Chapter 1 - § 1.9 • DISCOVERY AND DISCLOSURE

• Jurisdiction: Colorado

§ 1.9 • DISCOVERY AND DISCLOSURE

§ 1.9.1—Summary

Pretrial discovery is regulated by Crim. P. 16 and by constitutional due process requirements. Rule 16 sets out in some detail the information that the prosecution must disclose to the defendant, the information that the defendant must disclose to the prosecution, and the process by which these disclosures should occur. Additionally, the disclosure by the prosecution of "exculpatory" evidence is mandated by the constitution. Discovery should occur in most cases without the need for intervention by the trial court, but the parties may seek additional discovery or disclosure by motion.

The discovery rules in criminal cases in Colorado state courts are "designed to further the truth-seeking process" and to "promote fairness in the criminal process by reducing the risk of trial by ambush." Lanari v. People, 827 P.2d 495, 499 (Colo. 1992). The rules are also designed to promote the full and efficient discovery of information by the defense from the prosecution and the disclosure of limited information by the defense to the prosecution. Discovery of relevant information should occur well in advance of trial and without the need for involvement by the court. This is a significant change from the common law process, when trials often were games of "blind man's bluff." For the most part, the discovery process works as intended, but it is not unusual for the trial court to be called upon to resolve a dispute about whether certain material is discoverable and whether the discovery process has been complied with.

Most prosecutors maintain an open file policy, allowing the defendant or defense counsel to make a copy of everything in the prosecutor's file. The prosecutor's work product is, of course, exempted from this process. People v. Ullery, 964 P.2d 539 (Colo. App. 1997), aff'd in part and rev'd in part on other grounds, 984 P.2d 586 (Colo. 1999); People v. District Court, 790 P.2d 332 (Colo. 1990). It is not necessary, under the rule, for either the prosecution or the defense to file a motion for discovery, but many defense lawyers routinely do so anyway. Prosecutors and defense counsel should have established systems in place to show when, where, and by whom discovery was obtained.

Many county courts routinely impose a discovery order setting out deadlines by which discovery or disclosure should be completed. The court may also wish to enter an order designed to ensure that defense counsel is notified when new discovery is received by the prosecution. Prosecutors have an ethical obligation to provide discovery — or, at least, exculpatory discovery — in as timely a fashion as possible. In re Attorney C, 47 P.3d 1167 (Colo. 2002).

Defense counsel may file a motion seeking additional discovery. It may be that there are discoverable materials that do not appear in the prosecutor's file, so that copying the prosecutor's files is inadequate. For example, the defendant is generally entitled to all police reports pertaining to the charge under Crim. P. 16(I)(a)(1)(I), regardless of whether the police have sent those reports to the prosecutor. The prosecutor is charged with the obligation of obtaining those reports under Crim. P. 16(I)(a)(3). If necessary, the court should order the prosecution to obtain this sort of discovery. Similarly, upon request and order, the prosecutor has the obligation to make good faith efforts to obtain materials held by other government personnel. Crim. P. 16(I)(c).

Sometimes the right of defense counsel to the requested discovery is less clear than in the above example. Crim. P. 16(I)(d), after listing specific sorts of materials that must be disclosed by the prosecution, gives the trial court discretion to order the disclosure of other materials that, while not specifically covered by the rule, are relevant. The determination of whether to order disclosure of potential evidence is within the sound discretion of the trial court and is entitled to strong deference. People v. Vigil, 729 P.2d 360 (Colo. 1986). A trial court may conduct an in camera review of evidence to determine whether it is discoverable. Crim. P. 16(III)(f); McDonald v. Wise, 769 F.3d 1202, 1216-17 (10th Cir. 2014); In re District Court, 256 P.3d 687 (Colo. 2011); Stone v. State Farm Mut. Auto. Ins. Co., 185 P.3d 150 (Colo. 2008); People v. Monroe, 925 P.2d 767 (Colo. 1996); People v. Walker, 666 P.2d 113 (Colo. 1983); Martinelli v. District Court, 612 P.2d 1083 (Colo. 1980). The trial court must balance the interests of the parties with confidentiality issues and the difficulty of obtaining the requested information.

The cost of discovery sometimes becomes an issue. In People v. Trujillo, 114 P.3d 27 (Colo. App. 2004), the court of appeals held that when a defendant seeks access to internal affairs records, the trial court should conduct its in camera review of those records and assess costs against the defendant to be charged only for discoverable materials.

§ 1.9.2—Constitutionally Required Discovery

The constitutions of the United States and the State of Colorado require that certain "exculpatory" information be provided to the defense. Brady v. Maryland, 373 U.S. 83 (1963); People ex rel. E.G., 2016 CO 19, ¶ 30; People v. District Court, 790 P.2d 332, 337 (Colo. 1990).

Whether information is "exculpatory" and therefore "material" in the constitutional sense under Brady is measured by the following standard: "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding...