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Apr 22

Colorado Social Services Records and Sex Crimes Defense Law

By Colorado Sex Crimes Defense Lawyer – H. Michael Steinberg

Colorado Social Services Records and Sex Crimes Defense Law – In a recent 2013 case handed down from the Colorado Court of Appeals – a Sexual Assault case was reversed because of a failure of the judge to permit the parties to access social service records pertaining to the prior alleged abuse of the victims in the case.

Colorado Social Services Records and Sex Crimes Defense Law

Colorado Social Services Records and Sex Crimes Defense Law

The case is important because it addresses the issue of access to otherwise confidential records that could assist in the defense of Colorado sex crimes charges that mandate indeterminate life sentences.

The Facts:

The Defendant, Theodore Herrera, appealed the lower court conviction for two counts of sexual assault on a child and two counts of sexual assault-pattern of abuse.

Colorado’s Rape Shield Law

Aware of the existence of social service records that might form the basis for a defense – and prior to the trial, the defense filed a motion under the rape shield statute, section 18-3-407, C.R.S

The analysis of this case is important as it gives guidance to Colorado criminal defense lawyers on the obligations of the prosecution to disclose evidence that points to the innocence of the accused in a Colorado sex crime case.

The rape shield motion requested leave of the Court to admit evidence of the victim’s prior allegations of sexual assault. The trial court ordered the DA to disclose any information regarding known, false allegations of or investigations concerning sexual assault of the victim.

The prosecutor had information that the alleged victim had made prior allegations of sexual assault which were likely reported in her social services records.

The prosecutor obtained the records and gave them to the judge – asking the judge to determine which records should be released to the defense – per the standard procedures and protocols in this areas. The judge’s review of the records is called an “in camera” review.

The judge refused to perform the review!

Colorado Law On The Camera Review of Social Services Records

On appeal after the lower court’s decision – the Colorado Court of Appeals held that the trial court abused its discretion by:

“…. denying the requests made by both him and the People to conduct an in camera review of the social services records to determine whether they contained information material to his case that should have been disclosed prior to trial.

..The … requisite threshold showing that in camera review of the records was necessary and (the defendant) joined in this request, we conclude that the trial court abused its discretion, and we remand the case for in camera review of the records.”

Here’s Why.. The Confidentiality of Minor’s Records In Colorado

Colorado Law 19-1-307, C.R.S. requires that minors’ abuse and neglect social services records remain confidential, subject to several exceptions.

Three of those exceptions applied here:

Section 19-1-307(2)(a), grants certain government agents, including prosecutors, open access to these records.  BUT members of the public, including defendants in criminal cases, generally have no right of access to such records. Rather, a defendant only may access information contained in the records that a court has decided “is necessary for the resolution of an issue then pending before [the court].” § 19-1-307(2)(f) C.R.S. 2011.

Even the Courts themselves are limited to accessing social services records “upon . . . finding that access to such records may be necessary for determination of an issue before [it],” and even then, only by means of an in camera review.

Colorado Social Services Records and Sex Crimes Defense Law – The Two Part Test For Access to Colorado Social Services Records

The disclosure to a defendant of information contained in confidential social services records requires a two-part inquiry by the judge:

(1) The Judge must make a threshold determination whether to conduct an in camera review. Because a court may violate a defendant’s due process rights by failing to conduct an in camera review of potentially material information, it “should approach this threshold inquiry liberally and conduct [such a] review whenever it reasonably appears that the records may contain discoverable information.”

(2) If a court decides to undertake an in camera review, it must then determine what discoverable information in the records, if any, must be disclosed to the defendant.

Either side may request court-ordered disclosure of social services records. The procedures by which each may request disclosure differ.

The Brady Rule of Pretrial Discovery

A prosecutor is legally and ethically obligated to disclose to a criminal defendant evidence or information of which he or she learns that is favorable to the defendant and material to either guilt or punishment, including exculpatory and impeaching evidence. Brady v. Maryland,

But a different law – Colorado section 19-1- 307 prohibits a prosecutor from disclosing to the defendant such information if it is contained in confidential dependency and neglect records.

The Resolution Of This Conflict

To protect the rights of a defendant without violating confidentiality issues surrounding the records, the lower court MUST REVIEW “any records that contain evidence a prosecutor reasonably believes to be exculpatory or impeaching.”

The trial court should also review records believed to contain inculpatory information that would materially assist a defendant in preparing a defense.

Tougher Road For A Defendant Who Requests A Social Services Records Review

A criminal defendant lacks access by right to these confidential records. The defendant has a tough  row to hoe to compel the review of these records.

Here is the TEST:

A defendant must identify relevant dependency and neglect records and request the trial court to review them in camera based upon his or her belief that information contained therein is necessary for determination of any issue pending before the court. § 19-1-307(2)(f).

The request cannot a “mere fishing expedition.”  The defendant must identify the type of information sought, and make an offer of proof establishing “an evidentiary hypothesis as to how the requested information would be relevant to the . . . case generic tadalafil.”

A trial judge is in error if the court refuses to review social service records after the prosecution  requested an in camera review based upon their belief that the records contained exculpatory, impeaching, and inculpatory information.

This case established a new rule that the defense can rely on and join a prosecutor’s request for in camera review of confidential social services records, and specifically on the prosecutor’s statement that there is information contained in those records that would be ” material to the defense.”

Therefore – when a prosecutor has requested the court’s in camera review of confidential social services records based on a reasonable belief that ..

they contain exculpatory, impeaching, or inculpatory information that would materially assist in preparing the defense, the defendant has no additional burden to make a separate request – and the defendant’s burden to show necessity  is relieved.

Denver Colorado Criminal Defense Lawyer

The Law Offices of H. Michael Steinberg, in Denver, Colorado, provides criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer who will provide you with a free initial case consultation to evaluate your legal issues and answer your questions with an honest assessment of your options.

Colorado Social Services Records and Sex Crimes Defense Law

tags: Keywords: Discovery Violation by Prosecutor in Colorado, Sex Crimes, Social Services Records secrecy, Colorado’s Rape Shield Law, Herrera case, Colorado Social Services Records and Sex Crimes Defense Law


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