New and Noteworthy
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People in the Interest of E.G., — P.3d —, No. 15SC298, 2016 WL 1567237 (Colo. Apr. 18, 2016), and People v. Chavez, — P.3d —, No. 15SA165, 2016 WL 1567235 (Colo. Apr. 18, 2016).
In the Chavez case, the National Crime Victim Law Institute joined The Rocky Mountain Victim Law Center, who represented the victim in the case, in filing an amicus brief in the Colorado Supreme Court. Co-amici argued that forcing sexual assault victims to open their homes to criminal defendants whenever a defendant merely asserts the “need” for pretrial access without requiring the defendant to make a particularized showing that denial of access would prevent preparation of an adequate defense, violates victims’ constitutional rights, including the right to privacy, and further chills sexual assault victims from reporting crimes.
People in the Interest of E.G., — P.3d —, No. 15SC298, 2016 WL 1567237 (Colo. Apr. 18, 2016).
Defendant was convicted of sexual assault of a child and appealed, arguing that the trial court erred in denying his pretrial motion requesting access to his grandmother’s basement where the crime occurred for investigation purposes. The trial court denied the motion on the basis that it did not have authority to order the access. The court of appeals disagreed that the trial court did not have authority, but upheld the denial based on the fact that defendant failed to demonstrate that inspection of the crime scene was necessary to his defense. On the government’s petition for certiorari, the Colorado Supreme Court concluded that a trial court does not have authority to provide defendant access to a third party’s home for pretrial discovery. The court reasoned that Colorado courts lack power to grant criminal discovery outside of what is authorized in statute or rule. Therefore the court examined Colorado’s Criminal Procedure Rule 16 and concluded that it only ensures that a defendant has access to material and information in the government’s possession or control; which does not include access to private third party’s home. Similarly, the court noted that Criminal Procedure Rule 17, the compulsory process rule, covers the production, in court, of certain items and also failed to provide authority to order investigation of a non-party’s home. The court then analyzed whether defendant had a right under Due Process or the Confrontation Clause that would authorize a court to order access to the home and found none. Citing to the propositions that there is no general constitutional right to pretrial discovery in criminal cases, and that the United States Supreme Court’s decisions only entitle defendant to access evidence and witnesses that are in the government’s possession or control, the court held that due process does not provide the right to use court-provided investigative tools. Finally, the court held that the Confrontation Clause does not apply in this situation because it is an unrelated trial right. The court concluded that “neither a criminal defendant, nor anyone else, including the prosecuting attorney, has a constitutional right to force a third party to open her private home for an investigation.” As such, the court affirmed the appellate court’s judgment on alternate grounds.
People v. Chavez, — P.3d —, No. 15SA165, 2016 WL 1567235 (Colo. Apr. 18, 2016).
Defendant was charged with sexual assault and requested a court order allowing him access to the victim’s home where the assault occurred for investigation purposes. The trial court granted the motion, and the court of appeals upheld the trial court’s finding that defendant had shown that access to the home was “relevant, material, and necessary” to his defense. Relying on the reasoning put forth in People in the Interest of E.G., a casedecided the same day, the Colorado Supreme Court reversed the appellate court’s decision, holding that the trial court lacked statutory or constitutional authority to grant defendant access to the victim’s home for investigative purposes. The court made the rule absolute and remanded for further proceedings consistent with the opinion.
State ex rel. Montgomery v. Padilla, — P.3d —, Nos. 1-CA-SA 16-0017 & 1-CA-SA 16-0027, 2016 WL 1063284 (Ariz. Ct. App. Mar. 17, 2016).
Pro se defendant was charged with three counts of sexual conduct with a minor, two counts of molestation of a child, and one count of furnishing obscene or harmful items to a minor as a result of his conduct with two child-victims. The state and the victims sought to prevent the pro se defendant from personally cross-examining the child-victims and instead sought to have advisory counsel conduct any cross-examination. After conducting an evidentiary hearing during which evidence of trauma was presented, the trial court denied the motion to have advisory counsel conduct cross-examination of the child-victims, holding that “[s]o long as Defendant exercises his right of self-representation and he complies with court rules and decorum, this Court must allow [him to cross-examine the child-victims].” The trial court found sufficient evidence that one of the child-victims would likely experience trauma if she had face-to-face contact with defendant (the child-victim’s father) and ordered the examination to proceed by closed-circuit television (CCTV). The state and counsel for a parent of one of the child-victims filed petitions for special action, seeking relief from the trial court’s order. The court of appeals accepted jurisdiction and consolidated the actions, finding that petitioners had no adequate remedy by appeal and that the petitions presented issues of statewide importance. The court of appeals held that the trial court applied an incorrect interpretation of the law and that if trauma will result from cross-examination by a self-represented defendant, a court may restrict defendant from personally cross-examining a witness, without violating defendant’s constitutional rights. Because the trial court inaccurately analyzed the law, the court of appeals vacated the order and remanded for redetermination of whether cross-examination by advisory counsel was “necessary to protect the physical or psychological well-being” of the child-victims. The court of appeals further clarified that the state bears the burden of providing clear and convincing evidence of harm to justify the necessity of such an accommodation. Finally, the court of appeals clarified that a trial court may order an accommodation that was not requested by the parties, as the court has the discretion to control the courtroom and presentation of evidence, as well as the obligation to provide appropriate safeguards to minimize contacts between victims and defendants in connection with court proceedings. In remanding for redetermination, the court of appeals ordered the trial court to “consider whether the State presented clear and convincing, individualized, and case-specific evidence that the [child-victims] will suffer trauma if the court does not restrict [defendant’s] right to personally cross-examine them.” If an accommodation is supported by this finding, the trial court has the discretion to employ an accommodation it “deems necessary to protect the [child-victims] from suffering trauma.”