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TCL > August 2010 Issue > Court Business

The Colorado Lawyer
August 2010
Vol. 39, No. 8 [Page  157]

© 2010 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts

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 (deletios and additions). Material printed in Court Business appears as submitted by the Court and has not been edited by the staff of The Colorado Lawyer.


Colorado Supreme Court Rules Committee

Rule Change 2010(10)
Colorado Rules of Civil Procedure
Amended

Rule 47. Jurors.

(a) Orientation and Examination of Jurors.

(1)–(4)[No change]

(5) Once the jury is impaneled, the judge will again explain in more detail the general principles of law applicable to civil cases, the procedural guidelines regarding conduct by jurors during the trial, case specific legal principles and definitions of technical or special terms expected to be used during the presentation of the case. Jurors shall be told that they may not discuss the case with anyone until the trial is over with one exception: jurors may discuss the evidence among themselves in the jury room when all jurors are present. Jurors shall also be told that they must avoid discussing any potential outcome of the case and must avoid reaching any conclusion until they have heard all the evidence, final instructions by the court and closing arguments by counsel. The trial court shall have the discretion to prohibit or limit pre-deliberation discussions of the evidence in a particular trial based on a specific finding of good cause reflecting the particular circumstances of the case.

(b)(t) [No change]

(u) Juror Questions. Jurors shall be allowed to submit written questions to the court for the court to ask of witnesses during trial, in compliance with procedure established by the trial court. The trial court shall have the discretion to prohibit or limit questions in a particular trial based on a specific finding of good cause reflecting the particular circumstances of the case.

Amended by the Court, en banc, June 7, 2010, effective immediately.

Justice Coats and Justice Eid would not approve the amendments.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court

________________________________________________

Rule Change 2010(11)
Appendix A to Chapter 27—Colorado Probate Code Forms
Amended and Adopted

Amended Forms

JDF 721: Irrevocable Power of Attorney Designating Clerk of Court as Agent for Service of Process

JDF 805: Acceptance of Office

JDF 841: Petition for Appointment of Guardian for Adult

JDF 857: Petition for Appointment of Co-Guardian or Successor Guardian

JDF 862: Order Appointing Conservator for Minor

JDF 876: Petition for Appointment of Conservator for Adult

JDF 878: Order Appointing Conservator for Adult

JDF 879: Petition for appointment of Co-Conservator or Successor Conservator

JDF 883: Order Regarding Conservator’s Financial Plan

JDF 912: Renunciation and/or Nomination of Personal Representative

JDF 940: Information of Appointment

JDF 941: Decedent’s Estate Inventory

JDF 999: Collection of Personal Property by Affidavit

New Forms

JDF 733: Motion for Release of Trust Registration Statement

JDF 734: Order to Release Trust Registration Statement

(Forms in this Appendix are available online at www.courts.state.co.us/Forms/Index.cfm.)

Amended and Adopted by the Court, en banc, June 7, 2010, effective immediately.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court

________________________________________________

Rule Change 2010(12)
Colorado Rules of Criminal Procedure
Amended

Rule 43. Presence of the Defendant.

(a)–(d) [No change]

(e) Presence of the Defendant by Interactive Audiovisual Device.

(l) Definitions. As used in this Rule 43:

(I) "Interactive audiovisual device" means a television audiovisual system capable of two-way transmission and of sufficient audio and visual quality that persons using the system can view and converse with each other with a minimum of disruption.

(2) A defendant may be present within the meaning of this Rule 43 by the use of an interactive audiovisual device, in lieu of the defendant’s physical presence, for the following hearings:

(I) First appearances pursuant to Crim.P. 5, for the purpose of advisement and setting of bail;

(II) Further appearances for the filing of charges or for setting the preliminary hearing;

(III) Hearings to modify bail;

(IV) Entry of pleas and associated sentencing hearings in misdemeanor, petty offense, and traffic cases where the offense charged is not included within those offenses enumerated in C.R.S. 24-4.1-302 (I).

(3) Minimum standards. Every use of an interactive audiovisual device must comply with the following minimum standards in addition to those set forth in Crim.P. 43(e)(l):

(I) If defense counsel appears, such appearance shall be at the same physical location as the defendant if so requested by the defendant. If defense counsel does not appear in the same location as the defendant, a separate confidential communication line, such as a phone line, shall be provided to allow for private and confidential communication between the defendant and counsel.

(II) No defendant shall be compelled to appear by interactive video device at a hearing pursuant to subsection (e)(2)(III)of this rule.

(III) Installation of the interactive audiovisual device in the courtroom shall be done in such a manner that members of the public are reasonably able to observe, and, where appropriate, participate in the hearing.

(IV) Any hearing held pursuant to Crim.P. 43(e)(2)(IV) shall be conducted with the written consent of the defendant. The court shall advise a defendant of the following prior to obtaining a defendant’s written consent and prior to any plea discussions being conducted:

(a) The rights enumerated in Crim.P. 5(2).

(b) The defendant has the right to appear in person and will not be prejudiced if he chooses to do so.

(c) The defendant has the right to have his or her counsel appear with him or her at the same physical location.

(d) The defendant’s decision to appear by use of an interactive audiovisual device is voluntary on the defendant’s part and is notthe result of undue influence or coercion on the part of anyone.

(e) If the defendant is pro se, the identity and role of all individuals with whom the defendant may have contact with through the interactive audiovisual device.

(V) An interactive audiovisualsystem used for hearings pursuant to Crim.P. 43(e)(2)(IV) shall include the ability to electronically transfer documents between the defendant and the court and such transferred documents shall be considered the same as originals.

(4) Nothing in this rule shall require a court to use an interactive audiovisual device.

(5) In the event of inclement weather or other exceptional circumstances, which would otherwise prevent a hearing from occurring under Crim.P. 5, the court may conduct the hearing by use of an interactive audiovisual procedure which does not comply with the minimum standards set forth in subsection (3).

Amended by the Court, en banc, June 17, 2010, effective immediately.

By the Court:

Alex J. Martinez
Justice, Colorado Supreme Court

________________________________________________

RuleChange 2010(13)
Colorado Rules of Professional Conduct
Amended and Adopted

Colo.RPC 3.8. Special Responsibilities of a Prosecutor.

(a)–(f) [No change]

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable probability that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall within a reasonable time:

(1) disclose that evidence to an appropriate court or prosecutorial authority, and

(2) if the judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority

(A) disclose the evidence to the defendant, and

(B) if the defendant is not represented, move the court in which the defendant was convicted to appoint counsel to assist the defendant concerning the evidence.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted in a court in which the prosecutor exercises prosecutorial authority, of an offense that the defendant did not commit, the prosecutor shall take steps in the appropriate court, consistent with applicable law, to set aside the conviction.

COMMENT

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence and that special precautions are taken to prevent and to address the conviction of innocent persons. The extent of mandated remedial action is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Competent representation of the sovereign may require a prosecutor to undertake some procedural and remedial measures as a matter of obligation. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

[2] and [3] [No change]

[3A] A prosecutor’s duties following conviction are set forth in sections (g) and (h) of this rule.

[4]–[6] [No change]

[7] When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a person outside the prosecutor’s jurisdiction was convicted of a crime that the person did not commit, paragraph (g) requires disclosure to the court or other prosecutorial authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented defendant must be made through the defendant’s counsel, and, in the case of an unrepresented defendant, the prosecutor must take the affirmative step of making a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate.

[7A] What constitutes "within a reasonable time" will vary according to the circumstances presented. When considering the timing of a disclosure, a prosecutor should consider all of the circumstances, including whether the defendant is subject to the death penalty, is presently incarcerated, or is under court supervision. The prosecutor should also consider what investigative resources are available to the prosecutor, whether the trial prosecutor who prosecuted the case is still reasonably available, what new investigation or testing is appropriate, and the prejudice to an ongoing investigation.

[8] Under paragraph (h), once the prosecutor knows of clear and convincing evidence that the defendant was convicted of either an offense that the defendant did not commit or of an offense that involves conduct of others for which the defendant is legally accountable (see C.R.S. § 18-1-601 et seq. and 18 U.S.C. § 2), but which those others did not commit, then the prosecutor must take steps in the appropriate court. Necessary steps may include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted.

[8A] Evidence is considered new when it was unknown to a trial prosecutor at the time the conviction was entered or, if known to a trial prosecutor, was not disclosed to the defense, either deliberately or inadvertently. The reasons for the evidence being unknown (and therefore new) are varied. It may be new because: the information was not available to a trial prosecutor or the prosecution team at the time of trial; the police department investigating the case or other agency involved in the prosecution did not provide the evidence to a trial prosecutor; or recent testing was performed which was not available at the time of trial. There may be other circumstances when information would be deemed new evidence.

[9] A prosecutor’s reasonable judgment made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (g) and (h), although subsequently determined to have been erroneous, does not constitute a violation of this Rule.

[9A] Factors probative of the prosecutor’s reasonable judgment that the evidence casts serious doubt on the reliability of the judgment of conviction include: whether the evidence was essential to a principal issue in the trial that produced the conviction; whether the evidence goes beyond the credibility of a witness; whether the evidence is subject to serious dispute; or whether the defendant waived the establishment of a factual basis pursuant to criminal procedural rules.

ANNOTATION

[No change]

Amended and adopted by the Court, en banc,June 17, 2010, effective July 1, 2010.

By the Court:

Michael L. Bender
Justice, Colorado Supreme Court

Nathan B. Coats
Justice, Colorado Supreme Court

________________________________________________

RuleChange 2010(14)
Colorado Rules of Criminal Procedure
Amended and Adopted

Rule 1. Public Access to Records and Information.

[No change]

Rule 2. Media Coverage of Court Proceedings

(a) Expanded Media Coverage: A judge may authorize expanded media coverage of court proceedings, subject to the guidelines set forth below.

(1) Definitions. As used in this section, unless the context otherwise requires:

(A) "Proceeding" means any trial, hearing, or any other matter held in open court which the public is entitled to attend.

(B) "Photograph" and "photography" means all recording or broadcasting of visual images, by means of still photographs, videotape, television broadcasts, motion pictures, or otherwise.

(C) "Expanded media coverage" means any photography or audio recording of proceedings.

(D) "Judge" means the justice, judge, magistrate, or other judicial officer presiding over the proceedings. In proceedings with more than one judge presiding, any decision required shall be made by a majority of the judges.

(E) "Media" means any news gathering or reporting agency and the individual persons involved, and includes newspapers, radio, television, radio and television networks, news services, magazines, trade papers, in-house publications, professional journals, or any other news reporting or news gathering agency whose function it is to inform the public or some segment thereof.

(2) Standards for Authorizing Coverage. In determining whether expanded media coverage should be permitted, a judge shall consider the following factors:

(A) Whether there is a reasonable likelihood that expanded media coverage would interfere with the rights of the parties to a fair trial;

(B) Whether there is a reasonable likelihood that expanded media coverage would unduly detract from the solemnity, decorum and dignity of the court; and

(C) Whether expanded media coverage would create adverse effects which would be greater than those caused by traditional media coverage.

(3) Limitations on Expanded Media Coverage. Notwithstanding an authorization to conduct expanded media coverage of a proceeding, there shall be no:

(A) Expanded media coverage of pretrial hearings in criminal cases, except advisements and arraignments;

(B) Expanded media coverage of jury voir dire;

(C) Audio recording or "zoom" close-up photography of bench conferences;

(D) Audio recording or close-up photography of communications between counsel and client or between co-counsel;

(E) Expanded media coverage of in camera hearings;

(F) Close-up photography of members of the jury.

(4) Authority to Impose Restrictions on Expanded Media Coverage. A judge may restrict or limit expanded media coverage as may be necessary to preserve the dignity of the court or to protect the parties, witnesses, or jurors. A judge may terminate or suspend expanded media coverage at any time upon making findings of fact that: (1) rules established under this Rule or additional rules imposed by the judge have been violated; or (2) substantial rights of individual participants or rights to a fair trial will be prejudiced by such coverage if it is allowed to continue.

(5) Conditions for Coverage. Expanded media coverage shall be conducted only under the following conditions:

(A) Equipment Limitations.

(i) Video. Only one person at a time shall be permitted to operate a videotape, television, or motion picture camera. There shall be only one such camera at a time in the courtroom, except that, at the discretion of the judge, the camera operator may have a second camera. The camera operator may use a tripod, but shall not change location while court is in session.

(ii) Audio. The court’s audio system shall be used if technically suitable and, in that event, there must be no interference with the court’s use of its system. If the court’s system is not technically suitable, then the person conducting expanded media coverage may install an audio recording system at his or her own expense upon first obtaining approval of the judge. All microphones and related wiring shall be unobtrusive and shall not interfere with the movement of those in the courtroom.

(iii) Still Cameras. Only one person at a time shall be permitted to operate still cameras, which shall make as little noise as possible. The still photographer may use a tripod, but shall not change location while court is in session.

(iv) Lighting. No movie lights, flash attachments, or sudden lighting changes shall be permitted during a proceeding. No modification or addition of lighting equipment shall be permitted without the permission of the judge.

(v) Operating Signals. No visible or audible light or signal (tally light) shall be used on any equipment.

(B) Pooling Arrangements. The media shall be solely responsible for designating one media representative to conduct each of the categories of expanded media coverage listed in subsection (I) of this section, and for arranging an open and impartial distribution scheme with a distribution point located outside of the courtroom. If no agreement can be reached on either of these matters, then there shall be no expanded media coverage of the type for which no pooling agreement has been made. Neither judges nor other court personnel shall be called upon to resolve any disputes concerning such pooling arrangements.

(C) Conduct of Media Representatives. Persons conducting expanded media coverage shall conduct themselves in a manner consistent with the decorum and dignity of the courtroom. The following practices shall apply:

(i) Equipment employed to provide expanded media coverage shall be positioned and operated so as to minimize any distraction;

(ii) Identifying marks, call letters, logos, symbols, and legends shall be concealed on all equipment. Persons operating such equipment shall not wear clothing bearing any such identifying information;

(iii) Equipment used to provide expanded media coverage shall not be placed in, or removed from, the courtroom while court is in session. No film, videotape, or lens shall be changed within a courtroom while court is in session.

(6) Procedures. The following procedures shall be followed in obtaining authorization for expanded media coverage:

(A) Request for Expanded Media Coverage. A written request shall be submitted to the judge at least one day before expanded media coverage is requested to begin, unless a longer or shorter time is required or permitted by the judge. Copies of the request shall be given to counsel for each party participating in the proceeding. The request shall include the following:

(i) The name, number, date and time of the proceeding;

(ii) The type (audio, video or still photography) of expanded media coverage requested and a description of the pooling arrangements required by section (e)(II), if any, including the identity of the designated representatives.

(B) Objections. Any party or witness may lodge with the judge a written objection to expanded media coverage of all or a portion of a proceeding.

(C) Judicial Authorization. The judge shall rule on a request or objection within a reasonable time prior to the proceeding or promptly after the request or objection if the proceeding has begun. The ruling shall be made on the record and the reasons therefore set forth briefly.

(D) The media or any witness may not appeal, or seek review by original proceeding, the granting or denial of expanded media coverage. A party to the case may seek review of a ruling by original proceeding, if otherwise appropriate, or by post-trial appeal.

(b) Other use of Media.

(1) A judge may authorize the use of electronic or photographic means for the perpetuation of a record, or for purposes of judicial administration.

(2) A judge may authorize the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings.

Amended and adopted by the Court, en banc, June 24, 2010, effective July 1, 2010.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court


Colorado Judicial Department
Chief Justice of the Supreme Court Directives

Notice of Availability

Chief Justice Directives (CJDs) are available online at www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm. The website lists CJDs by date and allows users to search by topic. Hard copies of the CJDs are available for $.25 per page (approximately $125 for a full set) and may be obtained by contacting the Colorado Office of the State Court Administrator, 1301 Pennsylvania St., Ste. 300, Denver, CO 80203.

Publication in The Colorado Lawyer

CJDs will be published on a space-available basis in this "Court Business" section of The Colorado Lawyer. Attachments may be omitted for space reasons. To obtain a copy of attachments, contact: Court Services Division, Colorado Office of the State Court Administrator, 1301 Pennsylvania St., Ste. 300, Denver, CO 80203; or visit www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm.

________________________________________________

CJD 07-02

Continuation of Pilot Project to Provide Authority to District Court Magistrates in the Second Judicial District
Sitting in the Specialized Court to Impose Sentences to Probation on Felony Matters

Amended and Adopted

Whereas, the judicial officer assigned to the specialized drug court is a district court magistrate, under the supervision of the chief judge of the district court. The authority of the district court magistrate includes the ability to take pleas, impose terms of deferred sentences, and impose sentences on persons convicted of misdemeanor offenses; and

Whereas, the specialized court is designed to adjudicate cases meeting certain criteria within days of arrest at the second appearance date where defendants have counsel, have reviewed police reports, and have been offered a plea agreement; and

Whereas, in some percentage of the cases assigned to this specialized court, defendants will be offered plea bargains which include a plea to a felony offense with a sentence to probation stipulated to by the prosecution and the defendant, and this sentence, if imposed by the court, would be imposed immediately upon the plea without the necessity of conducting a presentence investigation; and

Whereas, the judicial officer retains authority to reject a stipulated sentence at which time the case would no longer be processed in the specialized court; and

Whereas, because providing authority to impose sentences to probation by agreement of the parties would reduce unnecessary case processing and reduce delay; and

Whereas, current rules of the Supreme Court concerning the authority of district court magistrates do not allow for the imposition of a sentence in a felony case,

NOW THEREFORE, the court orders that district court magistrates assigned to the specialized docket and hearing matters assigned to that docket as part of the specialized docket be permitted, with consent of the parties, to impose probation with the agreement of the parties following a guilty plea to a felony offense.

The temporary order entered pursuant to this Chief Justice Directive is continued until December 31, 2010. The 2nd Judicial District Court is ordered to consider the changes to the Denver Drug Court over the past three years including the discontinuation of the partnership with Denver County Court and the need to incorporate the drug court completely into Denver District Court, including the participation of District Court Judges in the court process.

The order expires December 31, 2010.

CJD 07-02 is amended and adopted effective March 1, 2010. This order is nunc pro tunc to the March 1, 2010 date.

Done at Denver, Colorado this 28th day of May 2010.

By the Court:

Mary J. Mullarkey
Chief Justice, Colorado Supreme Court


U.S. Bankruptcy Court for the District of Colorado

General Procedure Order Number 2010-1
In the Matter of Adoption of Revisions to Certain Local Bankruptcy Rules and Forms

Pursuant to 28 U.S.C. § 2071, Rule 83 of the Federal Rules of Civil Procedure and Rule 9029 of the Federal Rules of Bankruptcy Procedure this General Procedure Order is adopted to make revisions to certain Local Bankruptcy Rules (L.B.R.) and Local Bankruptcy Forms (L.B.Forms) pending their formal adoption. The following are the L.B.R. and L.B. Forms that are modified with the attached exhibit setting forth the detail of the revisions:

L.B.R. 1009-1(c) Amendments to Lists & Schedules;

L.B.R. 1017-3(a)(5) Dismissal or Suspension–Case or Proceeding (Failure to File Documents and the UST’s Standing Motion to Dismiss

L.B.R. 1004-1(a) Depositions and Examinations

L.B.R. 2016-3(c) Compensation of Chapter 13 Debtor’s Counsel

L.B.R. 2081-3 (Commentary) Chapter 11—Motions to Dismiss or Convert

L.B.R. 3015-1(3) (Commentary) Filing of Chapter 13 Plan

L.B.R. 4001-1(a)(4) and (a)(5) Relief from Automatic Stay

L.B.R. 4008-1(b)(2) Reaffirmation of Dischargeable Debts

L.B.R. 9013-2 Certificate of Service—Motions

L.B.R. 9019-2(a) Alternative Dispute Resolution

L.B.Form 3003-1.1 Order establishing Bar Date for Filing Proofs of Claim

L.B.Form 3003-1.3 Notice of Order Establishing Procedures and Bar Date for the Filing of Proofs of Claim

L.B.Form 3015-1.1(Commentary) Chapter 13 Plan

L.B.Form 3015-1.2 Notice of Filing of Chapter 13 Plan, Deadline for Filing Objections Thereto, and Hearing on Confirmation

L.B.Form 3015-11 Chapter 13 Debtor’s Certification to Obtain Discharge

L.B.Form 3015-1.12 Order on Chapter 13 Debtor’s Certification to Obtain Discharge

ORDERED that commencing July 1, 2010, the afore referenced revisions to the L.B.R.s and L.B.Forms described in the attached document are adopted for use. [See www.cob.uscourts.gov for attachments.]

Dated: 7/1/2010

By the Court:

Howard R. Tallman, Chief Judge
Sidney B. Brooks, Judge
Elizabeth E. Brown, Judge
A. Bruce Campbell, Judge
Michael E. Romero, Judge

© 2010 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=2010.


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