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Charged With A Crime?

Mar 22

Does A Colorado Criminal Defendant Have A Right To Search The Alleged Victim’s Home For Evidence Of Innocence?

By H. Michael Steinberg – Colorado Sex Crimes Criminal Defense Lawyer – Attorney

Does A Colorado Criminal Defendant Have A Right To Search The Alleged Victim’s Home For Evidence Of Innocence? In 2015 the Colorado Court of Appeals answered this question – yes but it’s “complicated.”

In the case of People in the Interest of E.G., 2015COA18 (decided February 26, 2015), a juvenile charged with a sex crime demanded to search the so called “scene of the crime” – that is his grandmother’s home where the alleged sex assaults took place.

The trial judge ruled – as most judge’s believe – that he could not order – had no authority to order – a “non-party” (a private person uncharged to the case) – to make her home available to the Defendant’s team.

The Ruling – Defendant’s Can Search Alleged Crime Scenes – Sometimes

“[A] trial court has the authority to allow discovery of a crime scene to the defense, even if the discovery implicates constitutionally-protected privacy rights of a non-party, provided that the defendant’s justification for the information, which derives from his constitutional rights to due process and to present a defense, outweighs the privacy interests.”

But in this case the Defendant could not meet the necessary standard to support the search. The question then arises – what kind of showing is needed before a judge can order the search of a third party’s home?

What Is Necessary To Gain Access To A Private “Scene Of The Crime?”

The form of the request takes the form of a motion requesting court-ordered access to the crime scene. This is a form of “discovery” in a criminal case. Since a defendant has a constitutional right to present evidence on his behalf and to confront adverse witnesses the right of a Defendant to compel material evidence from private third parties, does exist – but it – as noted above – is subject to certain limitations.

Colorado Court’s HAVE Allowed Defense Teams To Cross Into The Due Process Rights of Non-Party – Private Persons In The Past

So called “intrusions” into the rights of private persons by the criminally accused has been permitted in other kinds of cases and under different factual circumstances:

Some Examples Include:

A Court can order a victim in a sexual assault case to undergo an involuntary psychological or physical examination, (provided that the defendant’s need to discover the information outweighs the victim’s privacy interests.)

A child’s confidential educational records can be “discovered” by the defense with an adequate showing of the defendant’s need for the evidence.

Pretrial discovery subpoenas can be issued – even for privileged, confidential, or otherwise private materials in the hands of third parties – provided that there is a balancing of interests and the defendant makes a sufficient showing of need for the disclosure of material information.

The disclosure of third-party blood donors’ records can be disclosed in a limited discovery procedure that discloses the records but also protects donors’ privacy.

Records Can Be Subpoenaed – But Real Estate – Such As Crime Scenes Are Not Mobile

The Court cannot practically order a private person to bring their home or business into the courtroom. Therefore p this case breaks new ground in setting up the kind of evidentiary showing needed to gain access to a private person’s property.

A Defendant’s right to inspect an alleged crime scene does in fact implicate concepts of fundamental fairness and due process.

Why Is This An Important Case For The Defense Of A Colorado Case – Such As A Sex Crime Charge?

The reason this is such an important case and has made national headlines – is that Colorado now joins a minority of states that permit Defendant initiated searches of private property more tips here. This kind of search can yield massive benefits to the defense of a Colorado criminal case – (see below). But first you have to hurdle some red tape..

We therefore hold that a trial court may authorize access to a crime scene to the defense, even if such access implicates constitutionally-protected privacy rights of a non-party, provided that the defendant’s justification for the information outweighs any privacy interests.

1. The test is this – “to obtain access, the defendant must demonstrate that the evidence desired is relevant, material, and necessary to the defense. The Trial Court then balances the Defendant’s proffered justification as against the rights and legitimate interests of the non-party person.”

2. The showing must establish that the search “would yield relevant material evidence, not already provided, necessary for the preparation of the defense case.”

3. The Motion cannot “have the objective of causing intimidation, harassment, or abuse.”

4. The Defendant must show a “compelling need” test to a Defendant’s discovery request.

The Motion To Search Or To Otherwise Access Another’s Private Property Must Be SPECIFIC

In the In Re: E.G. case – the Defendant failed to meet the standards necessary. His defense lawyer failed to demonstrate that the inspection of the crime scene would yield relevant material evidence necessary to present his defense nd to demonstrate specifically how accessing the crime scene would produce material and relevant evidence not otherwise provided to him from another source.

The Motion was general – provided no specific evidentiary purpose for which he needed this evidence to present his defense at trial. And “failed to elaborate as to why viewing, photographing, or sensing the crime scene was essential to the defense trial strategy.”

The Motion To Search The Crime Scene Must:

  1. Articulate a specific need for the information requested to outweigh privacy interests.
  2. Must not be too general and speculative and there must be some showing that the requested intrusion is relevant and material to the defense to demonstrate his need for access to a crime scene controlled by a private third party.

How Would Such A Search Be Accomplished Procedurally?- The Colorado Court Of Appeals Defers This Question

Because the Trial Court denied the Motion and the Court of Appeals found the Motion lacking in specificity and therefore no search was permitted… issues as to the procedure to be followed to give the private person the right to notice and the opportunity to be heard regarding access to the crime scene by the defense is not addressed in the decision.

There was an indication by the Court that the procedure to be followed would be similar to the issue in other kinds of cases – involving the issuance of third party subpoenas to produce evidence, a request to inspect, a hearing and then a Court Orfder granting access to the property.

Last Issue – What Evidence Could You Search For – How Might That Evidence Help The Defense Case?

The types of evidence in a criminal trial that can be developed at the crime scene – evidence that was missed by the police during their search – is endless.

Evidence in this context can consist of:

    • Computer or Digital Evidence
    • Documentary Evidence – (Writings such as diaries, journals, letters and even e-mails).
    • Every Type of Physical Evidence (can be used to “rule out” the Defendant and include other suspects).
    • Fingerprints
    • Blood DNA
    • Blood Splatters Evidence
    • Hair Strand (for possible DNA testing – hair follicle must be intact). -Color of a hair strand to rule out the Defendant.
    • Skin (DNA)
    • Semen (In Rape cases)
    • Shoe Prints
    • Photographs of the Scene
    • Ballistics ( casings, gun powder, bullets)

Does A Colorado Criminal Defendant Have A Right To Search The Alleged Victim’s Home For Evidence Of Innocence?

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Never stop fighting – never stop believing in yourself and your right to due process of law.

 ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You must make a responsible choice for a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 30 plus years – H. Michael has mastered nearly every area of criminal law, procedure and trial and courtroom practice and he is passionate about getting you the best result in your case. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article – – helps you in some small way. He hopes this article makes your case more understandable to you as regards the topic of this article:- Does A Colorado Criminal Defendant Have A Right To Search The Alleged Victim’s Home For Evidence Of Innocence?

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Article Name
Does A Colorado Criminal Defendant Have A Right To Search The Alleged Victim’s Home For Evidence Of Innocence?
Does A Colorado Criminal Defendant Have A Right To Search The Alleged Victim’s Home For Evidence Of Innocence? In 2015 the Colorado Court of Appeals answered this question - yes but it’s "complicated."

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