COLORADO CRIMINAL LAW - AN OVERVIEW OF THE WHOLE SYSTEM

    Criminal law regulates behavior that the people, through their legislators, decide cannot
be tolerated. Criminal law sets forth the types of behavior deemed criminal, establishes the rules
governing the apprehension, prosecution and defense of people who are suspected of committing
crimes, and governs the punishment of those who are convicted of committing crimes.
Unlike civil cases, which usually involve one private party suing another private party,
criminal cases always involve the government. The government apprehends suspected offenders,
prosecutes criminal cases, provides for the defense of those who cannot afford their own defense,
and punishes those who are convicted of committing a crime. Because the government has power
and far more resources than a citizen, criminal law also involves putting limits on the power of
the government to pursue these cases.

    

FEDERAL AND STATE PROSECUTION OF CRIME

    Federalism is the principle that governmental power is divided between the federal
government and the various state and local governments. In the area of criminal law, the
principle of federalism limits the types of crimes the federal government can prosecute.
Generally, the federal government can prosecute only those crimes which involve federal
officials, e.g., trying to bribe a federal judge; occur on federal property, e.g., assaulting someone
in a national forest; cross state lines, e.g., interstate transportation of stolen goods; or affect the
national interest, e.g., immigration laws. State governments retain responsibility for prosecuting
most other crimes. Many more prosecutions occur in state courts than in federal courts.
At the same time, the principle of federalism and the supremacy of the federal
constitution also limit what state governments can do. Most important, state governments cannot
violate the federal constitution. The rights that are guaranteed in the U. S. Constitution are a
"floor." No state can go below that floor by taking away those rights. However, a state may raise
that floor by giving its citizens more rights and more protection than does the U. S. Constitution.
This principle will be discussed more in the section on search and seizure.

SOURCES OF LAW

    The legislative branch of government has the responsibility of writing the laws that
determine what conduct is illegal. Once signed by the Governor, or passed into law over the
Governor’s veto, these laws are set out in the Colorado Revised Statutes ("C.R.S.").
The judicial branch interprets the laws passed by the legislature. Whenever there is a
question about the precise meaning of a criminal statute, a judge makes the determination. If one
of the parties believes that the judge's interpretation is incorrect, that party can appeal the
decision to a higher court. There are five basic levels of court in Colorado: (1) municipal courts,
which address violations of city laws; (2) county courts, which hear most traffic and
misdemeanor cases; (3) district courts, which hear felony cases as well as appeals from county


court; (4) the Colorado Court of Appeals, which hears appeals from district court; and (5) the
Colorado Supreme Court, which is the highest state court and hears certain appeals from the
lower courts.

    Court decisions interpreting the law, as well as decisions establishing the correct
procedures and interpreting court rules for conducting trials and pretrial matters are called "case
law." Case law is just as important a source of criminal law and procedure as is the legislation
itself.

    The executive branch of the government enforces the laws passed by the state legislature
and interpreted by the judicial branch of the government, by prosecuting people who are alleged
to have committed crimes.

PROSECUTION OF CRIMES

    Almost all state crimes are prosecuted by district attorneys. The district attorney in each
of the twenty-two judicial districts in Colorado is elected by the voters in that district. The
district attorney then hires deputies to prosecute crimes. A very small number of crimes are
prosecuted by the Attorney General in Colorado. The Attorney General is elected in a statewide
vote and has a number of different responsibilities. Representing state agencies and arguing
appeals in criminal cases are just two of the duties of the Attorney General.

    Everyone who is charged with a crime that may result in a jail or prison sentence is
entitled to the assistance of a lawyer. The right to a lawyer is
guaranteed by the Sixth Amendment to the U.S. Constitution and by Article II, § 16, of the
Colorado Constitution.

    Some crimes in Colorado are prosecuted by municipalities. Municipalities have a limited
power to prosecute certain types of crimes committed within their city limits. These offenses are
set forth in the municipal code of the city and often are referred to as municipal ordinance
violations.

VICTIMS OF CRIME

    One of the most important changes in the way criminal cases are handled in Colorado
over the past twenty years is the way in which crime victims are treated. Police, prosecutors, and
judges today are more sensitive to the concerns and problems of crime victims. According to the
Bureau of Justice Statistics, in 1974 only 35 percent of prosecutors routinely told crime victims
the eventual outcome of the case. By 1990, that figure had jumped to 93 percent.
In 1992, the citizens of Colorado amended the Colorado Constitution by adding section
16a to Article II. This section establishes certain basic rights for victims of crimes. The state
legislature passed a series of laws to implement this constitutional amendment. These laws are
entitled "Crime Victims Compensation and Victim and Witness Rights" and are found in Article
4.1 of Title 24 of the Colorado Revised Statutes.

    Most police departments and prosecutors' offices have specially trained people to comfort
and assist people who have been the victims of crimes. Prosecutors are required to seek input
from crime victims before they decide how to prosecute a case. Judges are required to order that
a person convicted of a crime pay for the damage he or she caused. This is known as restitution.

    Another important change in the treatment of crime victims has come in cases involving
sexual assault. In the past, it was common for a woman who accused someone of rape to be
treated with disbelief by police and prosecutors and to be treated with disrespect by the court. A
woman's sexual history often was brought out in court, even when that history had nothing to do
with the case. The sexual history of a victim of sexual assault now is protected by the "rape
shield law" found at C.R.S. § 18-3-407. The criminal justice system is more aware of the
sensitive and difficult nature of such cases and continued efforts are being made to that end.

TYPES OF CRIMES/OFFENSES

    Whether a crime is a felony, a misdemeanor, or a petty offense in Colorado is decided by the legislature. Generally, felonies are the more serious crimes. Crimes that the legislature has
designated as felonies are punishable by sentences to prison in the Colorado Department of
Corrections ("D.O.C."). Crimes that the legislature has designated as misdemeanors or petty
offenses are punishable by a sentence to the county jail where the crime was committed or by a
fine. Almost all traffic offenses are punishable by a sentence to the county jail. This does not
mean that everyone convicted of a felony goes to prison; in fact, many people convicted of
felonies are sentenced to probation with the condition that if a person breaks a condition of
probation the court may send him/her to jail. Others are sentenced to ‘community corrections’
facilities that have been established around the state to house persons who need more supervision
than can be offered through probation, but who do not need to be locked up in a secure D.O.C.
facility. The judge can sentence them to prison if the judge decides that incarceration is the
appropriate sentence. Similarly, not everyone who is convicted of a misdemeanor or a petty
offense goes to jail; many people get probation or a fine. If the judge does decide to lock up the
person, the person will be locked up in the county jail.

    There are different classes of felonies, misdemeanors and petty offenses. Felonies in
Colorado are divided into six classes, misdemeanors are divided into three classes, and petty
offenses are divided into two classes. Traffic offenses also are divided into several classes.
Whether a particular crime is designated a felony or a misdemeanor depends on several
factors. One factor is the amount of economic or physical harm the crime caused. For example,
stealing $50 worth of merchandise from a store is a misdemeanor, but stealing $500 worth of
merchandise from the same store is a felony. Causing bodily injury to someone generally is a
misdemeanor, but causing "serious" bodily injury to someone generally is a felony.
Another factor in determining whether a crime is a felony or a misdemeanor is the type of
person victimized by the crime. Stealing $50 from a store is a misdemeanor, but stealing $50
from a disabled or elderly person is a felony. Sexually assaulting an adult is a serious felony, but
sexually assaulting a child is an even more serious felony.


    A third factor is the criminal history, if any, of the person who committed the crime.
People who repeatedly drive in violation of the law may be declared "habitual traffic offenders"
and may have felony charges filed against them if they continue to drive illegally. People who
have been convicted of certain types of crimes are not allowed to carry weapons and may be
prosecuted for a felony crime if they do.

    Petty offenses are those offenses that the legislature has decided are less serious than
misdemeanors. Examples of petty offenses in Colorado include loitering, certain types of
disorderly conduct and gambling. While some petty offenses can be punished by as much as six
months in jail, the usual punishment in the event of a conviction is a fine.
The decision whether a particular crime should be a felony, a misdemeanor or a petty
offense is decided by the legislature. One of the most important functions of the legislature is to
decide what conduct should be illegal and how serious the punishment for that conduct should
be. The legislature considers protection of the community and the resources available to
prosecute crimes in making its determination.

GENERAL CRIMINAL PROCEDURE

    Criminal procedure governs the way we prosecute criminal cases. Statutes, rules passed
by the court, and decisions interpreting those statutes and rules make up the bulk of criminal
procedure. This section contains an overview of criminal procedure in Colorado.
A person may be charged with a crime in a variety of ways. A police officer that believes
someone is speeding will charge that person with speeding by issuing a ticket. The ticket is
formally known as a summons and complaint. That ticket orders the person to come to court on a
specified date and answer the charge. The police may issue a summons and complaint for any
misdemeanor or traffic charge.

    If the police officer is worried that the person might not come to court, or if the offense is
a more serious misdemeanor, the officer may choose to arrest the person. A person arrested in
this fashion must either post bail or stay in jail until the case is concluded.
The first appearance in misdemeanor and traffic cases is called an advisement. At this
hearing, the person is advised of his rights in connection with the charge. Usually, at this same
hearing, a person is asked to enter a plea to the charge. Entering a plea is called "arraignment."
If the person chooses to plead guilty, the next step is to sentence the person. At
sentencing, the judge considers the type of crime the person has committed, the background of
the person (particularly any prior crimes of the person), the comments of the defense lawyer, the
prosecutor and the victim, and then decides what sentence, within the sentencing range
prescribed by statute, is appropriate for the particular crime and defendant.
A person who pleads not guilty in a misdemeanor or traffic case is normally scheduled to
appear for a pretrial conference. At the pretrial conference, the prosecutor and the defense
attorney (or the defendant himself or herself if no defense lawyer is involved) negotiate with

each other to see if they can settle the case. This process is known as plea-bargaining. If a plea
bargain is reached, the proposed disposition is presented to the judge for approval and
sentencing. If plea negotiation is unsuccessful, the case is set for a trial. The following section
discusses plea-bargaining in more detail.

    The procedure in felony cases is somewhat different. The prosecutor is responsible for
charging people with felony offenses. The police bring the results of their investigation to the
prosecutor, who then decides where and what charges should be filed. These charges are
contained in a document called "Information." If the suspect is not already under arrest, the
prosecutor may ask a judge to issue an arrest warrant for the person, or may choose to serve a
felony summons and complaint on the person, ordering the person to appear in court.
Occasionally a prosecutor may choose to present the results of the police investigation to
a "grand jury." A grand jury is a group of randomly selected citizens who listen to evidence and
may order witnesses to come before them and present further evidence; they then decide whether
charges should be filed. If a grand jury decides to file charges, it issues an indictment. Grand
juries are not used very often in Colorado, although other states and the federal government
regularly use grand juries.

    When felony charges are being filed, the defendant appears before a judge for advisement
and is informed of the charges. The defendant in certain serious felony cases has the right to have
a preliminary hearing, where the prosecutor must present enough evidence to convince the judge
that there is "probable cause" to believe that the defendant committed the crime. "Probable
cause" exists if a reasonably intelligent and prudent man would believe that the accused person
may have committed the crime charged. If the judge is not convinced, the case is dismissed. If
the judge believes that probable cause has been established, the case is set for arraignment. At
arraignment, the defendant enters a plea. A guilty plea results in the case proceeding to
sentencing; a not guilty plea results in the case being set for trial. Plea negotiations between the
prosecutors and the defense attorney may occur at any of these stages.

    Before trial, the attorneys may file motions relating to the evidence in the case, or the
procedures to be used at the trial. The trial may be heard by a jury, or by the judge sitting as a
jury. Any person charged with a serious offense has the right to a jury,
At trial, the prosecutor presents evidence to the jury by calling witnesses to the stand and
asking them questions. This process is called direct examination. The defendant gets an
opportunity to question these witnesses in a process called cross-examination. Evidence also may
be presented to the jury through photographs, charts and test results.
   
    When the prosecutor finishes presenting evidence, the defendant has the opportunity to
present evidence also. The defendant does not have to present evidence because the defendant is
presumed to be innocent and the burden of convincing the jury that he is guilty rests entirely with
the prosecutor. These two principles, the presumption of innocence and the burden or proof,
govern all criminal trials in this country and are fundamental principles of criminal law.
The government must overcome the presumption of innocence by proving the elements
of the criminal charge beyond a reasonable doubt to the satisfaction of every trial juror. In
Colorado law, a reasonable doubt is defined as "a doubt that would cause reasonable people to
hesitate to act in matters of importance to themselves." The "beyond a reasonable doubt"
standard is the highest burden of proof in the law. In civil cases, the burden of proof is typically a
"preponderance of the evidence." Preponderance of the evidence simply means more likely than
not.

    After all of the evidence is presented, the trial judge instructs the jurors on the law of the
case. The lawyers make final arguments to the jury, and the jury then retires to deliberate. When
the jury reaches a verdict, it informs the court and the verdict is then presented in open court. If
the verdict is not guilty, the case is over. If the verdict is guilty, the case proceeds to sentencing
and, sometimes, to an appeal.

BAIL

    Except in limited circumstances involving very serious crimes, everyone who is arrested
for a crime has the right to bail. Both the Eighth Amendment to the U.S. Constitution and Article
11, § 19 of the Colorado Constitution guarantee persons suspected of crimes the right to bail,
which is normally set by the judge at the person's first appearance in court. Colorado statutes set
forth some guidelines the judges should follow when deciding on the question of bail.
A person makes bail by posting a bond in the amount set by the court. If a person has
strong ties to the community and the crime is not too serious, a judge often will allow the person
to make bail by posting a "personal recognizance" bond. A personal recognizance bond is simply
a written promise to appear; it does not require the person to post any money with the court.
Sometimes, the judge will require that another person join in this promise: this is called a "cosigned personal recognizance bond."

    If the judge feels that the person does not have adequate ties to ensure that the person will
return to court when ordered, or is concerned that the person will not stay out of trouble in the
interim, the court will require a secured bond. A secured bond must be posted by depositing
money with the court, by hiring a bondsman to post the money with the court, or by pledging
Colorado real estate as collateral on the bond.

    Article II, § 19 of the Colorado Constitution allows a judge to refuse bail in capital cases
"when the proof is evident or the presumption great." Capital cases are those cases that are
punishable by execution. "The proof is evident or the presumption great" refers to those cases in
which the evidence against the defendant is very strong and the judge believes that the likelihood
of conviction is very high. The "proof evident/presumption great" standard requires something
more than probable cause but less evidence than is required for conviction.

    In 1982, the citizens of Colorado amended Article II, § 19 of the state Constitution to
expand the types of cases in which a judge can deny the defendant the right to bail. This
amendment allows a judge to deny bail to persons who are charged with a crime of violence and
are on probation, parole or bail for a previous crime of violence, or who previously have been
convicted of two felonies, one of which was a crime of violence. The judge must hold a hearing
before denying bail, and also must find that the "proof is evident or the presumption great" and
that the public would be placed in significant peril if the person were released on bond.

    The procedure established by this amendment is known as "preventive detention."
Supporters of preventive detention believe that it helps keep dangerous criminals off the streets.
Opponents argue that preventive detention is inconsistent with the fundamental notion that a
person is presumed to be innocent, and fear that the government can misuse preventive detention
to lock up people on inappropriate grounds.

ALCOHOL AND DRUG ABUSE

    Alcohol is the most widely abused substance in Colorado and around the nation. While
other drugs, both legal and illegal, are abused and contribute to crime, alcohol remains the single
biggest problem drug. The most common crimes associated with the abuse of alcohol are driving
under the influence (“D.U.I.”) and driving while ability impaired ("D.W.A.I.”). People who drive
after drinking too much are a serious problem in Colorado. Citizens are much more aware of the
danger of drunk driving than they used to be. Groups like Mothers Against Drunk Driving
("MADD”) and Students Against Drunk Driving ("SADD") have lobbied the legislature to make
Colorado's drunk driving laws tougher. Their lobbying efforts are proving to be effective.
The courts interpreting these laws also are very concerned about the danger of drunkdriving.
Colorado courts have issued a number of decisions making it easier to catch and convict
people of D.U.I. For instance, the Colorado Supreme Court has held that it is constitutional for
the police to stop cars at roadblocks to see if the drivers were under the influence. The court held
that the police could stop cars even if they had no particular reason to believe the driver was
doing anything wrong before the car was stopped. The Colorado Supreme Court has also held
that it was not a violation of the Fifth Amendment "right to remain silent" for prosecutors to
introduce evidence that a driver, under investigation for D.U.I., refused to take a roadside
sobriety test. Similarly, the court held that it was not a violation of the Fifth Amendment to
introduce evidence that a driver refused to take a chemical test to determine the amount of
alcohol in his system.

    The legislature and Colorado courts have also expanded the meaning of "driving" as part
of the effort to control the problem of drunk driving, In 1998, the Colorado Supreme Court
upheld the conviction of a person who was asleep in the front seat of his truck on the side of the
road. The key was in the ignition but the engine was not running. The driver failed roadside
sobriety tests. The court held that the legislature intended drunk "driving" to include being in
physical control of the vehicle and that the defendant was driving within the meaning of the
statute.

    Many people think of driving as a right, even a constitutional right; it isn't. Rather, it is a
privilege granted by the state, a privilege that the state can control and limit. Two obvious limits
are age and testing requirements, i.e., making you wait until you are sixteen and pass both a
written and driving test before you can get a license. It is partly because driving is a privilege and
not a right that the state, through the Division of Motor Vehicles ("D.M.V.”), can take away your
license for a wide variety of reasons.

    A high percentage of other crimes also are related to drug and alcohol abuse. Many
otherwise law-abiding people get into trouble when they are under the influence of drugs or
alcohol. In 1985, it was estimated that approximately 75 percent of the prison population in
Colorado had a drug and/or alcohol problem. Approximately 64 percent of these prisoners began
using drugs before age 16. There is no more certain route to jail or prison than to develop an
alcohol or drug problem. People think they can handle drugs or alcohol and that it will not be a
problem for them. The statistics overwhelmingly prove that these people are mistaken and are a
danger to themselves and others.

PLEA BARGAINING

    Most criminal cases do not go to trial. The overwhelming majority of cases settle through
a process known as plea-bargaining or plea negotiation. The Colorado legislature has explicitly
approved plea-bargaining and the criminal justice system could not function efficiently without
plea-bargaining.

    Plea-bargaining is conducted by the prosecutor and the defense lawyer or, if the
defendant does not have a lawyer, by the prosecutor and the defendant. The two sides meet,
discuss the strengths and weaknesses of the case, the history of the defendant, and try to reach a
settlement that both sides feel is fair.

    If the parties reach agreement on a plea bargain, the proposed settlement is presented to
the judge. The judge always retains the power to accept or reject any plea agreement, although
most of the time judges approve the agreement worked out by the parties.
Plea agreements usually involve either a "charging concession" or a "sentencing
concession" or both A charging concession is an agreement by the prosecutor to dismiss or
reduce pending charges in exchange for a guilty plea from the defendant. A sentencing
concession is an agreement by the prosecutor to recommend a certain type of sentence to the
judge in exchange for a guilty plea from the defendant.

    Plea-bargaining is sometimes controversial. People who are in favor of plea bargaining
point to its efficiency and argue that elimination of plea-bargaining would result in a huge
increase in the number of trials. Our criminal justice system simply cannot handle such an
increase because there aren't enough judges, prosecutors, public defenders, court reporters, or
courtrooms. Those who are opposed to plea-bargaining argue that letting people plead guilty to
reduced charges, or to get reduced sentences, diminishes the seriousness of the illegal conduct.

ARREST

    The U.S. and the Colorado Constitutions bar "unreasonable" arrests. In addition, C.R.S. §
16-3-101 et seq. sets forth certain rules regarding arrests. There are two types of arrests: (1)
arrests with warrants; and (2) warrantless arrests. An arrest warrant is issued by a judge or
magistrate after enough evidence has been presented to establish probable cause to believe the
person to be arrested committed a crime. After obtaining an arrest warrant from the judge, police
officers execute the warrant by finding and arresting the person named in the warrant.
A warrantless arrest occurs when a police officer (or, in some very limited situations, a
civilian) has seen the suspect commit a crime or has probable cause to believe the suspect has
committed a crime and needs to act upon that information without waiting for a judge to issue a
warrant. It always is preferable for a police officer to obtain an arrest warrant, but there are many
situations when getting a warrant is not practicable and the officer needs to make an on-the-spot
warrantless arrest.

    A person who believes that his arrest was improper, either because the arrest warrant was
defective or because the officer did not have probable cause to arrest him, may challenge the
validity of his arrest. This challenge is made by filing a motion with the court and holding a
hearing on the motion. An arrest made with a warrant is presumed to be reasonable, and the
defendant must convince the judge that it was unreasonable. An arrest made without a warrant is
presumed to be unreasonable and the prosecutor must convince the judge that it was reasonable.
If the judge agrees that the arrest was improper, evidence seized during or after that arrest will be
suppressed and cannot be used against the individual at trial. This is the ‘exclusionary rule’ and
is discussed in greater detail later in this chapter.

SEARCH AND SEIZURE

    The U.S. and Colorado Constitutions protect citizens against certain other types of
government intrusion in their lives. The first ten Amendments to the U.S. Constitution, known as
the Bill of Rights, are the most well known of these protections. Several of the rights protected
by the Bill of Rights apply specifically to criminal cases.

    The Fourth Amendment protects citizens against unreasonable searches and seizures by
police. The Fifth Amendment protects citizens against being forced to incriminate themselves in
criminal cases ("self-incrimination") and against being prosecuted twice for the same offense
("double jeopardy"). The Sixth Amendment provides that a person charged with a crime has the
right to a speedy and public trial, the right to confront witnesses against him, and the right to an
attorney. The Eighth Amendment bars "cruel and unusual" punishment.
The Colorado Constitution contains similar protections. Article II, § 7, contains a
guarantee against unreasonable searches and seizures similar to the guarantee in the Fourth
Amendment. Article II, § 16 confers rights to a speedy trial, to confront witnesses and to have an
attorney, which are similar to the rights contained in the Sixth Amendment. Article II, § 18
contains guarantees against self-incrimination and double jeopardy like those in the Fifth
Amendment. Finally, Article II, § 20 bars cruel and unusual punishments, as does the Eighth
Amendment.

    The U.S. Supreme Court has held that the rights guaranteed by these particular
Amendments to the U.S. Constitution apply to state governments as well as to the federal
government. No state government can take away these rights and give its citizens less protection.
However, a state government can add to these rights by giving its citizens more protection. This
is another aspect of the principle of federalism discussed earlier.

    One example of this principle here in Colorado relates to the use of dogs trained to detect
narcotics. The U. S. Supreme Court has held that using a trained dog to sniff luggage for the
presence of drugs was not a "search" and, therefore, was not governed by the Fourth Amendment
of the U.S. Constitution. However, the Colorado Supreme Court later held that using a trained
dog to sniff a safe for the presence of drugs was similar to a "search" and is subject to Article II,
§ 7 of the Colorado Constitution, which states that the people shall be free from unreasonable
searches.

    The primary issue in these search and seizure cases is whether the citizen has a
reasonable expectation of privacy that the government violated. Whether the citizen's expectation
of privacy is "reasonable" depends on all of the surrounding circumstances. In an interesting
1997 case, the Colorado Supreme Court held that a man who was living in a tent on unimproved
and apparently unused land had a reasonable expectation of privacy in the tent and held that the
police acted improperly in searching the tent and his backpack, which was inside the tent,
without a warrant.

    A person who believes that the government has conducted an unconstitutional search
and/or seizure follows the same general procedure outlined above in connection with claims of
an illegal arrest. The person files a motion with the court and the court conducts a hearing. If
evidence was seized pursuant to a search warrant, the defendant must convince the court that the
search was nonetheless improper. If the search was conducted without a warrant, the
government must persuade the court that there is a good reason that outweighs the constitutional
preference that the police obtain search warrants. If the court finds that the search and/or seizure
violates the constitution, any evidence seized during that search or seizure will be barred, under
the exclusionary rule, in the prosecution of the defendant. The exclusionary rule is discussed in
greater detail below.

INTERROGATION

    In ancient times, the interrogation of suspected criminals often proceeded by means of
torture. The authorities who practiced torture believed that they could force people to tell the
truth. While they may have been successful on occasion, many people confessed to crimes they
did not commit simply in order to stop the torture. Modern America condemns torture and other
forms of physical abuse as a method of dealing with suspected criminals.
There are many forms of coercion short of physical abuse that may violate a person's
rights when the person is being questioned by authorities. An individual may feel
psychologically or emotionally compelled to answer police questions simply because of the
power of the police or the way in which the interrogation is conducted. To reduce this danger,
the U.S. Supreme Court held that before police officers can question a suspect in custody they
must warn the suspect: (1) of the right to remain silent; (2) that anything the suspect says can be
used as evidence in court; and (3) the fact that the suspect has the right to an attorney present
during questioning. This is known as the Miranda warning.

    The Miranda warning does not have to be given every time the police question a person.
For example, the police do not need to warn a person who is not "in custody." The Colorado
Supreme Court has held that a motorist who was stopped for a traffic violation and investigated
for being under the influence was not "in custody" for the purposes of the Miranda rule.
The Miranda warning does not have to be given when public safety is involved. The U.S.
Supreme Court has established a "public safety exception" to the requirement that a defendant be
given a Miranda warning. The case involved a situation where the police received a report of a
man with a pistol in a store. They went in, saw him, chased him, lost sight of him for a moment,
caught him, cuffed him and found that he was wearing an empty pistol holster. A policeman
asked where the gun was and the suspect told him. The court held that the public safety interest
in quickly finding the gun outweighed the need to give a warning of rights.
There are many other exceptions to the rule that Miranda warnings must be given.
Prosecutors, defense lawyers, and judges often are engaged in trying to determine whether the
rule should apply to a particular set of facts. Since every case is somehow unique, this process
can be difficult.

THE EXCLUSIONARY RULE

   
    The protections contained in the U.S. and Colorado Constitutions that are discussed in the
preceding sections are enforced by the courts through the "exclusionary rule." Under this rule,
evidence or statements obtained by the police in violation of a constitutional right are excluded
in the trial. The U.S. and Colorado Constitutions do not provide specifically for this exclusion of
evidence; it is a rule created by the courts.

    Supporters of the rule offer several justifications. They believe that excluding illegally
seized evidence helps deter misconduct by the police. The theory is that if the police know that
illegally obtained evidence cannot be used against a defendant, they will stop seizing evidence
illegally. The second justification for the rule is that it helps maintain judicial integrity by
preventing the courts from becoming participants in actions that are in violation of the
constitution. A third purpose is to assure citizens that the government will not be allowed to
profit from its own illegal behavior.

    The exclusionary rule may be used when the police arrest someone without a warrant or
probable cause to believe the person committed a crime. It may be used if the police interrogate a
prisoner without first advising him of his rights. Whenever it is used, material evidence is
excluded from the case. For this reason, the exclusionary rule is controversial. Judge Cardozo of
the New York Court of Appeals, who was later on the U.S. Supreme Court, described the effect
of the exclusionary rule as follows: "The criminal is to go free because the constable has
blundered." Many people are concerned that under the exclusionary rule, reliable and relevant
evidence is excluded from trial. They argue that there must be a better way to prevent the police
from engaging in misconduct.

    If there is no police misconduct, there is no need to exclude evidence. For instance, in a
case reviewed by both the Colorado and United States Supreme Courts the defendant approached
a police officer at Stapleton Airport (this was before DIA) and began confessing to an old
unsolved murder before the officer said anything. The U.S. Supreme Court held that the police
officer had not done anything to cause the confession and that the confession was voluntary.
While the defendant was suffering from some mental health problems that contributed to his
confession, the police were in no way responsible for these problems either. Since the police had
done nothing wrong, the confession was admissible. The Colorado Supreme Court has refused to
suppress the evidence of marijuana cultivation in a person's house because the police officer had
obtained a warrant to search from the judge, even though the judge later found that probable
cause did not exist for the search.

SENTENCING

    Sentencing people who have been convicted of crimes is a very important part of the
entire criminal justice system. Since most defendants plea bargain the charges against them and
end up pleading guilty to some charge, most defendants get sentenced. As you can imagine, these
people are extremely concerned with the type of sentence they receive.
Many judges feel that sentencing is the most difficult part of their job. Judges are
required to consider a wide variety of factors when deciding on the appropriate sentence. These
factors include the type of offense, the need to protect society, the background and history of the
defendant, the need to deter others from committing crimes, and the need or desire for
rehabilitation of the defendant.

    After considering these factors, the sentencing judge then must select from the available
sentencing options. In many minor cases, particularly minor traffic cases, a defendant is simply
fined. In more serious cases, the judge often must decide between probation and incarceration. If
the judge decides probation is the appropriate sentence, the judge must decide what conditions to
put on probation. If the judge decides that incarceration is appropriate, then the judge must
decide on the length of the sentence and where the sentence should be served.
As discussed earlier, felonies, misdemeanors, petty offenses and traffic offenses are
divided into various classes of sentencing. Felonies are divided into six classes, most of which
are subdivided into extraordinary risk (ER) crimes. Misdemeanors are divided into three classes,
with one ER subdivision.

    Remember that a judge may place a person on probation instead of sentencing the person
to prison, unless that person is not eligible for probation due to the nature of the conviction or the
person's record. If the judge decides to sentence the person to prison, the judge is required to give
a sentence in the "presumptive range" unless there are exceptional circumstances justifying a
longer or shorter sentence. Exceptional circumstances allow the judge to sentence the defendant
within the "exceptional range." For example, a person who has been convicted of a Class 4
felony faces a presumptive sentence of between two and eight years; but if that person convinces
the judge that exceptional mitigating factors exist, the judge can shorten the sentence to as little
as one year.

    If the prosecutor convinces the judge that exceptional aggravating factors exist, the
judge can lengthen the sentence to as much as sixteen years. In addition to a sentence to prison,
the sentencing judge can impose a fine, or can impose both a fine and imprisonment.
The following chart shows the sentence that can be imposed on people convicted of
misdemeanor and traffic offenses in Colorado. Remember that more people are placed on
probation rather than sentenced to jail. Just as with felony sentences, a judge may impose both a
jail sentence and a fine.

MISDEMEANOR SENTENCES IN COLORADO

    Driving under the influence is generally punishable by up to one year in jail, and driving
while ability impaired is generally punishable by up to six months. The penalties increase
depending upon such factors as the defendant’s prior record of alcohol-related offenses on the
amount of alcohol in the defendant’s system. Other serious traffic offenses, those designated
“Class 1” are punishable by up to a year in jail, while “Class 2” traffic offenses are punishable by
up to 90 days in jail. Minor traffic offenses, such as speeding, are generally punishable only by a
fine.

    The prisons in Colorado are full. Most county jails are also full. It is expensive to house
people in jail or prison, and Colorado is always exploring alternatives to traditional incarceration.
The "community corrections" program is one of these alternatives. Community corrections
facilities attempt to provide supervision of offenders that is more structured and extensive that
probation, but less expensive than prison. Judges may sentence an offender directly to
community correction when they believe that the offender needs more supervision than the
probation department can offer, but do not believe that the offender needs to be locked up in
prison. The Department of Corrections can place an offender in community corrections when the
offender is nearing the end of his or her sentence and needs to get adjusted to life outside of
prison.

    Community corrections is much less expensive that prison because the facility is usually
a remodeled house or apartment building rather than an expensive prison, because fewer staff
people are required to supervise the offenders, and because the offenders pay part of the cost of
the program. On the other hand, community corrections facilities are much less secure than
prison: the typical person in community corrections leaves the facility each day to go to work
and can "escape" by simply walking away.

    People who are serving sentences in community corrections have access to more
treatment programs than persons in prison. A very high percentage of the people who are
convicted of crimes have a drug or alcohol problem. Jails and prisons often simply do not have
the money needed to run good drug and alcohol abuse rehabilitation programs. There are many
more such programs in the community itself, and these programs may be available to persons in
a community corrections program.

    Another alternative to traditional incarceration is home detention. Under a home
detention program, an offender is allowed to serve the sentence at home instead of jail.
Compliance with the sentence is monitored by means of electronic ankle bracelets that
automatically notify the authorities if the offender goes too far from the
Home telephone. The bracelet can be programmed to allow the defendant to go to work, or to
sound an alarm if he goes to a restricted area, etc.

THE DEATH PENALTY

    Colorado law provides that certain people convicted of specific serious felonies may be
executed. (See C.R.S. § 18-1.3-1201 et seq.) Execution in Colorado is carried out at the Colorado
State Penitentiary in Canon City by lethal injection. Colorado carried out the execution of Gary
Lee Davis in October 1997.

    In Colorado, only people convicted of a Class 1 felony (first-degree murder, certain types
of child abuse resulting in death, and certain types of first-degree kidnapping) are eligible to
receive the death penalty. The district attorney decides whether to seek the death penalty based
on various factors such as whether the murder was especially heinous or if the defendant has a
particularly bad record.

    If the jury convicts the defendant of a Class 1 felony, the jury is then asked to determine
whether the death penalty is appropriate. The jury makes this decision after hearing additional
evidence from the prosecutor and the defense concerning the appropriate sentence.
At this hearing, the prosecutors must present "aggravating factors" that they believe
justify a sentence of death. The types of aggravating factors that can be presented are limited by
statute. The defense lawyers then have an opportunity to present "mitigating factors" they believe
justify a sentence of life in prison. After the lawyers argue the case, the jury then goes through
four steps to make the decision whether the sentence should be execution or life in prison.
The first step is to decide whether the prosecution has proved the existence of any
aggravating factors.

    If the jury is not convinced there are any aggravating factors, it returns a
sentence of life in prison. If one or more aggravating factor has been proven, the second step is to
consider whether any mitigating factors have been proved. The third step for the jury is to
balance the aggravating factors against the mitigating factors: if it decides the mitigating factors
outweigh the aggravating factors, it should return a sentence of life in prison.
If the jury decides that the aggravating factors outweigh the mitigating factors, it must
proceed to the fourth and final step of deliberations. The fourth step requires the jury to decide
whether the defendant should be sentenced to death or to life in prison (regardless of how it
balanced the aggravating and mitigating factors). In People v. Young, 814 P.2d 834 (Colo. 1991),
the Colorado Supreme Court held that this fourth step was necessary so that the jury could
exercise its moral judgment about the defendant. In this final step, the jurors make individual
moral decisions whether the defendant should live or die.

    Many people believe that racism plays a large part in death penalty cases. In one capital
case, the defendant presented evidence to the U.S. Supreme Court that Georgia was imposing the
death penalty in a racially discriminatory fashion. His evidence showed that the race of the
murder victim was a major factor: a defendant who killed a white person was more likely to be
sentenced to death than a defendant who killed an African-American. The race of the defendant
was also a factor: an African-American defendant was more likely to be sentenced to death than
a white defendant. When these factors were combined, the evidence showed that an African-
American who killed a white person was far more likely to receive a death sentence than any
other racial combination of murderer and victim. The Supreme Court rejected the defendant's
arguments. The Court did not find fault with his statistics, but they did hold that his statistics did
not prove that racism actually played a role in his particular case.

APPEALS

    Every defendant who goes to trial and loses has the right to appeal the conviction. Even
people who plead guilty in a plea bargain may have a limited right to appeal the sentence
imposed on them.

    A court hearing an appeal does not hold a new trial; it only determines whether the judge
who conducted the trial committed any errors of law. No new evidence is presented; the
appellate judges look at a transcript of the trial and decide whether the law was correctly applied
to the facts. With some minor exceptions, appeals from county court are heard in district court
and appeals from district court are heard by the Colorado Court of Appeals.

    A party that is dissatisfied with the result of this first appeal may ask the Colorado
Supreme Court to hear the case. The way this is done is by filing a "Petition for a Writ of
Certiorari." While a party has a right to one appeal, there is no right to make the Supreme Court
hear the case. With a few exceptions, the Supreme Court hears only those cases it wants to hear.
If a party claims that a right guaranteed by the federal constitution has been affected by the
decision of the appellate state court that last decided the case, the party may appeal to the U.S.
Supreme Court.

    The news media report on the decisions of the Colorado and Supreme Courts every week.
Sometimes, as with death penalty cases or abortion cases, these reports receive front-page
newspaper coverage. It is important to remember, however, that only a small number of cases
ever make it to the Supreme Court and many others go unreported by the press. However, all
decisions of the Colorado Court of Appeals and Colorado Supreme Court are available on the
Internet on the website of the Colorado Bar Association, www.cobar.org.
It is also important to remember that an appellate court does not automatically reverse the
decision of the trial court every time an error is discovered. Humans are not perfect, and neither
are trials. A minor error in a trial that did not contribute to the verdict is considered to be
"harmless error." An appellate court will not reverse a verdict on the basis of harmless error.
When the appellate court reverses a conviction, the case is generally returned to the trial court for
a new trial.