1973, August, Pg. 25. ETHICS.

2 Colo.Law. 25

The Colorado Lawyer

1973.

1973, August, Pg. 25.

ETHICS

25Vol. 2, No. 10, Pg. 25ETHICSIn executing a search warrant, the police seized 16,000 tablets which a field test conducted by a policeman indicated were LSD. Two men were arrested and both were charged with possession with intent to dispense LSD and with conspiracy to possess LSD. The possession charge is punishable by a sentence of one to fourteen years in the state penitentiary; the charge of conspiracy is punishable by a sentence of one to ten years in the state penitentiary.

One of the defendants, after plea bargaining, pleaded guilty to the conspiracy charge, and the charge of possession with intent to dispense against him was dismissed. The other defendant fled from the state but was re-arrested and returned to the state. The public defender, who had represented the first defendant and also represented the second defendant, then asked the district attorney whether the same bargain with respect to a plea could be made for the second defendant as had been made for the first defendant.

Thereupon, the district attorney re-evaluated the evidence in the case and learned that the 16,000 tablets which had been seized in the search had apparently been destroyed by the police. The district attorney further learned that the pills had never been analyzed by a chemist and that no other evidence identifying the supposed drugs was available.

Upon learning these facts and in view of difficulties with respect to placing the results of the field test into evidence, the district attorney informed the public defender and the judge of the lack of sufficient evidence to convict the second defendant, and then dismissed the charges against him without prejudice and with leave to file a complaint within six months if sufficient evidence of the crime could be obtained. The district attorney inquires with respect to the propriety of his action.

OpinionThe inquiry of the district attorney raises the question of whether a prosecuting attorney, who learns during the course of plea bargaining that there is not sufficient evidence to convict a defendant of the charges which have been made against the defendant, has any duty to disclose that fact to the defendant or his counsel. In those situations where a prosecuting attorney learns of the existence of evidence which tends to negate the guilt of the defendant, mitigate the degree of the offense, or reduce the punishment which might be imposed against the defendant, there is a...