Colorado Domestic Violence Cases – Defense Lawyers And Victim Contact
By H. Michael Steinberg Colorado Domestic Violence Lawyer – Attorney
KW Colorado Domestic Violence Cases – Defense Lawyers And Victim Contact
Colorado Domestic Violence Cases – Defense Lawyers And Victim Contact – Colorado law requires that Colorado criminal defense lawyers zealously and aggressively fight for their client’s rights. In domestic violence cases, that often means investigating the background of the alleged victim and thoroughly vetting all of the evidence including her statements.
Here is the danger – a criminal defense lawyer who crosses the line between investigating a case and tampering with a witness faces possible Colorado witness tampering charges…
Here is the relevant Colorado’s witness tampering statute:
Colorado Statute C.R.S. 18-8-707 reads:
“A person commits tampering with a witness or victim of he intentionally attempts without bribery or threats to induce a witness or victim or a person he believes is to be called to testify as a witness or victim in any official proceeding or who may be called to testify as a witness to or victim of any crime to:
Testify falsely; or,
Unlawfully withhold any testimony; or,
Absent herself from any official proceeding to which she has been legally summoned; or,
Avoid legal process summoning her to testify.
This law, the crime of Colorado Criminal Tampering, poses an even greater danger to a Defendant.
A Defendant should almost NEVER conduct their own investigation by trying to interview or attempt to contact victims especially in Colorado Domestic Violence cases. Many Judges will view this as an attempt to intimidate those witnesses and the District Attorney may charge witness intimidation even in weak cases.
The Advantages Of An Investigator Contacting The Alleged Victim In A Domestic Violence Case Usually Outweigh The Risks
The advantages, in a Colorado domestic violence case, of retaining an investigator, while expensive, are very clear. But before addressing these issues further, an important must be made clear.
While it may seem to be the case, the Prosecutor does not represent the victim. A Colorado prosecutor cannot prevent the Defense from interviewing an alleged domestic violence victim.
Colorado Law forbids both sides – the DA and the Criminal Defense Lawyer from in any way advising – or otherwise urging ANY witness to not cooperate with the other party.
Put differently – no attorney, police office, private investigator, or other agent of either the District Attorney or the Criminal Defense Lawyer may attempt to prevent a witness or victim from cooperating with the opposing side.
The Colorado Rule that applies here is found in: Criminal Rule of Procedure 16(III)(a):
“neither the prosecuting attorney, the defense counsel, the defendant nor other prosecution or defense personnel shall advise persons having relevant material or information (except the defendant) to refrain from discussing the case or with showing any relevant material to any party, counsel or their agent, nor shall they otherwise impede counsel’s investigation of the case.”
The reality of this situation is very different than the law. While a Colorado criminal defense lawyer has the right to talk to a victim in a criminal case without the permission of the DA, prosecutor, (the victim is not represented as a client of the prosecutor), DAs or their agents routinely inform the witnesses of their “right” not to speak to the defense.
The result is almost always the same. The message is clear. Don’t speak to “the enemy” – the Defense attorney or the defense investigator.
This should not stop the criminal defense lawyer from making the attempt, either with an investigator, or alone (with a recording device which the witness must agree can be used to record the entire interview).
The method that a lawyer or investigator should use with the reluctant witness is to persuade the witness that it is the duty of every citizen in this country under our criminal justice system – to assure that the system is fair and just to all – and that means that person should cooperate with both sides of the case…. equally.
Finally, if it can be established through the witness – victim that that person was in fact instructed NOT to cooperate in this process, punishment for this conduct – this calls for sanctions (punishments) are allowed under Colorado law.
A Trial Judge, learning of this kind of unethical and obstructive conduct has many options to punish the prosecutor’s case:
1. The Judge can instruct the jury that the prosecutor instructed the witness not to speak to the defense.
2. The Judge can actually order that part or all of the witness’ testimony be stricken and the jury will be instructed not to consider it for any reason.
3. In the most extreme cases of prosecutorial misconduct, the Judge can dismiss the case with prejudice (it cannot be retried).
The Development Of The Defense “Theory Of The Case”
A Colorado criminal defense lawyer is always working toward the goal of a coherent theory of the case – or defense theory.
Examples of defense theories may include defenses such as – alibi, duress, self defense, entrapment, alternate suspect, or others. At times the defense theory of the case may be just a general denial (the State cannot prove the elements of the crimes beyond a reasonable doubt). And at times the defense will focus it’s attack on a violation of the Defendant’s constitutional rights (a technical defense).
The theory of he case is always a result of a complete mastery of the facts and evidence in a case – and the facts and evidence of a case are only mastered after a thorough review of the State’s evidence and all other evidence uncovered and discovered by the defense.
The Effective Use Of A Colorado Domestic Violence Private Investigator
One of the most challenging issues to the defense is to identify and then fully uncover the “confirmation bias” in the State’s case. In almost all criminal investigations, investigators search for a consistent hypothesis that links all forms of evidence discovered. What can happen is this – these same investigators finding their theory of prosecution will overlook potentially relevant “inconsistent” evidence that challenges that theory. This evidence is sometimes called “exculpatory evidence” which may point to the innocence of the Defendant.
The role of the PI is to uncover shoddy or unscrupulous work and to follow the facts. If flaws exist inthe State’s case – such as the existence of a confirmtion bias, finding these flaws, if such flaws exist, in the work conducted by the police is the private investgator’s job.
Some Basic Tasks For The Private Investigator In Colorado Domestic Violence Cases
The PI should first identify and interview all known witnesses as listed by the prosecutor in the initial discovery batch of reports. and then identify, find and then interview witnesses NOT identified by the State’s case.
An experienced criminal defense lawyer will then “de-construct” ALL of the witness statements and then compare and contrast statements taken at different times attempting to unveil flaws and potential areas of inconsistency with the goal of exploiting those inconsistencies to the jury at trial.
The defense investigator will, of course, study the scene, study all of the police reports and any supplements as well as photographs and any and all available video. Truly veteran defense investigators will assist the criminal defense lawyer with gauging the demeanor and credibility of, for example, the alleged victim of domestic violence….feretting out the details of her “story” and comparing that story, not only to the other witnesses’ stories, but to the hard physical circumstantial evidence in a case – such as time lines and distances.
As noted the experienced private investigator may be able to locate “unidentified” witnesses. Good witness leads result from visiting the scene of the crime as soon as possible after the State is done with it. The goal here is to identify ANY PERSON, even remotely connected to the incident or, who may have information which may be helpful to the defense.
While “canvassing” a neighborhood adjacent to the scene of a crime is both time consuming, expensive and sometimes frustrating, when it comes to providing a good defense – every legitimate opportunity to defend against charges is worth the effort. The neighborhood canvas may locate witnesses overlooked by the police and thereby unearth valuable, “game-changing” information.
Excellent and effective cross examination is the result of careful planning. The opportunity for the Colorado criminal defense laeyer to successfully cross examine and “impeach” a State’s witness is usually the result of hard work.
Summary And Conclusion – Colorado Domestic Violence Cases – Defense Lawyers And Victim Contact
Every witness called by the State of Colorado in a case is a witness to the case. Witnesses do not “belongs” to the prosecutor. A truthful witness should be as willing to speak to a defense lawyer and or his or her investigator as they would be to speak to the District Attorney. It is equally important to understand that ALL lawyers are “officers of the court” and are ethically obligated to encourage that any evidence be made available to both sides to a Colorado criminal case.
Not only is there nothing wrong with the Defense team speaking to all potential witnesses, it is their DUTY to do so as part of their obligation to their client – a client whose very liberty may be at stake.
Colorado Domestic Violence Cases – Defense Lawyers And Victim Contact
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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.
If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.
Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. 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
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You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way Colorado Domestic Violence Cases – Defense Lawyers And Victim Contact.
