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TCL > December 2007 Issue > Court Business

The Colorado Lawyer
December 2007
Vol. 36, No. 12 [Page  103]

© 2007 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Court Business

Court Business

Visit the related court’s website for complete text of rule changes or proposed rule changes issued by the court. Each court’s website includes corresponding forms, which are not printed in Court Business, and versions with highlights of revisions (deletions and additions).


Colorado Supreme Court Rules Committee
Notice of Public Written Comment
Regarding New Rule to
Colorado Rules of Criminal Procedure
Chapter 29
Proposed New Rules: Comments Due December 21, 2007

The Colorado Supreme Court proposes to approve new Rules 5, 7, and 16. Preliminary Hearings, The Indictment and the Information, and Discovery and Procedure Before Trial. An original and eight copies of the written comments on the proposed new rule and form should be filed with the Clerk of the Colorado Supreme Court, Susan J. Festag, at Two East 14th Ave., Denver, Colorado 80203, no later than 5:00 p.m., Friday, December 21, 2007. If adopted by the Court, the rules would become effective January 31, 2008.

[Note: The proposed new rules are printed below. Corresponding Table 1, frequently asked questions, and all forms can be found at the Court’s website: http://www.courts.state.us/supct/proposedrulechanges.htm.]

By the Court:

Alex J. Martinez, Justice
Colorado Supreme Court


Chapter 29
Colorado Rules of Criminal Procedure
Rule 5. Preliminary Hearings
Rule 7. The Indictment and the Information
Rule 16. Discovery and Procedure Before Trial

Rule 5. Preliminary Hearings

(a) Felony Proceedings.

(4) Preliminary Hearing—County Court Procedures. Every person accused of a class 1, 2, or 3 felony in a felony complaint has the right to demand and receive a preliminary hearing to determine whether probable cause exists to believe that the offense charged in the felony complaint was committed by the defendant. In addition, only those persons accused of a class 4, 5, or 6 felony by felony complaint which felony requires mandatory sentencing or is a crime of violence as defined in section 18-1.3-406 or is a sexual offense under part 4 of article 3 of title 18, C.R.S., shall have the right to demand and receive a preliminary hearing to determine whether probable cause exists to believe that the offense charged in the felony complaint was committed by the defendant. However, any defendant accused of a class 4, 5, or 6 felony who is not otherwise entitled to a preliminary hearing may request a preliminary hearing if the defendant is in custody for the offense for which the preliminary hearing is requested; except that, upon motion of either party, the court shall vacate the preliminary hearing if there is a reasonable showing that the defendant has been released from custody prior to the preliminary hearing. Any person accused of a class 4, 5, or 6 felony who is not entitled to a preliminary hearing shall, unless otherwise waived, participate in a dispositional hearing for the purposes of case evaluation and potential resolution. The following procedures shall govern the holding of a preliminary hearing:

(I) [No Change]

(II) [No Change]

(III) [No Change]

(IV) If from the evidence it appears to the county court that there is not probable cause to believe that any or all of the offenses charged were committed by the defendant, the county court shall dismiss those counts from the complaint and, if all counts are dismissed, discharge the defendant. Upon a finding of no probable cause, the prosecution may appeal pursuant to Rule 5(a)(4)(V), file a direct information pursuant to Rule 5(a)(4)(VI) charging the same offense(s), or submit the matter to a grand jury, but may not file a subsequent felony complaint charging the same offenses.

(V) If the prosecutor believes the court erred in its finding of no probable cause, the prosecutor may appeal the ruling to the district court. The appeal of such final order shall be conducted pursuant to the procedures for interlocutory appeals in Rule 37.1 of these rules. Such error, if any, shall not constitute good cause for refiling.

(VI) Upon a finding of no probable cause as to any one or more of the offenses charged in a felony complaint, the prosecution may file a direct information in the district court pursuant to Rule 7(c)(2) charging the same offense(s). If the prosecutor states an intention to proceed in this manner, the bond executed by the defendant shall be continued and returnable in the district court at a day and time certain. If a bond has not been continued, the defendant shall be summoned into court without the necessity of making a new bond.

(VII) If a felony complaint is dismissed prior to a preliminary hearing being held when one is required or, in other cases, prior to being bound over, the prosecution may thereafter file a direct information in the district court pursuant to Rule 7(c)(4) charging the same offense(s), file a felony complaint in the county court charging the same offense(s), or submit the matter to a grand jury. If the prosecution files a subsequent felony complaint charging the defendant with the same offense(s), the felony complaint shall be accompanied by a written statement from the prosecutor providing good cause for dismissing and refiling the charges. Within twenty days of defendant’s first appearance following the filing of the new felony complaint the defendant may request an evidentiary hearing at which the prosecutor shall establish the existence of such good cause.

(VIII) If the county court has bound over the defendant to the district court and the case is thereafter dismissed in the district court before jeopardy has attached, the prosecution may file a direct information in the district court pursuant to Rule 7(c)(5) charging the same offense(s), file a felony complaint in county court charging the same offense(s), or submit the matter to a grand jury, and the case shall then proceed as if the previous case had never been filed. The prosecution shall also file with the felony complaint or the direct information a statement showing good cause for dismissing and then refiling the case. Within twenty days of defendant’s first appearance following the filing of the new felony complaint or the direct filing of the new information the defendant may request an evidentiary hearing at which the prosecutor shall establish the existence of such good cause.

Rule 7. The Indictment and the Information

(c) Direct Information. The prosecutor may file a direct information if:

(1) The prosecutor obtains the consent of the court having trial jurisdiction and no complaint was filed against the accused person in the county court pursuant to Rule 5; or

(2) A preliminary hearing was held either in the county court or in the district court and the court found probable cause did not exist as to one or more counts. If the prosecutor states an intention to proceed in this manner, the bond executed by the defendant shall be continued and returnable in the district court at a day and time certain. If a bond has not been continued, the defendant shall be summoned into court without the necessity of making a new bond. The information shall be accompanied by a written statement from the prosecutor alleging facts which establish that evidence exists which for good cause was not presented by the prosecutor at the preliminary hearing. Within twenty days of defendant’s first appearance following the direct filing the defendant may request an evidentiary hearing at which the prosecutor shall establish the existence of such good cause; or

(3) The prosecutor obtains the consent of the court having trial jurisdiction and the complaint upon which the preliminary hearing was held and the other records in the case have not been delivered to the clerk of the proper trial court.

(4) The case was dismissed before a preliminary hearing was held in the county court or in the district court, when one is required, or, in other cases, before the defendant was bound over to the trial court or otherwise set for arraignment or trial. The information shall be accompanied by a written statement from the prosecutor stating good cause for dismissing and then refiling the case. Within twenty days after defendant’s first appearance following the direct filing the defendant may request a hearing at which the prosecutor shall establish the existence of such good cause. The prosecution may also submit the matter to a grand jury.

(5) The case was dismissed after the district or county court found probable cause at the preliminary hearing if one was required or, in other cases, after the defendant was bound over to the trial court or otherwise set for arraignment or trial, and before jeopardy has attached. If such case was originally filed by direct information in the district court, the prosecution may not file the same offense(s) by a felony complaint in the county court, but the prosecution may charge the same offense(s) by filing a direct information in the district court or may submit the matter to a grand jury, and the case shall then proceed as if the previous case had never been filed. The prosecution shall also file with the direct information or with the felony complaint a statement showing good cause for dismissing and then refiling the case. Within twenty days of defendant’s first appearance following the filing of the new felony complaint or the direct filing of the new information the defendant may request an evidentiary hearing at which the prosecutor shall establish the existence of such good cause.

(h) Preliminary Hearing—District Court Procedures.

(1) In cases in which a direct information was filed pursuant to Rule 7 (c), either the defendant, or the prosecutor, if accused of a class 1, 2, or 3 felony or a class 4, 5, or 6 felony if such felony requires mandatory sentencing or is a crime of violence as defined in section 18-1.3-406 or is a sexual offense under part 4 of article 3 of title 18, C.R.S. may request a preliminary hearing to determine whether probable cause exists to believe that the offense charged in the information has been committed by the defendant. However, any defendant accused of a class 4, 5, or 6 felony who is not otherwise entitled to a preliminary hearing may request a preliminary hearing if the defendant is in custody for the offense for which the preliminary hearing is requested; except that, upon motion of either party, the court shall vacate the preliminary hearing if there is a reasonable showing that the defendant has been released from custody prior to the preliminary hearing. Any person accused of a class 4, 5, or 6 felony who may not request a preliminary hearing shall participate in a dispositional hearing unless otherwise waived for the purposes of case evaluation and potential resolution. The request for a preliminary hearing shall be made prior to plea together with any motions filed pursuant to Rule 12 (b). The trial court may permit a request for a preliminary hearing to be made after a plea only upon a showing of good and sufficient cause. No request for a preliminary hearing may be filed in a case which is to be tried upon indictment.

(2) [No Change]

(3) [No Change]

(4) If, from the evidence, it appears to the district court that no probable cause exists to believe that any or all of the offenses charged were committed by the defendant, the court shall dismiss those counts from the information and, if the court dismisses all counts, discharge the defendant; otherwise, or subsequent to a dispositional hearing, it shall set the case for arraignment or trial. If the prosecutor believes the court erred in its finding of no probable cause, this ruling may be appealed pursuant to Colorado Appellate Rules. Such a ruling shall not constitute good cause for refiling.

(4.5) [No Change]

(5) If a request for preliminary hearing has not been filed within the time limitations of subsection (h) (1) of this Rule, such a request shall not thereafter be heard by the court, nor shall the court entertain successive requests for preliminary hearing. The order denying a dismissal of any or all of the counts in the information after a preliminary hearing shall be final and not subject to review on appeal. The granting of such a dismissal or any or all of the counts in an information shall not be a bar to further prosecution of the accused person for the same offenses. Upon a finding of no probable cause, the prosecution may appeal pursuant to Rule 7(h)(4), may file another direct information in the district court pursuant to Rule 7(c)(2) charging the same offense(s) or may submit the matter to a grand jury, but in such cases originally filed by direct information in the district court, the prosecution may not refile the same offense(s) by a felony complaint in the county court.

Rule 16. Discovery and Procedure Before Trial

Definitions.

(1) "Defense," as used in this rule, means an attorney for the defendant, or a defendant if pro se.

Part I. Disclosure to the Defense

(a) Prosecutor’s Obligations.

(1) The prosecuting attorney shall make available to the defense the following material and information which is within the possession or control of the prosecuting attorney, and shall provide duplicates upon request, and concerning the pending case:

(I) Police, arrest and crime or offense reports, including statements of all witnesses;

(II) With consent of the judge supervising the grand jury, all transcripts of grand jury testimony and all tangible evidence presented to the grand jury in connection with the case;

(III) Any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons;

(IV) Any books, papers, documents, photographs or tangible objects held as evidence in connection with the case;

(V) Any record of prior criminal convictions of the accused, any codefendant or any person the prosecuting attorney intends to call as a witness in the case;

(VI) All tapes and transcripts of any electronic surveillance (including wiretaps) of conversations involving the accused, any codefendant or witness in the case;

(VII) A written list of the names and addresses of the witnesses then known to the district attorney whom he or she intends to call at trial;

(VIII) Any written or recorded statements of the accused or of a codefendant, and the substance of any oral statements made to the police or prosecution by the accused or by a codefendant, if the trial is to be a joint one.

(2) The prosecuting attorney shall disclose to the defense any material or information within his or her possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefor.

(3) The prosecuting attorney’s obligations under this section (a) extend to material and information in the possession or control of members of his or her staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report, or with reference to the particular case have reported, to his or her office.

(b) Prosecutor’s Performance of Obligations.

(1) The prosecuting attorney shall perform his or her obligations under subsections (a)(1)(I), (IV), (VII), and with regard to written or recorded statements of the accused or a codefendant under (VIII) as soon as practicable but not later than twenty calendar days after the defendant’s first appearance at the time of or following the filing of charges, except that portions of such reports claimed to be nondiscoverable may be withheld pending a determination and ruling of the court under Part III but the defense must be notified in writing that information has not been disclosed.

(2) The prosecuting attorney shall request court consent and provide the defense with all grand jury transcripts made in connection with the case as soon as practicable but not later than thirty days after indictment.

(3) The prosecuting attorney shall perform all other obligations under subsection (a)(1) as soon as practicable but not later than thirty days before trial.

(4) The prosecuting attorney shall ensure that a flow of information is maintained between the various investigative personnel and his or her office sufficient to place within his or her possession or control all material and information relevant to the accused and the offense charged.

(c) Material Held by Other Governmental Personnel.

(1) Upon the defense’s request and designation of material or information which would be discoverable if in the possession or control of the prosecuting attorney and which is in the possession or control of other governmental personnel, the prosecuting attorney shall use diligent good faith efforts to cause such material to be made available to the defense.

(2) The court shall issue suitable subpoenas or orders to cause such material to be made available to the defense, if the prosecuting attorney’s efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court.

(d) Discretionary Disclosures.

(1) The court in its discretion may, upon motion, require disclosure to the defense of relevant material and information not covered by Parts I(a), (b), and (c), upon a showing by the defense that the request is reasonable.

(2) The court may deny disclosure authorized by this section if it finds that there is substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment, resulting from such disclosure, which outweighs any usefulness of the disclosure to the defense.

(3) Where the interests of justice would be served, the court may order the prosecution to disclose the underlying facts or data supporting the opinion in that particular case of an expert endorsed as a witness. If a report has not been prepared by that expert to aid in compliance with other discovery obligations of this rule, the court may order the party calling that expert to provide a written summary of the testimony describing the witness’s opinions and the bases and reasons therefor, including results of physical or mental examination and of scientific tests, experiments, or comparisons. The intent of this section is to allow the defense sufficient meaningful information to conduct effective cross-examination under CRE 705.

(e) Matters not Subject to Disclosure.

(1) Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting attorney or members of his legal staff.

(2) Informants. Disclosure shall not be required of an informant’s identity where his or her identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.

Part II. Disclosure to Prosecution

(a) The Person of the Accused.

(1) Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, upon request of the prosecuting attorney, the court may require the accused to give any nontestimonial identification as provided in Rule 41.1 (h)(2).

(2) Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the prosecuting attorney to the accused and his or her counsel. Provision may be made for appearance for such purposes in an order admitting the accused to bail or providing for his or her release.

(b) Medical and Scientific Reports.

(1) Subject to constitutional limitations, the trial court may require that the prosecuting attorney be informed of and permitted to inspect and copy or photograph any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.

(2) Subject to constitutional limitations, and where the interests of justice would be served, the court may order the defense to disclose the underlying facts or data supporting the opinion in that particular case of an expert endorsed as a witness. If a report has not been prepared by that expert to aid in compliance with other discovery obligations of this rule, the court may order the party calling that expert to provide a written summary of the testimony describing the witness’s opinions and the bases and reasons therefor, including results of physical or mental examinations and of scientific tests, experiments, or comparisons. The intent of this section is to allow the prosecution sufficient meaningful information to conduct effective cross-examination under CRE 705.

(c) Nature of Defense.

Subject to constitutional limitations, the defense shall disclose to the prosecution the nature of any defense, other than alibi, which the defense intends to use at trial. The defense shall also disclose the names and addresses of persons whom the defense intends to call as witnesses at trial. At the entry of the not guilty plea, the court shall set a deadline for such disclosure. In no case shall such disclosure be less than thirty (30) days before trial for a felony trial, or seven (7) days before trial for a non-felony trial, except for good cause shown. Upon receipt of the information required by this subsection (c), the prosecuting attorney shall notify the defense of any additional witnesses which the prosecution intends to call to rebut such defense within a reasonable time after their identity becomes known.

(d) Notice of Alibi.

The defense, if it intends to introduce evidence that the defendant was at a place other than the location of the offense, shall serve upon the prosecuting attorney as soon as practicable but not later than thirty days before trial a statement in writing specifying the place where he or she claims to have been and the names and addresses of the witnesses he or she will call to support the defense of alibi. Upon receiving this statement, the prosecuting attorney shall advise the defense of the names and addresses of any additional witnesses who may be called to refute such alibi as soon as practicable after their names become known. Neither the prosecuting attorney nor the defense shall be permitted at the trial to introduce evidence inconsistent with the specification, unless the court for good cause and upon just terms permits the specification to be amended. If the defense fails to make the specification required by this section, the court shall exclude evidence in his behalf that he or she was at a place other than that specified by the prosecuting attorney unless the court is satisfied upon good cause shown that such evidence should be admitted.

Part III. Regulation of Discovery

(a) Investigation Not to be Impeded.

Subject to the provisions of Parts I (d) and III (d), neither the prosecuting attorney, the defense counsel, the defendant nor other prosecution or defense personnel shall advise persons having relevant material or information (except the defendant) to refrain from discussing the case with showing any relevant material to any party, counsel or their agent, nor shall they otherwise impede counsel’s investigation of the case. The court shall determine that the parties are aware of the provision.

(b) Continuing Duty to Disclose.

If, subsequent to compliance with these standards or orders pursuant thereto, a party discovers additional material or information which is subject to disclosure, including the names and addresses of any additional witnesses who have become known or the materiality of whose testimony has become known to the district attorney after making available the written list required in part I (a)(1)(VII), he or she shall promptly notify the other party or his or her counsel of the existence of such additional material, and if the additional material or information is discovered during trial, the court shall also be notified.

(c) Custody of Materials.

Materials furnished in discovery pursuant to this rule may only be provided to others and used by them for purposes of preparation and trial of the case, and shall be subject to such other terms, conditions or restrictions as the court, statutes or rules may provide. Defense counsel is not required to provide actual copies of discovery to his or her client if defense counsel reasonably believes that it would not be in the client’s interest, and other methods of having the client review discovery are available. An attorney may also use materials he or she receives in discovery for the purposes of educational presentations if all identifying information is first removed.

(d) Protective Orders.

With regard to all matters of discovery under this rule, upon a showing of cause, the court may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit the party to make beneficial use thereof.

(e) Excision.

(1) When some parts of certain material are discoverable under the provisions of these court rules, and other parts are not discoverable, the nondiscoverable material may be excised and the remainder made available in accordance with the applicable provisions of these rules.

(2) Material excised pursuant to judicial order shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.

(f) In Camera Proceedings.

Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.

(g) Failure to Comply; Sanctions.

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed or enter such other order as it deems just under the circumstances.

Part IV. Procedure

(a) General Procedural Requirements.

(1) In all criminal cases, in procedures prior to trial, there may be a need for one or more of the following three stages:

(I) An exploratory stage, initiated by the parties and conducted without court supervision to implement discovery required or authorized under this rule;

(II) An omnibus stage, when ordered by the court, supervised by the trial court and court appearance required when necessary;

(III) A trial planning stage, requiring pretrial conferences when necessary.

(2) These stages shall be adapted to the needs of the particular case and may be modified or eliminated as appropriate.

(b) Setting of Omnibus Hearing.

(1) If a plea of not guilty or not guilty by reason of insanity is entered at the time the accused is arraigned, the court may set a time for and hold an omnibus hearing in all felony and misdemeanor cases.

(2) In determining the date for the omnibus hearing, the court shall allow counsel sufficient time:

(I) To initiate and complete discovery required or authorized under this rule;

(II) To conduct further investigation necessary to the defendant’s case;

(III) To continue plea discussion.

(3) The hearing shall be no later than thirty days after arraignment.

(c) Omnibus Hearing.

(1) If an omnibus hearing is held, the court on its own initiative, utilizing an appropriate checklist form, should:

(I) Ensure that there has been compliance with the rule regarding obligations of the parties;

(II) Ascertain whether the parties have completed the discovery required in Part I (a), and if not, make orders appropriate to expedite completion;

(III) Ascertain whether there are requests for additional disclosures under Part I (d);

(IV) Make rulings on any motions or other requests then pending, and ascertain whether any additional motions or requests will be made at the hearing or continued portions thereof;

(V) Ascertain whether there are any procedural or constitutional issues which should be considered; and

(VI) Upon agreement of the parties, or upon a finding that the trial is likely to be protracted or otherwise unusually complicated, set a time for a pretrial conference.

(2) Unless the court otherwise directs, all motions and other requests prior to trial should be reserved for and presented orally or in writing at the omnibus hearing. All issues presented at the omnibus hearing may be raised without prior notice by either or by the court. If discovery, investigation, preparation, and evidentiary hearing, or a formal presentation is necessary for a fair determination of any issue, the omnibus hearing should be continued until all matters are properly disposed of.

(3) Any pretrial motion, request, or issue which is not raised at the omnibus hearing shall be deemed waived, unless the party concerned did not have the information necessary to make the motion or request or raise the issue.

(4) Stipulations by any party or his or her counsel should be binding upon the parties at trial unless set aside or modified by the court in the interests of justice.

(5) A verbatim record of the omnibus hearing shall be made. This record shall include the disclosures made, all rulings and orders of the court, stipulations of the parties, and an identification of other matter determined or pending.

(d) Omnibus Hearing Forms.

(1) The forms set out in the Appendix to Chapter 29 shall be utilized by the court in conducting the omnibus hearing. These forms shall be made available to the parties at the time of the defendant’s first appearance.

(2) Nothing in the forms shall be construed to make substantive changes of these rules.

(e) Pretrial Conference.

(1) Whenever a trial is likely to be protracted or otherwise unusually complicated, or upon request by agreement of the parties, the trial court may (in addition to the omnibus hearing) hold one or more pretrial conferences, with trial counsel present, to consider such matters as will promote a fair and expeditious trial. Matters which might be considered include:

(I) Making stipulations as to facts about which there can be no dispute;

(II) Marking for identification various documents and other exhibits of the parties;

(III) Excerpting or highlighting exhibits;

(IV) Waivers of foundation as to such documents;

(V) Issues relating to codefendant statements;

(VI) Severance of defendants or offenses for trial;

(VII) Seating arrangements for defendants and counsel;

(VIII) Conduct of jury examination, including any issues relating to confidentiality of juror locating information;

(IX) Number and use of peremptory challenges;

(X) Procedure on objections where there are multiple counsel or defendants;

(XI) Order of presentation of evidence and arguments when there are multiple counsel or defendants;

(XII) Order of cross-examination where there are multiple defendants;

(XIII) Temporary absence of defense counsel during trial;

(XIV) Resolution of any motions or evidentiary issues in a manner least likely to inconvenience jurors to the extent possible; and

(XV) Submission of items to be included in a juror notebook.

(2) At the conclusion of the pretrial conference, a memorandum of the matters agreed upon should be signed by the parties, approved by the court, and filed. Such memorandum shall be binding upon the parties at trial, on appeal and in postconviction proceedings unless set aside or modified by the court in the interests of justice. However, admissions of fact by an accused if present should bind the accused only if included in the pretrial order and signed by the accused as well as his or her attorney.

(f) Juror Notebooks.

Juror notebooks shall be available during all felony trials and deliberations to aid jurors in the performance of their duties. The parties shall confer about the items to be included in juror notebooks and, by the pre-trial conference or other date set by the court, shall make a joint submission to the court of items to be included in a juror notebook. In non-felony trials, juror notebooks shall be optional.

Part V. Time Schedules and Discovery Procedures

(a) Mandatory Discovery.

The furnishing of the items discoverable, referred to in Part I (a), (b) and (c) and Part II (b)(1), (c) and (d) herein, is mandatory and no motions for discovery with respect to such items may be filed.

(b) Time Schedule.

(1) In the event the defendant enters a plea of not guilty or not guilty by reason of insanity, or asserts the defense of impaired mental condition, the court shall set a deadline for such disclosure to the prosecuting attorney of those items referred to in Parts II (b)(1) and (c) herein, subject to objections which may be raised by the defense within that period pursuant to Part III (d) of this rule. In no case shall such disclosure be less than thirty (30) days before trial for a felony trial, or seven (7) days before trial for a non-felony trial, except for good cause shown.

(2) If either the prosecuting attorney or the defense claims that discoverable material under this rule was not furnished, was incomplete, was illegible or otherwise failed to satisfy this rule, or if claim is made that discretionary disclosures pursuant to Part I (d) should be made, the prosecuting attorney or the defense may file a motion concerning these matters and the motion shall be promptly heard by the court.

(3) For good cause, the court may, on motion of either party or its own motion, alter the time for all matters relating to discovery under this rule.

(c) Cost and Location of Discovery.

The cost of duplicating any material discoverable under this rule shall be borne by the party receiving the material, based on the actual cost of copying the same to the party furnishing the material. Copies of any discovery provided to a defendant by court appointed counsel shall be paid for by the defendant. The place of discovery and furnishing of materials shall be at the office of the party furnishing it, or at a mutually agreeable location.

(d) Compliance Certificate.

(1) When deemed necessary by the trial court, the prosecuting attorney and the defense shall furnish to the court a compliance certificate signed by all counsel listing specifically each item furnished to the other party. The court may, in its discretion, refuse to admit into evidence items not disclosed to the other party if such evidence was required to be disclosed under Parts I and II of this rule.

(2) If discoverable matters are obtained after the compliance certificate is filed, copies thereof shall be furnished forthwith to the opposing party and, upon application to the court, the court may either permit such evidence to be offered at trial or grant a continuance in its discretion.


Rule Change 2007(13)
Chapter 33
Colorado Rules of Evidence
Rule 404. Character Evidence Not Admissible to Prove Conduct,
Exception; Other Crimes
Rule 408. Compromise and Offers to Compromise
Rule 606. Competency of Juror as Witness
Amended and Adopted

Rule 404. Character Evidence Not Admissible to
Prove Conduct, Exception; Other Crimes

(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of accused. In a criminal case, evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same or if evidence of the alleged victim’s character for aggressiveness or violence is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of alleged victim. In a criminal case, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(3) Character of witness. Evidence of the character of a witness as provided in Rules 607, 608, and CRS § 13-90-101.

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rule 408. Compromise and Offers to Compromise

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness’s bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

Rule 606. Competency of Juror as Witness

(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. No objection need be made in order to preserve the point.

(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors’ attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Committee Comment

Rule 606(b) has been amended to bring it into conformity with the 2006 amendments to the federal rule, providing that juror testimony may be used to prove that the verdict reported was the result of a mistake in entering the verdict on the verdict form.  The federal amendment responded to a divergence between the text of the Rule and the case law that had established an exception for proof of clerical errors. See Fed. R. Evid. 606(b) advisory committee notes (2006 Amendments); see also Stewart v. Rice, 47 P.3d 316 (Colo. 2002).

Amended and Adopted by the Court, En Banc, September 27, 2007, effective January 31, 2008.

By the Court:

Nathan B. Coats, Justice
Colorado Supreme Court


Rule Change 2007(14)
Chapter 25
Colorado Rules of County Court Civil Procedure
Amended and Adopted

Rule 303. Commencement of Action

(a) How Commenced. A simplified civil action is commenced: (1) by filing with the court a complaint consisting of a statement of claim setting forth briefly the facts and circumstances giving rise to the action in the manner and form provided in Rule 308; or (2) by service of a summons and complaint. The complaint must be filed within fifteen days of the service of the summons and not less than five days in advance of the return date. If the complaint is not timely filed, the service of the summons shall be deemed ineffective and void without notice. In such case the court may, in its discretion, tax a reasonable sum in favor of the defendant to compensate the defendant for expense and inconvenience, including attorney’s fees, to be paid by plaintiff or the plaintiff’s attorney. The fifteen day filing requirement may be expressly waived by a defendant and shall be deemed waived upon the filing of an answer or motion to the complaint without reserving the issue.

(b) Issuance of Summons. Upon the filing of a complaint as provided in section (a) of this rule and the payment of the docket fee, the clerk shall docket the case and assign it a number. Unless summons has prior thereto been issued and signed by an attorney, the clerk shall then sign and issue a summons under the seal of the court. Separate, additional, an amended summons may be issued by the clerk or an attorney of record against any defendant at any time, and when issued by an attorney, it must be filed with the court no later than five days in advance of the return date. All process shall be issued by the clerk except as otherwise provided by these rules.

(c) [No Change]

Rule 305. Service and Filing of Pleadings and other Papers

(a) Service: When Required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper related to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, filings on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 304.

(b) Making Service. (1) Service under C.R.C.P. 305(a) on a party represented by an attorney is made upon the attorney unless the court orders personal service upon the party. A resident attorney, on whom pleadings and other papers may be served, shall be associated as attorney of record with any out-of-state attorney practicing in any courts of this state. (2) Service under C.R.C.P. 305(a) is made by:

(A) Delivering a copy to the person served by:

(i) handing it to the person;

(ii) leaving it at the person’s office with a clerk or other person in charge, or if no one is in charge, leaving it in a conspicuous place in the office; or

(iii) if the person has no office or the office is closed, leaving it at the person’s dwelling house or usual place of abode with someone 18 years of age or older residing there;

(B) Mailing a copy to the last known address of the person served. Service by mail is complete on mailing;

(C) If the person served has no known address, leaving a copy with the clerk of the court; or

(D) Delivering a copy by any other means, including E-Service, other electronic means or a designated overnight courier, consented to in writing by the person served. Designation of a facsimile phone number in the pleadings effects consent in writing for such delivery. Parties who have subscribed to E-Filing, pursuant to Chief Justice Directive 06-02 have agreed to receive E-Service. Service by other electronic means is complete on transmission; service by other consented means is complete when the person making service delivers the copy to the agency designated to make delivery. Service by other electronic means or overnight courier under C.R.C.P. 305(b)(2)(D) is not effective if the party making service learns that the attempted service did not reach the person to be served.

(c) Service: Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.

(d) Filing; Certificate of Service. All papers after the initial pleading required to be served upon a party, together with a certificate of service, must be filed with the court within a reasonable time after service, but disclosures under Rule C.R.C.P. 316 and discovery requests and responses shall not be filed until they are used in the proceeding or the court orders otherwise.

(e) Filing with Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. A paper filed by E-Filing in compliance with Chief Justice Directive 06-02 constitutes a written paper for the purpose of this Rule. The clerk shall not refuse to accept any paper presented for filing solely because it is not presented in proper form as required by these rules or any local practice.

(f) Inmate Filing and Service. Except where personal service is required, a pleading filed or served by an inmate confined to an institution is timely filed or served if deposited in the institution’s internal mailing system on or before the last day for filing or serving. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule.

Rule 306. Time

(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by an applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. The term "calendar days" shall mean consecutive days including holidays, Saturdays or Sundays. Unless otherwise specifically ordered, when the period of time prescribed or allowed is less than eleven days, and not specified as "calendar days", intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this Rule, "Legal holiday" includes the first day of January, observed as New Year’s Day; the third Monday in January, observed as Martin Luther King Day; the third Monday in February, observed as Washington-Lincoln Day; the last Monday in May, observed as Memorial Day; the fourth day of July, observed as Independence Day; the first Monday in September, observed as Labor Day; the second Monday in October, observed as Columbus Day; the eleventh day of November, observed as Veteran’s Day; the fourth Thursday in November, observed as Thanksgiving Day; the twenty-fifth day of December, observed as Christmas Day, and any other day except Saturday or Sunday when the court is closed.

(b) through (d) [No Change]

(e) Additional Time on Service Under C.R.C.P. 305(b)(2)(B), (C), or (D). Unless otherwise specifically ordered, whenever a party must or may act within a prescribed period after service is made under C.R.C.P. 305(b)(2)(B), (C), or (D), three calendar days shall be added after the prescribed period would expire under the rule that defines the length of the prescribed period.

COMMITTEE COMMENT to Rule 306(e).

The three extra days for service under rule 305(b)(2)(B), (C), and (D) are calendar days and do not exclude weekends and holidays. Of course, if the newly-calculated date, after adding the three additional days under Rule 306(e) following service other than personal service, ends on a weekend or holiday, the deadline will be extended to the next business day.

When a deadline for action calculated under Rule 306(a) lands on a Saturday, Sunday or holiday, the three days under Rule 306(e) are to be added from that day, not from the first business day following the originally-determined date. Thus, for example, if a motion is e-filed on a Friday so that the deadline for filing an answer brief falls on a Saturday, the addition of the three days for service by e-filing would extend the actual filing deadline to the following Tuesday (Saturday deadline, plus Sunday, Monday and Tuesday).

Rule 312. Defenses and Objections—When and How Presented—
by Pleading or Motion—Motion for Judgment on Pleadings

(a) Responsive Pleadings; When Presented. The defendant shall file an answer including any counterclaim or cross-claim on or before the appearance date as fixed in the summons. Except as otherwise provided in this rule, the appearance date shall not be more than sixty days from the date of the issuance of the summons and the summons must have been served at least ten calendar days before the appearance date. When circumstances require that the plaintiff proceed under Rule 304(e), the above limitation shall not apply and the appearance date shall not be less than ten calendar days after the completion of service by publication of mail.

(b) through (d) [No Change]

Rule 316. Pretrial Procedure—Disclosure and Conference

(a) Disclosure Statement.

(1) At any time after the answer is filed but no later than 20 days before trial, a party may request from an opposing party a list of witnesses who may be called at trial, and copies of documents and pictures, and a description of physical evidence which may be used at trial. Such request shall be made by serving pursuant to C.R.C.P. 305 a blank disclosure statement, which shall be in the form and content of Appendix to Chapter 25, Form 9, on the opposing party and shall be accompanied by the requesting party’s properly completed Form 9 and its attachments. The opposing party shall serve pursuant to C.R.C.P. 305 a completed Form 9 with attachments on the requesting party within 20 days after service but not less than 10 calendar days before trial. The court may shorten or extend that time. A party may not supplement the disclosure statement except for good cause.

(2) The court may order the parties to exchange and file Form 9 disclosure statements at any time before trial.

(3) Any party failing to respond in good faith to a Form 9 request or court order under this subsection (a) shall be subject to imposition of appropriate sanctions at the time of trial.

(b) through (e) [No Change]

Rule 331. Conducting Depositions to Preserve Testimony

(a) Serving Interrogatories; Notice. If the court shall order the taking of a deposition of any person, the party desiring to take the deposition shall serve upon every other party not in default at least seven calendar days prior to the scheduled deposition copies of the written interrogatories, including the name and address of the person who is to answer them and the name, descriptive title, and address of the officer who will administer the interrogatories and transcribe the responses. Within five calendar days thereafter a party so served may serve cross-interrogatories upon the party proposing to take the deposition. No redirect or recross interrogatories shall be permitted.

(b) through (d) [No Change]

Rule 338. Right to Trial by Jury

(a) and (b) [No Change]

(c) Jury Fees. When a party to an action has exercised the right to demand a trial by jury, every other party to such action shall also pay the requisite jury fee unless such other party files and serves a notice of waiver of the right to trial by jury within ten calendar days after service of the demand.

(d) Specification of Issues. A demand may specify the issues to be tried to the jury; in the absence of such specification, the party filing the demand shall be deemed to have demanded trial by jury of all issues so triable. If a party demands trial by jury on fewer than all of the issues so triable, any other party, within ten calendar days after the demand is made, may file and serve a demand for trial by jury of any other issues so triable.

(e) [No Change]

Rule 343. Evidence

(a) through (g) [No Change]

PARAGRAPH (h) IS REPEALED AND READOPTED WITH AMENDMENTS AS FOLLOWS:

(h)(1) Request for absentee testimony. A party may request that testimony be presented at a trial or hearing by a person absent from the courtroom by means of telephone or some other suitable and equivalent medium of communication. A request for absentee testimony shall be made by written motion or stipulation filed as soon as practicable after the need for absentee testimony becomes known. The motion shall include:

(A) The reason(s) for allowing such testimony.

(B) A detailed description of all testimony which is proposed to be taken by telephone or other medium of communication.

(C) Copies of all documents or reports which will be used or referred to in such testimony.

(2) Response. If any party objects to absentee testimony, said party shall file a written response within 3 days following service of the motion unless the opening of the proceeding occurs first, in which case the objection shall be made orally in open court at the commencement of the proceeding or as soon as practicable thereafter. If no response is filed or objection is made, the motion may be deemed confessed.

(3) Determination. The court shall determine whether in the interest of justice absentee testimony may be allowed. The facts to be considered by the court in determining whether to permit absentee testimony shall include but not be limited to the following:

(A) Whether there is a statutory right to absentee testimony.

(B) The cost savings to the parties of having absentee testimony versus the cost of the witness appearing in person.

(C) The availability of appropriate equipment at the court to permit the presentation of absentee testimony.

(D) The availability of the witness to appear personally in court.

(E) The relative importance of the issue or issues for which the witness is offered to testify.

(F) If credibility of the witness is an issue.

(G) Whether the case is to be tried to the court or to a jury.

(H) Whether the presentation of absentee testimony would inhibit the ability to cross examine the witness.

(I) The efforts of the requesting parties to obtain the presence of the witness.

If the court orders absentee testimony to be taken, the court may issue such orders as it deems appropriate to protect the integrity of the proceedings.

Rule 355. Default

(a) Entry at Time of Appearance. Upon the date and at the time set for appearance, if the defendant has filed no answer or fails to appear and if the plaintiff proves by appropriate return that service was made upon the defendant as provided herein at least ten calendar days prior the appearance date, the judge may enter judgment for the plaintiff for the amount due, including interest, costs and other items provided by statute or the agreement. However, before judgment is entered, the court shall be satisfied that the venue of the action is proper under Rule 398(c).

(b) [No Change]

Rule 359. New Trials; Amendment of Judgments

(a) through (c) [No Change]

(d) Time for Filing and Serving Affidavits. When a motion for a new trial is based upon affidavits they shall be filed with the motion. The opposing party has ten calendar days after service thereof within which to file opposing affidavits, which period maybe extended for an additional period not exceeding twenty days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.

(e) through (g) [No Change]

Rule 369. Execution and Proceedings Subsequent to Judgment

(a) through (b) [No Change]

(c) Debtor of Judgment Debtor May Pay Sheriff. After issuance of an execution against property, any person indebted to the judgment debtor may pay to the sheriff the amount of the debt, or so much as may be necessary to satisfy the execution, and the sheriff’s receipt shall be sufficient discharge for the amount so paid.

(d) [No Change]

(e) Order for Interrogatories to Debtor of Judgment Debtor. At any time when execution may issue on a judgment, upon proof to the satisfaction of the court, by affidavit or otherwise, that any person or corporation has property of the judgment debtor or is indebted to the judgment creditor in an amount exceeding fifty dollars not exempt from execution, the court may order such person to answer such interrogatories as the court may approve touching upon the matters set forth in the affidavit of the judgment creditor.

(f) [No Change]

(g) Pattern Interrogatories—Use Automatically Approved. The pattern interrogatories set forth in Appendix to Chapter 25, Form Numbers 7 and 7A are approved, and as part of the judgment order, may be mailed by the clerk or served by the judgment creditor in accordance with rule 304 without any further order of court. Any proposed non-pattern interrogatory must be specifically approved by the court.

Amended and Adopted by the Court, En Banc, June 28, 2007, effective immediately.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court


Rule Change 2007 (15)
Appendix to Chapter 25
Forms
Colorado Rules of County Court Civil Procedure
Adopted

(Some forms in this Appendix are available from the Colorado courts Web page at http://www.courts.state.co.us/chs/court/forms/selfhelpcenter.htm.)

(New) Form 7 JDF 105 PATTERN INTERROGATORIES UNDER RULE 369

(New) Form 7A JDF 108 PATTERN INTERROGATORIES UNDER RULE 369

Adopted by the Court, En Banc, June 28, 2007, effective immediately.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court


Rule Change 2007(16)
The Colorado Rules of Criminal Procedure
Rule 32. Sentence and Judgment
Rule 49. Service and Filing of Papers
Amended and Adopted

Rule 32. Sentence and Judgment

(a) Presentence or Probation Investigation.

(1) When and How Made. In any felony case where the court has discretion as to the punishment and on court order in any misdemeanor case, the probation officer shall make an investigation and written report to the court before the imposition of sentence or granting of probation.

An application for probation shall be in writing upon forms furnished by the court, but when the defendant has been convicted of a misdemeanor or class 1 petty offense, the court, in its discretion, may waive the written application for probation.

The court, upon its own motion or upon the petition of the probation officer, may order any defendant who is subject to presentence investigation or who has made application for probation to submit to a mental and physical examination.

The court, with the concurrence of the defendant and the prosecuting attorney, may dispense with the presentence examination and report unless a presentence report is required by statute, including but not limited to the requirements of section 16-11-102(1)(b).

Rule 49. Service and Filing of Papers

(a) Service—When Required. Written motions other than those which are heard ex parte, written notices, and similar papers shall be served upon the adverse parties. A motion or other pleading that includes a claim alleging a state statute or municipal ordinance is unconstitutional shall also be served upon the Attorney General.

(b) Service—How Made. Whenever under these Rules or by court order service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made in the manner provided for civil actions unless otherwise ordered by the court.

(c) Notice of Orders. Immediately upon entry of any order made out of the presence of the parties after the information or indictment is filed, the clerk shall mail to each party affected a notice of the order and shall note the mailing in the docket.

Amended and Adopted by the Court, En Banc, October 18, 2007, effective immediately.

[Note: The new rule, frequently asked questions, and all forms can be found at the Court’s website: http://www.courts.state.us/supct/2007rules
chng.htm.]

By the Court:

Alex J. Martinez, Justice
Colorado Supreme Court


Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2007-09
(Finalized and Effective October 2, 2007)

ISSUE PRESENTED

The requesting judge sits on the county bench in a small, rural district where he often handles cases charged by the local police department. His spouse wishes to run for election to the City Council, which exercises supervisory responsibility over the Chief of Police and the City Manager. He is concerned that there could be an appearance of impropriety if his wife is elected to the City Council and if he were to sit on cases charged and brought by the police department. Assuming his spouse is elected to the City Council, may the judge continue to preside over cases charged by the police department?

CONCLUSION

The judge is not required to disqualify himself in cases charged by the police department. He should, however, consider whether the facts and circumstances make disqualification appropriate in a particular case. The judge should disclose that his spouse is a member of the City Council in cases charged by the police department.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 2 directs a judge to avoid impropriety and the appearance of impropriety in all of the judge’s activities. Canon 2B specifies that a judge should not allow family relationships to influence the judge’s conduct or judgment.

Canon 3C(1) provides that a judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including instances where a judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. Canon 3C(1)(d) states that a judge should disqualify himself or herself where a judge’s spouse is a party to the proceeding, is known to have an interest that could substantially be affected by the outcome of the proceeding, or is likely to be a material witness in the proceeding.

DISCUSSION

Resolution of this question requires the Board to consider and reconcile the tension between the Code of Judicial Conduct, which seeks to promote a fair and impartial judiciary that is free from any appearance of impropriety, and the freedom a judge’s spouse enjoys to pursue an independent career or avocation. Canon 3C provides some guidance in reconciling these tensions, requiring disqualification from a proceeding in which the judge’s impartiality might reasonably be questioned, and specifying in subsection 3C(1)(d)(IV) that disqualification is mandatory when the judge’s spouse participated in the investigation or case before the judge.

We considered a similar request involving judge’s duties under the Canons and a spouse’s potentially conflicting employment activities in 2005-01. There, a judge’s spouse was an officer employed by a Fire Protection District, which assisted the local sheriff’s office in conducting arson investigations. We concluded that the judge was required to disqualify himself in any case in which the judge’s spouse, or those the spouse supervised, participated in the investigation of the case. We also stated that the judge should disclose the spouse’s employment in any case in which an employee of the Fire Protection District, who is not supervised by the judge’s spouse, is involved. In all other cases involving the sheriff’s department, we cautioned the judge to make a case-by-case determination as to whether particular facts and circumstances would cause a reasonable person to question the judge’s impartiality.

We apply the reasoning of 2005-01 here, and conclude that the judge is not required to automatically disqualify in all cases charged by the police department. Here, the City Council exercises no direct supervisory power over members of the police department, except through its supervision of the Chief of Police and the City Manager. This relationship would not, in the usual case, cause the judge’s impartiality to be questioned. Of course, the judge should assess on a case-by-case basis whether the facts and circumstances would cause a reasonable person to question the judge’s impartiality and make the disqualification decision accordingly. See also CJEAB 2006-05. The judge should, however, disclose the spouse’s role on the City Council in any case charged by the police department.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 2nd day of October 2007. Professor James Wallace does not participate in this opinion.

Barbara Crowfoot (citizen member)
Hon. Martin Foster Egelhoff (judge member)
Daniel S. Hoffman, Esq. (attorney member)
Hon. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Prof. Emeritus James E. Wallace (law professor member)
Hon. John R. Webb (judge member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)


Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2007-10
(Finalized and Effective October 2, 2007)

ISSUE PRESENTED

The requesting judge has been asked to participate in a "Justice Coordinating Committee" (JCC) established by his county’s Board of County Commissioners (BOCC). According to the JCC bylaws, its purpose is to create a forum for various stakeholders in the county justice system to advise the BOCC on issues related to the system; allow for an ongoing dialogue among the civil and criminal justice entities and units of government; provide for a better understanding of both criminal and civil justice problems; enhance cooperation among entities and units of government; establish clear objectives and priorities; improve planning and coordination to help individual justice agencies become more efficient, productive, and effective; and provide for more effective resource allocation and better quality justice programs and personnel. The bylaws contemplate that the JCC will be composed of a variety of government officials, including the chief judge of the district, the district attorney, the sheriff, a county citizen, an elected official from one of the municipalities within the county, and two county commissioners. The bylaws provide for other non-voting members of the JCC to include a member of the local bar association, a member of the local defense bar, administrators from the municipal court, the court’s district administrator, the court’s chief probation officer, and representatives of local mental health centers. The judge has expressed concern that service on the JCC is precluded by the Board’s opinion in 2005-04. May the judge serve on the committee?

CONCLUSION

The requesting judge may serve on the JCC. The work of the JCC has a direct nexus to the law, the legal system, and the administration of justice. The purposes of the JCC are very general and it has no objective that seems likely to call into question the judge’s impartiality, effectiveness, or independence. Thus, the concerns raised in 2005-04 by the judge’s service on a municipal crime control and prevention commission are not implicated here. However, the requesting judge should reexamine the propriety of his continued service if the scope of work changes from that set forth in the JCC’s bylaws, particularly as to objectives which could compromise the judge’s neutrality.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 4 generally encourages a judge to engage in quasi-judicial activities so long as the judge’s capacity to decide impartially any issue is not impaired by participation in those activities. Canon 4A encourages a judge to participate in activities concerning the law, the legal system, and the administration of justice, while Canon 4B permits a judge to consult with or appear at a public hearing before an executive or legislative body on such matters. Canon 4C encourages a judge to serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, the judicial branch, or the administration of justice.

Canon 5G provides that a judge should not accept appointment to a governmental committee, commission, or other position that is concerned with fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice.

DISCUSSION

Every board, committee, and commission is different and must be evaluated carefully by the judge involved to determine whether judicial participation is ethically appropriate. Clearly, the commission at issue in this request is a government commission, as was the municipal crime control and prevention commission at issue in 2005-04. As we said in 2005-04, Canon 5G generally constrains a judge from accepting appointment to a government commission concerned with issues of fact or policy unless "the commission is considering matters related to the improvement of the law, the legal system, or the administration of justice." To distinguish between appropriate and inappropriate participation in such commissions, a judge must analyze "the link between service on the commission and improvement of the law, legal system, and administration of justice." We continue to adhere to our position in 2005-04 that there must be a direct link between service on a government commission and the work of the courts, because it reflects our view that Canon 4 must be interpreted narrowly to avoid eroding the prohibition in Canon 5G, which is critical to the independence of the judiciary.

Because of the requesting judge’s specific inquiry as to the application of 2005-04 and discomfort expressed by some judges about that advisory opinion, we analyze the current request by comparing the JCC with the commission at issue in 2005-04. Ultimately, we determine that the purposes and structure of the JCC are sufficiently different from those of the crime control commission at issue in 2005-04 that the concerns expressed in that opinion do not apply to the judge’s service on the JCC.

In 2005-04, we advised that there was not a direct nexus between the work of the municipal crime control and prevention commission and the improvement of the law, legal system or administration of justice, largely because of the commission’s wide-ranging policy goals. The commission’s enabling legislation charged it with reducing crime and increasing neighborhood safety, as well as with generating policy recommendations regarding offender sanctions, jail population management, and the efficient use of jail space, including encouraging alternatives to incarceration such as community corrections. The commission was required to make recommendations on the allocation of crime prevention monies and to seek funding for innovative criminal justice projects and programs. While recognizing that some of these goals broadly implicated the law and the legal system, we did not discern a direct link between other goals and how the courts go about performing their statutory and constitutional duties.

In contrast to the wide-ranging policy-making work of the municipal crime control and prevention commission, the JCC has a more limited scope, focused on facilitating how various segments of the justice system can work together. To this end, its statement of purpose provides that the JCC was established to promote an on-going dialogue among various civil and criminal justice agencies, to provide for a better understanding of the problems these agencies face, and to enhance cooperation among entities and units of government. This coordinating function provides a direct nexus to the law, legal system, and administration of justice because it directly affects how courts go about their work. Thus, we find the direct link test satisfied in this situation and, accordingly, the encouragement of Canon 4, rather than the prohibition of Canon 5G, applies.

In 2005-04, we also advised that even if there was a direct nexus between the work of the crime control and prevention commission and the improvement of the law, the legal system or the administration of justice, nevertheless, a judge should not serve on the commission because such service could call into question the judge’s "impartiality, effectiveness, and independence." The crime control and prevention commission would be making policy recommendations related to offender sanctions, incarceration alternatives, and jail management. We foresaw that "[c]oncerns about a judge’s impartiality and independence invariably will arise when a judge sentences a defendant to incarceration or an alternative pursuant to policies that the judge helped to develop." Likewise, if a judge has been involved in formulating policy on the efficient use of jail space, we were concerned that the judge’s "independence and impartiality will be called into question when the judge makes decisions about jail overcrowding and how to prioritize among inmates." We went on to say that "the commission’s role in soliciting funds for new criminal justice programs and advising how the criminal justice system should spend its money and conduct its operations could give rise to the perception that the judge is aligned with the interests of law enforcement." Given these particular goals and tasks of the municipal crime control and prevention commission, we concluded that the judge’s service on it would improperly "blur the distinction between the branches of government, simultaneously making the judge legislator, advisor to law enforcement, and neutral arbiter, and affecting the public’s perception of the independence of the courts from the executive and legislative branches of government."

In contrast, because the general and neutral purposes of the JCC do not include making policy recommendations, soliciting funds, or suggesting how money should be spent, they do not cast doubt on the requesting judge’s ability to impartially decide issues before him. Given the neutral nature of the objectives of the JCC, we are also less concerned about the composition of the JCC than we were in 2005-04. Although there is no defense attorney among the voting members of the JCC, it is also not weighted in favor of law enforcement interests. Rather, the voting and non-voting members of the JCC reflect a cross-section of persons involved with the courts and the justice system in general. Therefore, because the concerns raised in 2005-04 are not present here, we perceive no impediment to the judge serving on the JCC.

If, however, the work of the JCC expands beyond the purposes outlined in its bylaws, the judge should reexamine the propriety of his continued participation. The judge should be particularly wary of tasks or goals, such as those addressed in 2005-04, that could call his neutrality into question. Expansion of work beyond the JCC’s current goals could be especially problematic if the judge were the committee’s spokesperson.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 2nd day of October 2007. Professor James Wallace does not participate in this opinion.

Barbara Crowfoot (citizen member)
Hon. Martin Foster Egelhoff (judge member)
Daniel S. Hoffman, Esq. (attorney member)
Hon. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Prof. Emeritus James E. Wallace (law professor member)
Hon. John R. Webb (judge member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)


Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2007-11
(Finalized and Effective October 2, 2007)

ISSUE PRESENTED

The requesting judge, who sits on the district court bench in the larger Denver metropolitan area, has long been interested in both public service and domestic relations. In furtherance of these interests, he is considering seeking an appointment to the Colorado Child Support Commission when a vacancy becomes available. The Commission’s function is to review the child support guidelines and recommend changes to the Governor and General Assembly. The judge later would apply these changes to the guidelines, and deviations therefrom, in domestic relations cases assigned to him. The judge notes that the statute governing the Commission provides that the Governor should appoint representatives of the judiciary to the Commission, and that those representatives would serve alongside a member of the Colorado House of Representatives and Senate. The judge has reviewed the board’s previous advisory opinions regarding service on governmental commissions in 2006-06 and 2005-04 and states that he is unable to discern whether membership on the Commission meets the "direct nexus" test. May he serve on the Commission?

CONCLUSION

The judge may accept an appointment to the Colorado Child Support Commission.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 4 generally encourages a judge to engage in quasi-judicial activities so long as his or her capacity to decide impartially any issue that may come before the judge is not impaired by participation in those activities. Canon 4A encourages a judge to "participate in other activities concerning the law, the legal system, [and] the administration of justice." Canon 4B authorizes a judge to "consult with, or appear at a public hearing before, an executive or legislative body, or an official thereof, on matters concerning the law, the legal system, [and] the administration of justice." Similarly, Canon 4C encourages a judge to "serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, the judicial branch or the administration of justice. . . . A judge may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system, and the administration of justice."

Canon 5B encourages a judge to participate in civic activities that do not adversely reflect upon the judge’s impartiality or interfere with the performance of judicial duties. Subsection (1) cautions, however, that a judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.

Canon 5G provides that a judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice.

DISCUSSION

The tension between the encouragement of Canons 4 and 5B, and the prohibitions of Canons 5B(1) and 5G, has been the focus of several of our advisory opinions, including 2005-04, 2006-06, and, in a companion opinion released today, 2007-10. In that companion opinion, we distinguish our conclusion in 2005-04 that a judge’s potential participation in a municipal crime control and prevention commission would be precluded, from our conclusion in 2007-10, in which we determine that a judge is not precluded from participating in a "Justice Coordinating Committee."

As we noted in 2007-10, "[e]very board, committee, and commission is different and must be evaluated carefully by the judge involved to determine whether judicial participation is ethically appropriate." After carefully evaluating the nature of this judge’s potential participation on the Colorado Child Support Commission, we conclude that the judge may participate on the commission.

Our analysis is guided by our discussion in 2007-10. For the sake of brevity, and to avoid potential conflict or confusion between 2007-10 and this opinion, our discussion in this companion opinion is abbreviated. This opinion assumes familiarity with and we refer the reader to 2007-10.

We conclude that there is a direct nexus between the work of the commission and the improvement of the law, the legal system, and the administration of justice. The commission’s charge—reviewing and recommending changes to the child-support guidelines—is very much part of the work of the judiciary within the meaning of 2005-04’s direct-nexus test.

In addition, the request here is distinguishable from the request we considered in 2006-08. There, the requesting judge was asked to lobby and make policy recommendations to the other co-equal branches of government on political matters regarding global climate change outside the expertise and province of the judiciary. By contrast, here the requesting judge is being asked to weigh-in on and consult with the other branches of government on matters with which he has expertise by virtue of his experience as a judge. Accordingly, the judge’s work with the commission in making recommendations to the Governor and legislature is expressly permitted under Canon 4.

The next question thus becomes whether service on the commission would nevertheless call into question the judge’s "impartiality, effectiveness, and independence." See 2007-09, 2005-04. The service contemplated here does not implicate these ethical concerns. There is nothing about the scope or substance of the commission’s work that would call into question the judge’s independence or impartiality. In addition, the composition of the commission here, unlike the commission at issue in 2005-04, does not suggest bias towards one side or another; this commission is composed of a cross-section of interested stakeholders from the judiciary, the Colorado Bar Association, the state department of human services, a director of a county department of social services, the child support liaison to the judicial department, a CPA, and parent representatives, as well as a member of the state house and senate and other interested parties. For these reasons, there is no concern that the commission is impermissibly weighted in favor of one group; as the concerns outlined in 2005-04 are not present here, we perceive no obstacle to the judge’s serving on the commission.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 2nd day of October 2007. Professor James Wallace does not participate in this opinion.

Barbara Crowfoot (citizen member)
Hon. Martin Foster Egelhoff (judge member)
Daniel S. Hoffman, Esq. (attorney member)
on. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Prof. Emeritus James E. Wallace (law professor member)
Hon. John R. Webb (judge member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)


United States District Court for the District of Colorado

In the Matter of Local Rules of Practice
for the U.S. District Court, District of Colorado
General Order 2007-1

Pursuant to 28 U.S.C. § 2071, Fed. R. Civ. P. 83 and Fed. Crim. P. 57, it is

ORDERED that the attached Local Rules of Practice of the United States District Court for the District of Colorado—Civil, as amended, and Local Rules of Practice of the United States District Court for the District of Colorado—Criminal, as amended, are adopted to become effective on January 1, 2008 and will, so far as practicable, govern all civil and criminal proceedings in this court.

[Note: U.S. District Court Local Rules of Procedure are available on the court website at http://www.co.uscourts.gov/Dindex.htm.]

Dated this 25th of October 2007 at Denver, Colorado

By the Court:

Edward W. Nottingham, Chief Judge
Lewis T. Babcock, Judge
Wiley Y. Daniel, Judge
Walker D. Miller, Judge
Marcia S. Krieger, Judge
Robert E. Blackburn, Judge
Phillip S. Figa, Judge

© 2007 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2007.


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