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    FAQ: Colorado’s Rules of Discovery In Criminal Cases


    Introduction – there are few more critically important procedures in criminal cases than the process known as ” making discovery.”  In Colorado – Rule 16 of the Colorado Rules of Criminal Procedure governs this important stage of the defense of Colorado Criminal Cases.

    Discovery is the process by which the prosecutor, court investigator, judge and defendant share information. The purpose of discovery is to eliminate “trial by surprise,” increase efficiency in court proceedings by focusing the trial on the factual disputes between parties, and produce fairer and more accurate outcomes.

    Opponents have argued that increased discovery provides the material and the incentive for defendants to custom tailor their testimony to the prosecution’s evidence and would give defendants the opportunity to harass potential witnesses in advance of trial.

    Colorado  Prosecution’s Basic Discovery Obligations

    Exculpatory Material- Due Process requires that a prosecutor disclose material, exculpatory evidence that would either prove the defendant’s innocence, mitigate the level of culpability, or otherwise favorably impact the defendant’s case. In the United States, this material is sometimes called Brady Material

    Brady Material is any evidence which, if believed, would be favorable to the defendant.

    It includes at least three types of evidence

    Exculpatory Evidence – Evidence which would tend to make an affirmative demonstration of the defendant’s innocence or negate evidence of guilt.

    Mitigation Evidence – Evidence which would reduce the degree of guilt from one class of crimes to another (for instance, from first degree murder to voluntary manslaughter) or would in some other way reduce the defendant’s sentence.

    Impeachment Evidence – Evidence that diminishes the credibility of a prosecution or defense witness. This includes any deals made between the prosecutor and a witness.

    Materiality under Brady

    In United States v. Bagley  the Supreme Court concluded that a defendant’s conviction should be reversed if the prosecutor failed to turn over “Brady Material” and there is a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different.” In 1999, the Supreme Court summarized the Bagley Rule as having three elements:

    1. The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching

    2. That evidence must have been suppressed by the State, either willfully or inadvertently

    3. Prejudice must have ensued.

    Prosecutor’s Duty under Brady

    Because the prosecutor represents the entire government, she has a duty to learn of any favorable evidence known to other government agencies. Once all this material has been collected, the prosecutor must make a determination as to whether any piece of evidence alone, or in conjunction with other evidence, requires disclosure.

    Brady Material and Police Misconduct

    One issue which still appears unresolved is whether the prosecution has a duty to disclose prior police misconduct as “Brady Material.” Proponents of this kind of discovery contend that if the defense raises police misconduct as a defense to a crime, prior bad conduct of the officer becomes material and exculpatory as impeachment evidence.

    Opponents contend that permitting extensive discovery from the police officer’s personal file would violate the officer’s right to privacy and distract the court from the determination of guilt or innocence by turning the proceedings into a test of the officer’s credibility.

    Many states, such as Colorado,  permit limited “in camera” review of an officer’s private personal file. The judge will then make a determination as to whether any evidence inside is material and exculpatory. When the evidence is released, it is sometimes done under a protective order.

    Witness Lists – The prosecution may be required to disclose a list with the names and addresses of potential witnesses at trial.

    Witness Statements – The prosecution may be required to disclose any written or recorded witness statements collected during its investigation.

    Defendant’s Statements – In Colorado the prosecution is required to disclose any statements by the defendant, written or oral, regardless of whether they are exculpatory in nature.

    Criminal Records- Prosecution may be required to disclose the defendant’s own criminal record.

    Scientific Reports – Prosecution may be required to disclose scientific reports produced by experts, regardless of whether those reports are in fact going to be used at trial.


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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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    8400 East Prentice Ave, Penthouse 1500
    Greenwood Village, Colorado, 80111
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