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Colorado Supreme Court: Requiring Defense to Disclose Exhibits to Prosecution Before Trial Violates Due Process Rights

Ending what had been a “standard case-management practice,” the Supreme Court of Colorado held that a trial court may not order a defendant to turn over his defense exhibits to the prosecution prior to trial under the discovery rule because it violates a defendant’s constitutional rights under the Due Process Clause.

The question of first impression came before the Court after the La Plata County District Court ordered Joshua Kilgore to disclose his defense strategy and exhibits to the prosecution prior to the start of his criminal trial. When Kilgore objected, the trial judge overruled the objection, saying that turning over the defense’s strategy to the prosecution would “foster efficiency and allow for a fair trial.” If Kilgore didn’t comply with the order, he would not be allowed to use any exhibits or strategy not turned over to the prosecution, the court instructed.

Kilgore went straight to the Colorado Supreme Court, requesting the Court to invoke its original jurisdiction because he would otherwise suffer irreparable harm, in that the error could not be corrected later on appeal. He argued that the trial judge’s order violated his constitutional due process rights, among other rights to which he is entitled. The Supreme Court agreed.

Invoking the Supreme Court’s original jurisdiction to hear an appeal is an “extraordinary remedy” that is only for “issues of significant public importance that we have not yet considered,” the Court said. “The disclosure order forces Kilgore to reveal to the prosecution some exculpatory evidence and his trial strategy. And once that happens, any prejudice to Kilgore cannot be undone,” the Court said. “As the old adage goes, ‘you can’t unring a bell.’”

The trial judge’s order was issued sua sponte. That is, it wasn’t prompted by either party, and it “appears to have been part of the court’s standard case-management practice,” the Supreme Court noted. Though Colorado Rule of Criminal Procedure 16 authorizes some mutual disclosure of discovery between the defense and the prosecution, the question was whether the trial court’s order went too far.

Colorado “remains one of the few states” that prohibits trial courts from ordering discovery outside the parameters of the statutes and rules that govern discovery, the Court explained. Trial court have no “freestanding authority” to expand discovery in criminal cases.

Rule 16 did not authorize the trial court to order Kilgore to turn over his trial strategy to the prosecution. The Court found that Rule 16 does not mention trial exhibits. And that did not mean that the trial court could add that provision to the rule, it being silent on the issue. “A district court has authority to order only discovery that is specifically authorized by Rule 16,” the Court said.

But there was another overarching issue the Court focused on: the trial court’s order violated Kilgore’s due process rights because had he turned over his trial strategy, it would have helped the prosecution meet its burden to prove its case “beyond a reasonable doubt.” The prosecution’s burden is so “universally accepted” that it has become an “organic component” of the term “due process of law,” the Court explained.

The trial court’s order, in effect, forced Kilgore to “tip his hand vis-a-vis his investigation and theory of his defense” to the prosecution, the Court said. “This is problematic.” There is not a problem per se with Rule 16, the Court clarified, only the trial court’s expansion of the rule. “The provisions of Rule 16(II) adequately ensure that the prosecution is not ambushed at trial without infringing on a defendant’s constitutional rights,” the Court said. A trial court cannot go beyond the rule’s boundaries. Thus, the Court concluded that the district court erred in requiring Kilgore to turn over his trial strategy and exhibits to the prosecution.

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Related legal case

People v. Kilgore



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