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Colorado Supreme Court Opinions
October 24, 2011

No. 08SC945. People v. Gabriesheski.
Dependency and Neglect Proceeding—Attorney–Client Privilege—Confidentiality of Communications—Guardian ad Litem—Social Worker—Witnesses.

The People sought review of the court of appeals’ judgment affirming two in limine evidentiary rulings of the district court in a prosecution for sexual assault on a child by one in a position of trust. Following the district court’s exclusion of testimony concerning the recantation of defendant’s step-daughter, the alleged sexual assault victim, the prosecutor conceded her inability to go forward, and the case was dismissed. The court of appeals concluded that CRS § 16-12-102(1) gave it jurisdiction to entertain the People’s appeal, and it affirmed both of the trial court’s evidentiary rulings.

With regard to the exclusion of testimony by the guardian ad litem (GAL) appointed in a parallel dependency and neglect (D&N) proceeding, the court of appeals held that the child’s communications with the GAL fell within the attorney–client privilege, as set out at CRS § 13-90-107(1)(b). With regard to the exclusion of testimony by a social worker also involved in the D&N proceeding, the court or appeals found her to be a professional who could not be examined in a criminal case without the consent of the parent-respondent, pursuant to CRS § 19-3-207, as well as a licensed professional who could not be examined without the consent of her client, pursuant to CRS § 13-90-107(1)(g).

The Supreme Court affirmed in part and reversed in part. The Court held that the court of appeals did have jurisdiction to entertain the People’s appeal, but disapproved of its conclusions with regard to the trial court’s evidentiary rulings. The Court found that because a child who is the subject of a D&N proceeding is not the client of a court-appointed GAL, neither the statutory attorney–client privilege nor ethical rules governing an attorney’s obligations of confidentiality to a client strictly apply to communications by the child. Further, the Court found that because the trial court apparently understood § 19-3-207 to bar the examination of the social worker in defendant’scriminal case—as long as she qualified as a professional involved in the D&N proceeding—it failed to make sufficient findings to satisfy the additional statutory requirement that the statements at issue be made in compliance with court treatment orders, or to demonstrate the applicability of §13-90-107, which is limited by its own terms to communications made by a client in the course of professional employment or psychotherapy.

Colorado Supreme Court Opinions