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by H. Michael Steinberg Author, Colorado Sex Crimes Criminal Defense Lawyer and Litigator – Email the Author at email@example.com
Can A Colorado District Attorney Be Forced To File Criminal Charges In Criminal Cases? CRS §16-5-209 – The three branches of government exist at both the state and federal level. The executive, the legislative and the judicial branch are both separate co-equal. By design this is a system of checks and balances that is intended to make certain that no one branch has too much power.
In this context the question remains – since it is the District Attorney (the executive branch) who is empowered and has the discretion in determining what offenses to prosecute, is there a method to compel a prosecutor to file charges when he or she refuses to do so?
The answer is yes – it is CRS 16-5-209
Under this law a judge may either order the district attorney to prosecute a case or appoint a special prosecutor to “fill the shoes” of the district attorney. – IF – the judge finds that the DA’s refusal to prosecute was ” arbitrary or capricious and without reasonable excuse.” § 16-5-209.
The arbitrary and capricious standard is a very high standard to reach and it is made increasingly difficult because the burden of proof requires proof by clear and convincing evidence. LINK
The judicial review of a district attorney’s refusal to prosecute a crime must be “perfected” by the filing of an affidavit with a court having jurisdiction over the alleged offense under Article II, sec. 6 of the Colorado constitution.
Known generally as “prosecutorial discretion” – a district attorney does not have the legal obligation to charge every case that is – in fact- “prosecutable.” The refusal to prosecute a “prosecutable” case must be “arbitrary and capricious” and this refusal must be established by clear and convincing evidence.
District attorneys are elected and serve their own constituency. As elected members of the executive branch of government, they have broad discretion in the performance of their duties under Colorado’s constitution (Colo. Const. art. VI, § 13)
That discretion is defined as “the power to investigate and to determine who shall be prosecuted and what crimes shall be charged” and to ” initiate, alter, or dismiss charges rests solely within the prosecuting attorney’s discretion, and may not be controlled or limited by judicial intervention.” DA’s answer only to the voters of their districts to assure proper accountability.
The only check on their power is the remedy of 16-5-209
Section 16-5-209 provides:
The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with the judge alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may require the prosecuting attorney to appear before the judge and explain the refusal.
If after that proceeding, based on the competent evidence in the affidavit, the explanation of the prosecuting attorney, and any argument of the parties, the judge finds that the refusal of the prosecuting attorney to prosecute was arbitrary or capricious and without reasonable excuse, the judge may order the prosecuting attorney to file an information and prosecute the case or may appoint a special prosecutor to do so.
1. A district attorney’s charging decision is given a “ presumption“ of correctness,
2. To overcome this presumption – the challenging party must prove their case ” by clear and convincing evidence.” [Clear and convincing evidence is that evidence which is stronger than a preponderance of the evidence and which is unmistakable and free from serious or substantial doubt.]
3. Even though the DA must explain his or her refusal to prosecute in a hearing under 16-5-209- that requirement to explain the refusal “ does not shift the burden of proof to the prosecutor.”
4. Finally, “absent a clear abuse of discretion, a judge may not substitute his judgment or discretion for that of the prosecutor.”
The Sandoval Factors (named after a Colorado case that best explains this procedure) are applied to determine if the DA’s refusal to prosecute is ” motivated by bad faith, malice, or personal vindictiveness.”
Sandoval Factors provide ” guidelines for reviewing a prosecutor’s charging decision” under section 16-5-209. In reviewing the DA’s decision not to file charges – the following factors – which are not exclusive – are applied:
1. The Availability of Witnesses to Corroborate the Offense
2. The Credibility of the Victim
3. The Sufficiency of the Evidence and the Likelihood of Conviction
4. The Prosecutor’s Reasonable Doubt That the Accused Are Guilty
5. The Extent of Harm Caused by the Offenses and the Seriousness of the Injuries
6. The Possible Improper Motives of the Complainant
7. The Reluctance of the Victim to Testify
8. Evidence Relating to the Motive or Intent of the Offenders
9. The Competing Demands of Other Cases On the Time and Resources of the Prosecution
The ABA Section 3-3.9 states that:
” [a] prosecutor ordinarily should prosecute if … a crime has been committed, the perpetrator can be identified, and there is sufficient admissible evidence available to support a guilty verdict.”
While a Colorado prosecutor’s discretion to prosecute or refuse to prosecute is not unlimited – the power is almost unlimited. While Section 16-5-209 provides a theoretical remedy for the refusal of an elected DA to prosecute a given case, the hurdles provided in the law seem almost insurmountable in all but the most egregious cases.. H. Michael
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ABOUT THE AUTHOR: H. Michael Steinberg –Email The Author– A Denver Colorado Sex Crimes 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.
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