June 22, 2018

Colorado Supreme Court: Special Prosecutor Unnecessary for Post-Trial Proceeding

The Colorado Supreme Court issued its opinion in People v. Ehrnstein on Monday, May 21, 2018.

Special Prosecutors—Colo. RPC 3.7—Post-Trial Proceedings.

In this interlocutory appeal, the supreme court reviewed the trial court’s order appointing a special prosecutor for the purpose of litigating defendant’s post-trial motion for a new trial. In his motion, defendant alleged that the prosecution had improperly instructed a witness to evade a defense subpoena. The trial court concluded that the Colorado Rules of Professional Conduct compelled it to appoint a special prosecutor for the purposes of the hearing on this motion because, subject to exceptions not pertinent here, Colo. RPC 3.7 prohibits an attorney from acting as both an advocate and a witness during the same proceeding.

The court concluded that the trial court abused its discretion in appointing a special prosecutor because that court misapplied the law when it found that Colo. RPC 3.7 required the appointment of a special prosecutor in the circumstances present here. Specifically, the rule serves to prevent prejudice that arises from jury confusion in cases in which an attorney serves as both counsel and witness. Because this proceeding arose in the context of a post-trial motion, that concern is not implicated.

The court reversed the trial court’s order and remanded this case for further proceedings.

Summary provided courtesy of Colorado Lawyer.

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