requesting an order, ruling, direction or the like. Pretrial motions in criminal cases are designed to assist in the preparation of the defense and prosecution for trial by determining, for example, whether certain evidence should be admitted or excluded, or what procedures should be followed for the introduction of certain evidence. Some motions are purely legal and may be decided based only on legal argument. Other motions require the prosecution or the defendant to present evidence through witnesses or exhibits or stipulations, and then argue the application of the law to that evidence. An evidentiary hearing on a motion may also educate the judge and the lawyers about the strengths and weaknesses of a particular case. Such an education often serves to assist in the process of plea negotiation. The range and types of pretrial motions are limited only by the imagination. The controlling parameters are the particular needs of the case and the authority and procedures granted by the applicable statutes, procedural rules, and existing case law. Some of the more common pretrial motions in criminal cases are discussed in Chapter 7.3. Sometimes, the need for filing motions can be avoided by a stipulation between defense counsel and the prosecutor. The parties can stipulate, or agree, that a

matter is not at issue, or that a particular piece of evidence is not admissible. This allows parties to avoid researching and litigating an issue that is not contested. PROCEDURE Generally, pretrial motions must be in writing. The motion should refer to the applicable rule, statute, or case decision pursuant to which it is filed (if there is any), recite the factual grounds upon which it is based, and state the nature of the request. Motions may also be made orally in court, particularly during trial, although the use of oral motions is more limited in pre-trial proceedings. The original motion is filed with the court by filing the motion at the main clerk's office. If there is a particular rush, an attorney can file it directly with the appropriate division clerk as well. A copy is served on the prosecutor by delivery to his office (or by mailing). The clerk schedules a hearing, if requested. Under local county court practice, pretrial motions must be filed within 10 days of the pretrial conference, or within twenty days of the arraignment, if the motion requires a hearing prior to trial. The clerk will then set the next appearance for hearing on the motions rather than trial. At the hearing, the judge receives evidence, listens to arguments of counsel, makes a ruling on the merits, and enters an appropriate order. Generally, the party seeking the order has the burden to present evidence that persuades the court to grant the relief requested. This is done by presenting evidence (testimony, documents, etc.) and otherwise making a record. 4.8 OVERVIEW OF A CRIMINAL TRIAL The following is a brief overview of a county court jury trial. A more detailed version of a trial is in Chapter 12. The judge will call the case set for trial and handle any remaining pretrial matters before jury selection. The prospective jurors will be brought to the courtroom and the court and lawyers will examine the jurors in voir dire. The parties have the opportunity to excuse jurors using challenges for cause or peremptory challenges. Eventually, a jury will be selected. The prosecutor will give an opening statement to the jury. Defense counsel then has the option of giving an opening statement or reserving opening statement until the conclusion of the prosecution's case in chief. Once opening statements are concluded, the prosecution presents its case. The prosecutor will conduct a direct examination of each witness and introduce documentary or physical evidence. Defense counsel will conduct a cross examination of the prosecution witnesses, voir dire on exhibits, and make appropriate objections. When the prosecutor has presented the case in chief, he will rest. At this time, defense counsel must always make a motion for judgment of acquittal. Failure to make a motion for judgment of acquittal can eliminate the defendant's appellate rights. Defense counsel may then present a case. Keep in mind that a criminal defendant is never under any obligation to present a case. Defense counsel will conduct a direct examination of witnesses and introduce exhibits, and the prosecutor will have the opportunity to cross-examine the witnesses, voir dire exhibits and make objections. Once the defense case has been presented, the defense rests. The prosecution may then present rebuttal evidence. Rebuttal should be limited to evidence that rebuts issues raised in the defense case; it is not an opportunity for the prosecution to present its entire case again. Finally, the defense has an opportunity to present surrebuttal evidence. Surrebuttal is limited to evidence that rebuts evidence presented during the prosecution's rebuttal case. Rebuttal evidence is fairly common, but surrebuttal evidence is fairly rare. Once all of the evidence has been presented, defense counsel must renew the motion for judgment of acquittal in order to preserve appellate rights. Any other pending motions or rulings should also be cleared up at this time. The Court and counsel will then have a jury instruction conference. Instructions will be decided upon by the court, and counsel must make a record of objections and tender any rejected instructions. The instructions are then read to the jury. The prosecution will make a closing argument. Defense counsel then makes a closing argument. The prosecutor has an opportunity to present a rebuttal closing argument, and the case is then given to the jury. The jury deliberates, occasionally sending out questions, until they reach a verdict. The Court calls back all of the parties and reads the verdict. If the verdict is not guilty, the defendant is discharged; if the verdict is guilty, a sentencing date will be set. CHAPTER 5: SUBSTANTIVE CRIMINAL LAW AND PROCEDURE 5.1 SOURCES OF CRIMINAL LAW AND PROCEDURE Criminal law is the body of law establishing criminal offenses. Criminal procedure is the body of law establishing the methods by which alleged violations of the criminal law are prosecuted. Most state criminal law and procedure is contained in the Colorado Revised Statutes (C.R.S), the laws passed by the Colorado General Assembly. Further criminal procedure law may be found in the Colorado Rules of Criminal Procedure (Crim. P.) promulgated by the Colorado Supreme Court. Decisions interpreting these rules and statutes are issued by the Colorado Supreme Court and the Colorado Court of Appeals and are binding across the state. A particular district court may issue a decision interpreting the rules or statutes, but that decision is only binding on the lower courts of that district.

CHAPTER 5: SUBSTANTIVE CRIMINAL LAW AND PROCEDURE 5.2 CRIMINAL LAW - TITLE 18 Title 18 of the Colorado Revised Statutes contains virtually all of the criminal offenses. Title 18 - the Criminal Code - may be found in Volume 6 of the Colorado Revised Statutes. The Criminal Code is also available online through the home page of the state of Colorado, www.state.co.us. Going to the Legislature section from that home page, and then entering the line entitled "Colorado Revised Statutes" allows you to access all Colorado legislation either by name or by statute number. The direct address for this service, Colorado Statute Manager, is http://64.78.178.125/stat01/index.htm. These statutes set forth all of the crimes that can be prosecuted in Colorado state courts. The statutes are interpreted by lawyers and trial judges every day. Disagreements about the meaning of a statute are resolved through appeal. The decisions of the Colorado Court of Appeals and Colorado Supreme Court are binding on all lower courts. 5.3 CRIMINAL PROCEDURE - STATUTES AND RULES Criminal procedure - the process by which the justice system resolves criminal charges - is found in statutes, rules and court interpretations of those statues and rules. Title 16 of the Colorado Revised Statutes, titled Criminal Proceedings, is also in Volume 6. Title 16 may be accessed through the internet in the same manner as just described for accessing the Criminal Code. Just as with the statutes governing criminal law, judges and lawyers interpret the statutes governing criminal procedure, and disputes about the meaning are resolved through the appellate process. In addition to the statutes, the Colorado Supreme Court has promulgated the Colorado Rules of Criminal Procedure. These rules (Crim. P.) along with all other court rules, may be found in Volume 12 of the Colorado Revised Statutes. The Rules maybe accessed through the Colorado Statute Manager at http://64.78.178.125/stat01/index.htm. These statutes and rules govern the way that pretrial, trial and post-trial proceedings are conducted. For example, C.R.S. 16-4-101 and subsequent statutes govern how bail should be determined. C.R.S. 16-5- 201 sets out the requirements for a proper charging document. Crim. P. 16 governs what information must be exchanged between a prosecutor and defense counsel prior to trial. Crim. P. 24 governs the selection of jurors at trial. These are just a few examples; virtually every possible procedure is addressed by some rule or statute. Selected criminal procedures that occur frequently are discussed in Chapter 4, the Overview of Criminal Cases, Chapter 7, Selected Criminal Procedures and Chapter 14, Post- Conviction Proceedings. 5.9 DEFENSES IN CRIMINAL CASES Every person charged with a crime in the United States is presumed to be innocent of that charge. The flip side of this principle is that the prosecution in a criminal case has the burden of proof. Prosecutors must prove each element of a charge beyond a reasonable doubt. The presumption of innocence means that every person is innocent unless proven guilty. Therefore, by simply pleading not guilty, a person charged with a crime is demanding that the prosecution meet this burden of proof. A criminal defendant need not offer any evidence or make any argument; the defense can simply be to make the prosecution try and prove the case. A defendant may, however, prove to present evidence to the jury. The defendant may do this by crossexamining the witnesses that the prosecution presents, or by presenting his or her own witnesses, or by testifying. For example, a defendant in a speeding case might cross-examine the police officer who issued the ticket to see whether or not the officer had properly calibrated the radar gun, or the teller in a bank robber as to the certainty of her identification of the defendant as the robber. A defendant is always entitled to attack the sufficiency of the evidence offered by the prosecution. Additionally, however, a defendant may wish to present a specific defense. The Colorado Revised Statutes establish many specific defenses. Among these are alibi, choice of evils, consent, duress, insanity and impaired mental condition, intoxication, mistake of fact or law, and self-defense and defense of others. Some of these defenses are really just specific ways of attacking the sufficiency of the prosecutor's case. For example, the defense of alibi is a claim that the defendant was somewhere else at the time the crime was committed, and this is usually part and parcel of a claim that one or more witnesses have misidentified the defendant as the person who committed the offense. Other defenses admit that certain acts were committed but seek to justify those acts. For example, a claim of self-defense admits that the defendant caused bodily injury to another but claims that the actions of the defendant were justified by the principle that everyone is entitled to defend himself or herself from harm. Still other defenses admit that certain acts were committed but seek to excuse those acts. For example, the defense of insanity admits that the defendant committed the acts constituting the crime, but argues that the defendant was incapable of distinguishing right from wrong and should therefore be excused from punishment. The defense of alibi is, as noted, a claim that the defendant was somewhere else when the crime allegedly occurred. The Colorado Rules of Criminal Procedure require a defendant who wishes to present an alibi defense to inform the prosecution of that fact and of the names and addresses of the witnesses who will be called in support of the defense. This provision ensures that the prosecution is

not unfairly surprised by the presentation of this defense. After receiving the names of the witnesses, the prosecution must inform the defendant of any additional witnesses the prosecution intends to call to rebut the claim of alibi. See Colorado Rule of Criminal Procedure 16II(d). The defense of choice of evils can be offered by a defendant who is faced with an emergency situation and has to choose between two courses of action, each of which will cause some harm. Conduct that is otherwise criminal will be excused of the defendant chooses a course of action that causes less harm than would have been caused if the defendant had strictly followed the law. For example, a person who sees an assault in progress is probably justified in grabbing a cell phone from a passer-by to call the police. It is wrong to grab the phone, but it would be far worse to allow the assault to continue. A defendant can use this defense to justify actions that would otherwise be illegal. This defense has certain limits. The defense is set out in C.R.S. 18-1-702. The defense of consent is available in certain types of criminal cases. A person charged with sexual assault of an adult may present evidence and argument that the other party consented to the sexual contact. The defense of duress is the claim that another person was using, or threatening to use, unlawful force against the defendant and that a reasonable person in the defendant's shoes would have been overcome by that force. A simple claim that someone else persuaded or coerced the defendant is not sufficient to support this defense. See C.R.S. 18-1-708. Insanity and impaired mental condition are complicated defenses that are rarely used. In Colorado a person is insane if the person is suffering from a mental disease or defect that makes the person "incapable of distinguishing right from wrong." See C.R.S. 16-8-101. A defendant raising this defense admits committing the acts but claims that he or she was insane at the time of the commission of the acts. The defendant must present evidence of insanity. If a jury finds that the defendant was insane, the defendant is committed to the Colorado Mental Health Institute in Pueblo until such time as the people providing treatment and a jury believe that the defendant is capable of being safely released back into society. The definitions and procedures for determining sanity and release are set out in Article 8 of Title 16 of the Colorado Revised Statutes. The defense of impaired mental condition is related to the defense of insanity and is equally difficult to understand and equally rarely used. Impaired mental condition is defined in Colorado as a disease or defect of mind that is grossly abnormal and prevents a person from forming the culpable mental state that is an element of the offense charged. See C.R.S. 18-6- 102(2.7). As with insanity, a defendant must present evidence of an impaired mental condition, and a jury decides whether the claim has been proven. A person found not guilty by reason of impaired mental condition is committed to the state hospital in the same fashion as one found not guilty by reason of insanity. Intoxication that is so severe that it prevents a person from forming the required culpable mental state may be a defense to certain kinds of charges. The use of this defense is strictly limited because of the general belief that a person who chooses to become intoxicated should remain responsible for his or her actions. Some crimes specifically provide that intoxication is not a defense. The law often distinguishes between voluntary and involuntary intoxication. The defenses of mistake of fact and mistake of law are strictly limited by statute. See C.R.S. 18-1-504. A mistake of fact is not a defense unless the statute specifically provides that the defense is available, or the mistake supports some other specific defense such as choice of evils, or the mistake negates the existence of the required culpable mental state. A mistake of law is not a defense unless there is a specific statute, rule, regulation or official interpretation of the same that permits the conduct. Self-defense, which generally includes the defense of others, is based on the basic principle that each of us has the right to live and that we are entitled to defend ourselves if our life or health, or the life or health of others, is illegally threatened. The various forms of this defense are set out in C.R.S. 18-1-703 and the six following statutes. Generally, the use of physical force against another person is justified in order to defend against the imminent use of unlawful physical force against that person or another. The amount of force used to repel the unlawful force must be reasonable. Deadly force may not be used unless there is a danger of death or serious bodily injury. The statutes provide for special rules depending on the relationship of the parties (e.g., a parent disciplining a child) or other facts (e.g., a person defending his or her own home). 6.7 UNLAWFUL SEXUAL BEHAVIOR The various offenses relating to unlawful sexual behavior as well as certain procedures and evidence rules are contained in part 4 of article 3 of Title 18. The Colorado legislature has significantly altered the prosecution and punishment of sex offenders in recently years and will likely to continue to do so in the future. C.R.S. 18-3-402 prohibits sexual assault. The statute provides that a person commits sexual assault if the person knowingly inflicts sexual intrusion or penetration on a victim if a) the person causes the victim to submit by means of sufficient consequence reasonably calculated to cause submission against the victim's will or b) the person knows that the victim is incapable of appraising what the perpetrator is doing or c) the person knows that the victim erroneously believes the person is the victim's spouse or d) at the time of the commission of the act the victim is less than 15 and the person is at least 4 years older than the victim and is not the spouse of the victim or e) at the time of the commission of the act the victim is at least 15 but less than

17 or f) the person has authority over the victim and uses his position of authority to coerce the victim or g) the person while purporting to offer some medical service engages in some sort of treatment or examination for some other reason than a bona fide medical purpose. The statute goes on to provide various levels of punishment. Section e is a class one misdemeanor. Sexual assault is a class three felony if any one or more of the following circumstances exist, a) the person causes submission of the victim by the actual application of physical force or b) the person causes submission of the victim by threat of imminent death or serious bodily injury or c) the person causes submission by threatening retaliation that the victim reasonably believes the person can execute or d) the person has substantially impaired the victim's power to understand or control the person's conduct by using drugs or other means or e) the victim is physically helpless and the person knows the victim is physically helpless and has not consented or f) the sexual assault of the person is physically aided or abetted by one or more other persons or g) bodily injury, or by a deadly weapon or a simulate deadly weapon and uses that to cause the submission of the victim. Sexual intrusion is defined by any intrusion, however slight, by any object or any part of person's body except the mouth, tongue or penis into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purpose of simple arousal, gratification, or abuse. Sexual penetration means sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse. Consent means cooperation in the acts or attitudes pursuant to the exercise of free will and with knowledge of the nature of the act. One is a position of trust includes parents, anyone acting in the place of parents and charged with the parent's rights and duties, anyone charged with the health, education and welfare of and supervision of a child. Unlawful sexual contact is committed when a person knowingly subjects the victim to any sexual contact if a) the person knows the victim does not consent or b) the person knows the victim is incapable of appraising what the person is doing or c) the victim is physically helpless and the person knows that and that the victim has not consented, d) the person has substantially impaired the victim's power to control the person's behavior by using alcohol or drugs, e) the victim is in custody, or in a hospital, the person has supervisory or disciplinary authority and uses his position of authority to coerce the victim to submit or f) the person engages in treatment or examination of the victim for other than bona fide medical purposes. This statute, C.R.S. 18-03-404 also makes it illegal for any person to induce or coerce a child to expose the child's intimate parts or engage in any sexual conduct, contact or sexual intrusion for the purpose of the person's own sexual gratification. Finally the statute provides that a person commits unlawful sexual contact if the person knowingly observes or takes a photograph of a person's intimate parts without that person's consent in a situation where the person has a reasonable expectation of privacy, and the observation or the photograph is for the observer's own sexual gratification. Sexual contact is the knowing touching of the victim's intimate parts by the actor or the actor's intimate parts by the victim or the knowing touching of the clothing covering the immediate area of the victims' or actor's intimate parts if that contact is for the purpose of sexual arousal, gratification or abuse. Intimate parts is defined as the external genitalia or the perineum or the anus or the buttocks or the pubis or the breast of any person. Unlawful sexual contact is a class 1 misdemeanor and is a class 4 felony if the defendant causes the victim to submit by the use of force. C.R.S. 18-3-407 limits the ability of attorneys to go into the sexual history of a victim or any other witness. The statute provides that evidence about specific incidences or prior or subsequent sexual conduct or opinion evidence of sexual conduct or reputation evidence about sexual conduct shall be presumed to be irrelevant. Such evidence, however, may be admitted if it is evidence of the victim's or witnesses' prior or subsequent sexual conduct with the defendant or if it is evidence of specific incidences of sexual activity showing the source or origin of semen, pregnancy, or disease to show that the act charged was committed by someone other than the defendant. The statute, commonly known as, the rape shield statute, goes on to provide that the court shall decide prior to trial whether or not any such evidence should be admitted in front of the jury. A lawyer seeking to admit such evidence must file a written motion at least one month prior to the trial accompanied by an affidavit that sets forth an offer of proof as to what evidence will be offered and what the purpose of the evidence is. C.R.S. 18-3- 408 instructs trial courts to instruct juries to not allow gender bias or any bias on gender to influence their decision in a sexual assault case. The statute also prohibits trial courts from giving an instruction that the testimony of the victim of a sexual assault should be examined with caution because of the nature of the charge and that the charge is easy to make but difficult to defend. Section 18-3-409 provides that it is not a defense to any of the charges described in part 4, that the defendant and the victim are married unless the specific statute specifically excludes a spouse. C.R.S. 18-3-410 provides that none of the offenses set forth in this part 4 apply to any bona fide medical examination as long as they are consistent with reasonable medical practices. In 1998, the legislature passed C.R.S. 18-3-412.5, setting forth the duty to register on sex offenders. Sex offenders are required to register with probation officers or parole officers or other appropriate law enforcement officials. Whenever they move, whenever they are released from jail or from community corrections settings, whenever they change their name, and annually thereafter.