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    Legal Limitations On Governmental Power – Colorado Criminal Law

    by Colorado Criminal Lawyer – H. Michael Steinberg

    Colorado – as in most states and the federal government  – has in place built in criminal defenses to the abuse of governmental power.  What follows is a list of the some of the most fundamentals of those rights accorded to individuals by the law.  

    The Adversary System

    — A limitation on Criminal Law that controls the establishment of guilt. It guarantees the average citizen the right to have a prosecutor and a defense counsel oppose each other in a trial if they are unwilling or unable to dispose of the case prior to trial. The prosecution also has the burden of proof, initially.

    Bill of Attainder

    — This refers to any legislative act which inflicts punishment without a criminal trial. It has been prohibited since 1867 and its original purpose was to eliminate lynching. It’s modern use is most closely related to government regulation of certain professions and the privileges of executive immunity. For example, it prohibits loyalty oaths to practice law, and allows Presidents to refuse to turn over private documents to special prosecutors.

    The Bill of Rights

    — The first ten amendments to the Constitution limit the ability of government to define certain acts as criminal, and also have important things to say about the enforcement of Criminal Law.

    Corpus Delicti

    — This Latin phrase meaning “body of the crime” means that the prosecution must prove ALL elements of a crime. To do this, the prosecution must consult the specific statute of the state that has jurisdiction. Although there are presumptions that the prosecution will also prove the identity of the accused and be able to produce a victim, those factors are NOT technically part of the concept of Corpus Delicti. For example, the corpus delicti of burglary consists of six elements:

    (1) breaking

    (2) and entering

    (3) the dwelling

    (4) of another

    (5) with the intent to commit a crime therein.

    In the law of homicide, however, one of the elements is (1) the death, and in this case, the ability to find or account for the body is part of the corpus delicti of homicide.

    Corroboration of Confession

    — The general rule is that a conviction cannot rest alone upon an accused’s out of court confession. Admission of the confession is only permitted if proof of Corpus Delicti will be presented later.

    Cruel and Unusual Punishment

    — This is an 8th Amendment protection where the words “cruel” and “unusual” have never really been adequately defined. A piecemeal approach has been followed in which the distinction is made between “ancient” and “modern” forms of punishment with the assumption being that ancient methods are unconstitutional and most modern methods are upheld. Recent issues have involved the question of proportionality, where habitual offenders with prior records receive stiffer sentences for the same crime as those committed without prior records.

    Double Jeopardy

    — The same sovereign entity cannot prosecute the same individual twice for the same act or the same crime. This gets at the matter of Jurisdiction, and what is theoretically possible and what is done in practice. As a practical matter, both federal and state governments do NOT prosecute the same person, although they theoretically could, unless there are some dissimilarities to be found in the nature of the crime OR the first jurisdiction to prosecute does so unsuccessfully.

    Due Process of Law

    — A phrase found in the 5th & 14th Amendment as well as every state constitution which forbids the government from taking life, liberty, or property without due process of law. At the fundamental level, due process ensures at a minimum the right to fair notice and a fair hearing. On other levels, it guarantees certain inalienable rights and freedoms. On a practical level, it is usually determined by various balancing tests that pit the needs of the individual against the needs of the government. The implied right to privacy also prohibits making crimes out of behavior protected by the right of privacy.

    Equal Protection of Law

    — The government cannot make a law applicable to only one sex, race, or religion or treat one group of citizens differently from other groups without a rational reason. This idea is related to the notion of Due Process at the level of fundamental freedom, tying together fairness and inalienable right. The principle is that all persons must be treated alike, not only in law enactment but in law enforcement. Historically, it was used to strike down miscegenation laws, and contemporary examples would include the “powder-rock” cocaine controversy for blacks and “sexual harassment” statutes for women.

    Ex Post Facto Laws

    — Both the federal and state governments are prohibited from altering the law in any way so as to be detrimental to an accused person retroactively. This can occur in many ways:

    (1) the legislature passes a new law, and someone is prosecuted for committing the act before the law was enacted (unless there is a “savings” clause in the statute);

    (2) the legislature increases the penalties for an existing law, and someone is punished under the new penalty when they committed the act while the old penalty was in effect;

    (3) the legislature decreases the burden of proof, or in any way makes it easier for the prosecution to convict, persons who committed crime under the old system must be tried under the old rules. (does not apply to evidentiary rule changes.);


    (4) the legislature adjusts the amount of good time credit or eligibility for parole to alleviate prison overcrowding, and then restores the old formula once the overcrowding problem has been solved.


    — The court system is organized by this, and there are three different types of jurisdiction: person, place, and type of crime. Different courts are limited by jurisdiction in what cases can be brought before them.

    Presumption of Innocence

    — All the presumptions of law independent of evidence are in favor of the accused, and every person is presumed innocent until proven guilty. This concept is closely related to the reasonable doubt standard and the notion of moral certainty. Reasonable doubt is the last presumption of innocence in criminal procedure, and actually it’s an “entitlement” to the benefit of acquittal. Moral certainty is a term for the judgment call that remains to be made after reasonable doubt has been eliminated.

    Status Offenses

    — The law cannot make being a certain kind of person a crime. This determination is made through analogy with a chronic medical condition: the law cannot criminalize having a “common cold”. Most cases of chronic alcoholism don’t qualify, but drug laws criminalizing the status of being an “addict” do. In practice, the law has many kinds of status offenses. (Discussion on medical analogy)

    Statute of Limitations

    — This places a time limit on the period from commission of the offense to filing of the criminal charges. The Supreme Court has decided that it only applies when the suspect is in custody. States like Colorado each have specific statutes of limitations, and there is widespread variation, but in general, misdemeanors usually have one year, and felonies longer. There are two ways to extend the statute of limitations:

    (1) an arrest warrant extends it indefinitely or for a specified period of time;


    (2) tolling the statute of limitations by not counting the period of time equal to the accused’s absence from the jurisdiction

    Colorado Statute of Limitations

    Void-for-Overbreadth Doctrine

    — This makes a statute or ordinance unconstitutional if the manner in which it is written has an unnecessarily broad sweep and invades the area of protected freedoms. Overbroadness occurs when a prohibition overlaps on a prescription, that is, citizens steer clear of good behavior because they are afraid of accidentally committing criminal behavior. When 1st Amendment issues are at stake (an area guarded closely to prevent any crimes being made out of free speech), the courts must consider this doctrine in conjunction with the void for vagueness doctrine, but in many cases, the two doctrines are applied separately. Ordinances that prohibit panhandling, for example, are overbroad if they describe the offense as “annoying” passerbys because what is annoying to some people does not annoy others.

    Void-for-Vagueness Doctrine

    — This requires that legislatures use clear and precise language so that people of common intelligence do not have to guess at the meaning of a law or its application. If the language of a statute or ordinance is vague, it is unconstitutional, and the law must be struck down. Sometimes, the doctrine is applied just to the words, like “ill repute” or “lewd”, and at other times, whether the law entraps citizens or is difficult for police to enforce is considered. A modern example would be the “racial profiling” controversy.

    This doctrine, so eloquently put by Justice Holmes (in McBoyle v. U.S. 1931) in the opening quote at the start of this lecture, has ancient origins, in the form of maxims, such as the maxim of uncertain law, in the form of legal history, that no law comes down to us unrevised from the Romans, and there are numerous cases in American jurisprudence that lay claim to establishing the doctrine.

    Frequently cited formulations include:

    “Any statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application” (Connally v. General Construction Co. 1926)

    “Any statute, on its face, which is repugnant to the due process clause, [where] specification of details of the offense would not serve to validate it…No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids” (Lanzetta v. New Jersey 1939)

    “To have available, through a sufficiently precise statute, information regarding the standard of criminality before being charged with the alleged commission of a crime” (Watkins v. U.S. 1957)

    “A state may not issue commands to its citizens in language so vague and undefined as to afford no fair warning of what conduct might transgress them” (Raley v. Ohio 1959)

    It is not enough to challenge a law on the basis of imprecise words alone. A number of tests have been developed to tell when such attacks will be successful or not:

    Would a layman, or common person, know that the conduct in question is so wrong that it is likely to carry a criminal penalty? This is the most common test, and one in which judges must resort to an understanding of public opinion, culture, and custom.

    Is the statute capable of more precise language, without asking the legislature to do the impossible? This is sometimes known as the conjecture test, which looks at whether lawmakers seemed to leave things to the imagination.

    Is the statute more uncertain than other statutes, or is it part of a whole group of unclear statutes? This test gets at the bulk of criminal law in a certain area, and it is indeed possible for judges, collectively, to have a problem with some whole specific area of law.


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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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