People v. Brothers, — P.3d —, No. 12SA156, 2013 WL 2340633 (Colo. May 28, 2013).

Defendant was charged with a number of offenses, including sexual assault on a child by one in a position of trust.  In advance of the preliminary hearing, defendant issued subpoenas to the child-victim’s parents, ordering them to appear at the preliminary hearing and to bring the child-victim with them.  The prosecutor filed a motion to quash the subpoenas, arguing that the child-victim’s testimony was not necessary for the probable cause determination, as the prosecution intended to proceed on the basis of testimony by the investigating officer alone, and that the child-victim “stood to suffer unnecessary psychological harm if required to appear.”  The trial court refused to consider the motion to quash before the prosecution presented its evidence at the preliminary hearing.  To prevent the child-victim from suffering harm associated with preparing for and attending the hearing, the prosecution sought a stay of the preliminary hearing to permit the trial court to rule on the motion in advance of the hearing.  When the trial court did not respond to the motion for a stay, the prosecution filed a petition with the Colorado Supreme Court, asserting that the trial court abused its discretion by failing to quash the subpoenas prior to the preliminary hearing.  The trial court later entered an order denying consideration of the motion to quash until after the prosecution presented its evidence at the preliminary hearing.  Taking up this matter of original jurisdiction, the Colorado Supreme Court began by confirming that the prosecution has standing to move to quash the subpoenas, based on its independent interests in the prosecution of the case, including case management interests and the prevention of witness harassment.  The court cited to precedent in finding that although parties generally have broad authority to issue subpoenas, “certain narrow circumstances require closer monitoring of the subpoena power in order to prevent abuse[,]” and that defendants have no constitutional right to unrestricted confrontation of witnesses or to introduce evidence at preliminary hearings.  The court further explained that although it is generally within the trial court’s discretion to decide when and under what circumstances to take up a motion to quash a subpoena, when a child-victim could suffer harm “simply by being required to attend the preliminary hearing,” it is an abuse of discretion for the trial court to fail to consider the motion in advance of the hearing so as to avoid this harm.  The court then vacated the trial court’s order denying consideration of the motion to quash prior to the preliminary hearing, and directed the trial court to conduct further proceedings consistent with this opinion.