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What Does Making “Discovery” Mean? The Term Is Based In Both Preparation and InvestigationMaking discovery under Colorado Law– is the procedure followed by the state of Colorado prosecutors to provide a factual basis of to the crimes charged to the defendant or their lawyer. It is controlled by Rule 16 (below) of the Colorado Rules of Criminal Procedure.
Typical “discoverable materials” are police reports, witness statements, criminal history reports, lab reports, photos, interviews, and any other information bearing on the regarding the guilt- and even more importantly -the innocence – of the defendant.
The defense has the constitutional and statutory right to ALL ” discoverable material” such as supplemental reports, lab results, interviews, and any other inculpatory or exculpatory materials generated by the prosecution within a reasonable time after they are received by the DA.
Making Discovery Under Colorado Law – How Do You Obtain or “Make” Discovery The Discovery RequestIn most cities and counties in Colorado either the defense lawyer representing the defendant will make discovery – or – if the defendant is unrepresented or “pro se” – that person can make discovery under the same rule.
Once a defendant has retained or had appointed an attorney – most Colorado district attorney will ONLY make discovery to that lawyer or law firm.
The Criminal Justice Records RequestIn addition to making discovery as a party to a criminal case – individuals who have an interest in a Colorado criminal case can use Colorado’s open records laws. These laws are composed of two different laws: the Colorado Open Records Act (“CORA”) and the Colorado Criminal Justice Records Act (“CCJRA”).
This article addresses use of the CCJRA which governs the disclosure of “criminal justice records—that is records that are created and kept by law enforcement agencies like Colorado police departments, county sheriffs, and criminal courts. CORA is used for almost every other type of record.
If you seek discovery in a Colorado Criminal Case – you must file Criminal Justice Records Request and you must complete a Criminal Justice Records Request Form and submit it to the discovery department of the relevant district attorney’s office -and you must identify the reasons you are requesting the records. Your explanation may be helpful and, in some cases, essential to the DA’s determination of whether release of the requested records is appropriate under the law.
Confidentiality and Colorado Sex Assault – Sex Offender Criminal CasesIf the “criminal justice records” you seek involve allegations of sexual assault allegations, the CJRA requires that identifying information about the victim be redacted at your expense prior to release of the records. Also – at times – if the records involves a pending prosecution – the DA may refuse to release any information until there is a disposition of the criminal case.
Why Making Discovery From The District Attorney Is The Best Route To A Complete InvestigationAfter you have been arrested and released – you will – of course – want to have all of the evidence that law enforcement believes supports the charges against you. Your first impulse will be to go the police department for those records – however – unless your first appearance is many weeks if not months away – your best source is the more comprehensive file which is held by the district attorney.
If a great deal of time has yet to pass before that first court date – the police or sheriff’s department may be the best source for the first wave of information..
Law enforcement officials may object to the release of the file reports on grounds that the police reports are exempted under Colorado’s public records law pursuant to the “ open criminal investigation.” They may or may not make this objection – and if it occurs – and there is no further investigation being conducted by the police, you may appeal that decision in a court of law… again – common sense must prevail at this point and the exercise of some patience – until the file can be obtained from the DA – may be the best move.
“Making Discovery Strategically ” Tactical Discovery in Colorado Criminal CasesThe first questions you may ask is – what is included in discovery?
Some basis discovery disclosures are:
- The prosecutor’s witness list of witnesses with information regarding the crime.
- Copies of the police reports.
- Information whether a witnesses gave a statement, including whether there is a written or recorded statement.
- Whether the accused made a statement.
- Whether a co-defendant made a statement.
- Whether there is any grand jury testimony.
- Whether there was any search and seizure.
- Whether a confidential informant was involved in the arrest or criminal investigation.
- Whether there was any electronic surveillance conducted by law enforcement.
- Whether there is an expert being used by the prosecutor and a copy of his credentials and his report.
- A list of the prosecutor’s exhibits to be used at trial.
- Whether there is any DNA evidence.
- Whether there is any evidence that negates the guilt of the arrested person (Brady evidence).
Giglio v. United States – is a well known federal case that stands for the proposition that the prosecution has the obligation to share exculpatory information with the defendant to include information concerning the credibility of government witnesses.
In that case the US Supreme Court said. “When the reliability of a given witness may be determinative of guilt or innocence,” the Court wrote, “nondisclosure of evidence affecting credibility falls within this general rule.”
Under Brady v. Maryland and Giglio v. United States, federal prosecutors are required to disclose information that would tend to exculpate (tend toward innocence) criminal defendants, or that would tend to impeach the character or testimony of a government witness .
Discovery involving prosecution witnesses is often limited to their observations and their oral and written statements. An experienced Colorado criminal defense lawyer will seek much more than that – among those items sought is evidence related to the following:
- Prior inconsistent statements (possibly including inconsistent attorney proffers,
- Statements or reports reflecting witness statement variations,
- Benefits provided to witnesses including:
- Dropped or reduced charges,
- Immunity for their testimony,
- Expectations of downward departures or motions for reduction of sentence,
- Assistance in a state or local criminal proceeding,
- Considerations regarding forfeiture of assets,
- Stays of deportation or other immigration status considerations,
- S-Visas,
- Monetary benefits,
- Non-prosecution agreements,
- Letters to other law enforcement officials (e.g. state prosecutors, parole boards) setting forth the extent of a witness’s assistance or making substantive recommendations on the witness’s behalf,
- Relocation assistance,
- Consideration or benefits to culpable or at risk third-parties,
- Other known conditions that could affect the witness’s bias such as:
- Animosity toward defendant,
- Animosity toward a group of which the defendant is a member or with which the defendant is affiliated,
- Relationship with victim,
- Known but uncharged criminal conduct (that may provide an incentive to curry favor with a prosecutor),
- Prior acts under Rule 608
- Prior convictions under Rule 609
- Known substance abuse or mental health issues or other issues that could affect the witness’s ability to perceive and recall events
If the prosecution refuses to provide the discovery the defense has demanded – a prosecutor may not be able to use it against you at the criminal jury trial. But that is not guaranteed which event supports as specific a discovery demand as an attorney can draft – especially in complex felony criminal cases.
An aggressive Colorado will know – after reviewing the discovery in a case – whether a motion to suppress evidence makes sense in your criminal case. If the police reports indicate there I no “ there – there “there may also be legal grounds to file a motion to dismiss the criminal charges.
Colorado Discovery Law The Disclosure of Confidential Informants – Especially In Colorado Drug Crime Cases
A judge is required under Colorado law – to rule on a motion for disclosure of the names of confidential informants within a reasonable time. The trial court cannot delay ruling on a defendant’s motion for disclosure of the names of confidential informants even if the parties agree.
A judge must rule on a defendant’s disclosure motion so that the basis for the investigatory detention can be considered in light of the totality of the circumstances.
Making Discovery Under Colorado Law – Rule 16 Of The Colorado Rules Of Criminal Procedure Rule 16. Discovery and Procedure Before TrialDefinitions.
(1) “Defense”, as used in this rule, means an attorney for the defendant, or a defendant if pro se.
Part I. Disclosure to the Defense(a) Prosecutor’s Obligations.
(1) The prosecuting attorney shall make available to the defense the following material and information which is within the possession or control of the prosecuting attorney, and shall provide duplicates upon request, and concerning the pending case:
(I) Police, arrest and crime or offense reports, including statements of all witnesses;
(II) With consent of the judge supervising the grand jury, all transcripts of grand jury testimony and all tangible evidence presented to the grand jury in connection with the case;
(III) Any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons;
(IV) Any books, papers, documents, photographs or tangible objects held as evidence in connection with the case;
(V) Any record of prior criminal convictions of the accused, any codefendant or any person the prosecuting attorney intends to call as a witness in the case;
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(VI) All tapes and transcripts of any electronic surveillance (including wiretaps) of conversations involving the accused, any codefendant or witness in the case;
(VII) A written list of the names and addresses of the witnesses then known to the district attorney whom he or she intends to call at trial;
(VIII) Any written or recorded statements of the accused or of a codefendant, and the substance of any oral statements made to the police or prosecution by the accused or by a codefendant, if the trial is to be a joint one.
(2) The prosecuting attorney shall disclose to the defense any material or information within his or her possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefor.
(3) The prosecuting attorney’s obligations under this section (a) extend to material and information in the possession or control of members of his or her staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report, or with reference to the particular case have reported, to his or her office.
(b) Prosecutor’s Performance of Obligations.
(1) The prosecuting attorney shall perform his or her obligations under subsections (a)(1)(I), (IV), (VII), and with regard to written or recorded statements of the accused or a codefendant under (VIII) as soon as practicable but not later than 21 calendar days after the defendant’s first appearance at the time of or following the filing of charges, except that portions of such reports claimed to be nondiscoverable may be withheld pending a determination and ruling of the court under Part III but the defense must be notified in writing that information has not been disclosed.
(2) The prosecuting attorney shall request court consent and provide the defense with all grand jury transcripts made in connection with the case as soon as practicable but not later than 35 days after indictment.
(3) The prosecuting attorney shall perform all other obligations under subsection (a)(1) as soon as practicable but not later than 35 days before trial.
(4) The prosecuting attorney shall ensure that a flow of information is maintained between the various investigative personnel and his or her office sufficient to place within his or her possession or control all material and information relevant to the accused and the offense charged.
(c) Material Held by Other Governmental Personnel.
(1) Upon the defense’s request and designation of material or information which would be discoverable if in the possession or control of the prosecuting attorney and which is in the possession or control of other governmental personnel, the prosecuting attorney shall use diligent good faith efforts to cause such material to be made available to the defense.
(2) The court shall issue suitable subpoenas or orders to cause such material to be made available to the defense, if the prosecuting attorney’s efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court.
(d) Discretionary Disclosures.
(1) The court in its discretion may, upon motion, require disclosure to the defense of relevant material and information not covered by Parts I (a), (b), and (c), upon a showing by the defense that the request is reasonable.
(2) The court may deny disclosure authorized by this section if it finds that there is substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment, resulting from such disclosure, which outweighs any usefulness of the disclosure to the defense.
(3) Where the interests of justice would be served, the court may order the prosecution to disclose the underlying facts or data supporting the opinion in that particular case of an expert endorsed as a witness. If a report has not been prepared by that expert to aid in compliance with other discovery obligations of this rule, the court may order the party calling that expert to provide a written summary of the testimony describing the witness’s opinions and the bases and reasons therefor, including results of physical or mental examination and of scientific tests, experiments, or comparisons. The intent of this section is to allow the defense sufficient meaningful information to conduct effective cross- examination under CRE 705.
(e) Matters not Subject to Disclosure.
(1) Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting attorney or members of his legal staff.
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(2) Informants. Disclosure shall not be required of an informant’s identity where his or her identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.
Part II. Disclosure to Prosecution(a) The Person of the Accused.
(1) Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, upon request of the prosecuting attorney, the court may require the accused to give any nontestimonial identification as provided in Rule 41.1(h)(2).
(2) Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the prosecuting attorney to the accused and his or her counsel. Provision may be made for appearance for such purposes in an order admitting the accused to bail or providing for his or her release.
(b) Medical and Scientific Reports.
(1) Subject to constitutional limitations, the trial court may require that the prosecuting attorney be informed of and permitted to inspect and copy or photograph any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.
(2) Subject to constitutional limitations, and where the interests of justice would be served, the court may order the defense to disclose the underlying facts or data supporting the opinion in that particular case of an expert endorsed as a witness. If a report has not been prepared by that expert to aid in compliance with other discovery obligations of this rule, the court may order the party calling that expert to provide a written summary of the testimony describing the witness’s opinions and the bases and reasons therefor, including results of physical or mental examinations and of scientific tests, experiments, or comparisons. The intent of this section is to allow the prosecution sufficient meaningful information to conduct effective cross-examination under CRE 705.
(c) Nature of Defense.
Subject to constitutional limitations, the defense shall disclose to the prosecution the nature of any defense, other than alibi, which the defense intends to use at trial. The defense shall also disclose the names and addresses of persons whom the defense intends to call as witnesses at trial. At the entry of the not guilty plea, the court shall set a deadline for such disclosure. In no case shall such disclosure be less than 35 days before trial for a felony trial, or 7 days before trial for a non-felony trial, except for good cause shown. Upon receipt of the information required by this subsection (c), the prosecuting attorney shall notify the defense of any additional witnesses which the prosecution intends to call to rebut such defense within a reasonable time after their identity becomes known.
For the balance of the statute – not printed – click here RULE 16 – COLORADO DISCOVERY RULES
….(b) Time Schedule.
(1) In the event the defendant enters a plea of not guilty or not guilty by reason of insanity, or asserts the defense of impaired mental condition, the court shall set a deadline for such disclosure to the prosecuting attorney of those items referred to in Parts II (b)(1) and (c) herein, subject to objections which may be raised by the defense within that period pursuant to Part III (d) of this rule. In no case shall such disclosure be less than 35 days before trial for a felony trial, or 7 days before trial for a non-felony trial, except for good cause shown.
(2) If either the prosecuting attorney or the defense claims that discoverable material under this rule was not furnished, was incomplete, was illegible or otherwise failed to satisfy this rule, or if claim is made that discretionary disclosures pursuant to Part I (d) should be made, the prosecuting attorney or the defense may file a motion concerning these matters and the motion shall be promptly heard by the court.
(3) For good cause, the court may, on motion of either party or its own motion, alter the time for all matters relating to discovery under this rule.
(c) Cost and Location of Discovery.
The cost of duplicating any material discoverable under this rule shall be borne by the party receiving the material, based on the actual cost of copying the same to the party furnishing the material. Copies of any discovery provided to a defendant by court appointed counsel shall be paid for by the defendant. The place of discovery and furnishing of materials shall be at the office of the party furnishing it, or at a mutually agreeable location.
Making Discovery Under Colorado LawThe Law Offices of H. Michael Steinberg, in Denver, Colorado, provides criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.
H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer who will provide you with a free initial case consultation to evaluate your legal issues and answer your questions with an honest assessment of your options.
Helping Clients To Make Informed Decisions In Colorado Criminal Defense MattersH. Michael Steinberg provides solid criminal defenses for clients throughout the Front Range of Colorado on issues such as ….Making Discovery Under Colorado Law.