The Colorado Bill of Rights and Colorado Criminal Process

Denver, Colorado Criminal Defense Attorney H. Michael Steinberg provides vigorous representation for his clients through every stage of the criminal trial process. It is a critical process that demands diligent legal representation from the initial criminal investigation through any final appeal.

The foundation of the American criminal judicial process is based upon the Fifth Amendments prohibition that no individual shall be denied life or liberty without the benefit of due process and equal protection of the law. The Founding Fathers were dedicated the principle of establishing an adversarial system of justice that rejected all the features of European inquisitorial systems of justice. They developed a concept of due process of law that extended to the individual a panoply of protections against the arbitrary power of the government. These due process protections were stated in the Sixth Amendment to the United States Constitution:

Article II, Bill of Rights

The Colorado Bill of Rights as they related to Colorado Criminal Cases

In order to assert our rights, acknowledge our duties, and proclaim the principles upon which our government is founded, we declare:

….

Section 6. Equality of justice. Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.

[Colorado Search and Seizure Protection]

Section 7. Security of person and property – searches – seizures -warrants. The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place or seize any person or things shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.

[Requirement of Charging Someone With a Felony[

Section 8. Prosecutions – indictment or information. Until otherwise provided by law, no person shall, for a felony, be proceeded against criminally otherwise than by indictment, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger. In all other cases, offenses shall be prosecuted criminally by indictment or information.

[Ex Post Facto Prohibition – After the Fact Laws]

Section 11. Ex post facto laws. No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly.

[Rights in Criminal Cases]

Section 16. Criminal prosecutions – rights of defendant. In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

[The Colorado Victims’ Bill of Rights Law]

Section 16a. Rights of crime victims. Any person who is a victim of a criminal act, or such person’s designee, legal guardian, or surviving immediate family members if such person is deceased, shall have the right to be heard when relevant, informed, and present at all critical stages of the criminal justice process. All terminology, including the term “critical stages”, shall be defined by the general assembly.

[As enacted November 3, 1992 – Effective upon proclamation of the Governor, January 14, 1993. (For the text of the amendments and the votes cast thereon, see L. 91, p. 2031 and L. 93, p. 2154.)]

[The Colorado Prohibition Against Self Incrimination]

Section 18. Crimes – evidence against one’s self – jeopardy. No person shall be compelled to testify against himself in a criminal case nor shall any person be twice put in jeopardy for the same offense. If the jury disagree, or if the judgment be arrested after the verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy.

[Colorado Constitutional Bail Laws]

Section 19. Right to bail – exceptions. (1) All persons shall be bailable by sufficient sureties pending disposition of charges except:

(a) For capital offenses when proof is evident or presumption is great; or

(b) When, after a hearing held within ninety?six hours of arrest and upon reasonable notice, the court finds that proof is evident or presumption is great as to the crime alleged to have been committed and finds that the public would be placed in significant peril if the accused were released on bail and such person is accused in any of the following cases:

(I) A crime of violence, as may be defined by the general assembly, alleged to have been committed while on probation or parole resulting from the conviction of a crime of violence;

(II) A crime of violence, as may be defined by the general assembly, alleged to have been committed while on bail pending the disposition of a previous crime of violence charge for which probable cause has been found;

(III) A crime of violence, as may be defined by the general assembly, alleged to have been committed after two previous felony convictions, or one such previous felony conviction if such conviction was for a crime of violence, upon charges separately brought and tried under the laws of this state or under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States which, if committed in this state, would be a felony; or

(2) Except in the case of a capital offense, if a person is denied bail under this section, the trial of the person shall be commenced not more than ninety days after the date on which bail is denied. If the trial is not commenced within ninety days and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set the amount of the bail for the person.

(2.5) (a) The court may grant bail after a person is convicted, pending sentencing or appeal, only as provided by statute as enacted by the general assembly; except that no bail is allowed for persons convicted of:

(I) Murder;

(II) Any felony sexual assault involving the use of a deadly weapon;

(III) Any felony sexual assault committed against a child who is under fifteen years of age;

(IV) A crime of violence, as defined by statute enacted by the general assembly; or

(V) Any felony during the commission of which the person used a firearm.

(b) The court shall not set bail that is otherwise allowed pursuant to this subsection (2.5) unless the court finds that:

(I) The person is unlikely to flee and does not pose a danger to the safety of any person or the community; and

(II) The appeal is not frivolous or is not pursued for the purpose of delay.

(3) This section shall take effect January 1, 1995, and shall apply to offenses committed on or after said date.

Section 20. Excessive bail, fines or punishment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

[The Colorado Right to Trial by Jury]

Section 23. Trial by jury – grand jury. The right of trial by jury shall remain inviolate in criminal cases; but a jury in civil cases in all courts, or in criminal cases in courts not of record, may consist of less than twelve persons, as may be prescribed by law. Hereafter a grand jury shall consist of twelve persons, any nine of whom concurring may find an indictment; provided, the general assembly may change, regulate or abolish the grand jury system; and provided, further, the right of any person to serve on any jury shall not be denied or abridged on account of sex, and the general assembly may provide by law for the exemption from jury service of persons or classes of persons.

[The Colorado Right to Due Process]

Section 25. Due process of law. No person shall be deprived of life, liberty or property, without due process of law.

Equal protection and additional due process protections were later expanded by the Fourteenth Amendment to the United States Constitution and made applicable to all the States:

•Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Colorado Constitution contains the rules for how our state government operates. A main premise of the Constitution is that the people of Colorado give the government its power.

The Original Colorado Constitution was written in 1876. It has changed, or been amended, over 20 times since then. The Constitution can only be changed if a majority of voters approve the change.

In Colorado, Article II1, of the Colorado Constitution outlines the “rights” of any individual accused of a crime:

The right to counsel, privilege against self-incrimination, and trial by jury have been the touchstone of due process of law rooted in the foregoing constitutional provisions. All other due process/equal protection rights emanated from this trilogy of constitutional guarantees. The following are the abbreviated stages of the criminal trial process during which these guarantees should be remembered and forced into play:

• During police investigations that collect physical and eyewitness evidence designed to identify and arrest a suspect for the offense committed.

• In the investigatory stage a suspect enjoys the protection from unreasonable searches and seizures by law enforcement authorities.

• In the investigatory stage a suspect has a right to retain counsel of his choice.

• Once taken into custody a suspect has a right to silence, appointed counsel if he/she cannot afford one, and right to reasonable bail (unless bail is barred by law in capital cases).

• The decision by the State’s prosecuting attorney, who has tremendous discretion in these matters, to decide, first, whether the suspect should be prosecuted, and, second, if so, for what charge he/she should be prosecuted.

• Charging decisions can be determined through a preliminary hearing or presentation of the case to a grand jury.

• Once the State has leveled a specific charge, the suspect becomes the accused who can then challenge the substance of the State’s case through pretrial motions and statutory regulated discovery.

• Pretrial preparation includes informal exchanges and negotiations between the defense attorney and prosecutor designed to protect the accused from “overcharging” and prosecutorial misconduct.

The Sixth Amendment right to an attorney attaches at the initiation of the adversarial process whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. See: Brewer v. Williams, 430 U.S. 387, 398 (1977). At least after a formal charge has been filed an accused has the absolute right to rely upon an attorney as a constitutional buffer between him/her and the State. See: Maine v. Moulton, 474 U.S. 159, 176 (1985). A formal charge transforms the suspect into an accused. See: Kirby v. Illinois, 406 U.S. 682, 689 (1972). The accused at this point in the adversarial process “finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law” with the need for a skilled criminal defense attorney. Id.

In Colorado, the adversarial criminal trial process commences when an individual is arrested pursuant to a warrant obtained through a complaint filed with a court. From this juncture forward, the accused enjoys the right to assistance of counsel at every “critical stage” of the prosecution. A pretrial stage is considered “critical” if the accused needs assistance in coping with legal problems or assistance in meeting his adversary. Any post-indictment police interrogation is certainly a “critical stage.”

H.Michael Steinberg is committed to providing skilled advocacy in his criminal defense work, and protection of the individual from the awesome powers of the State. He stands ready to assist, and defend, anyone facing the investigatory and prosecutorial powers of the State.

What You Should Know About the Criminal Trial Process

Vigorous representation at every stage of a criminal case:

The Initial Investigation

Mr. Steinberg’s practice is to take an aggressive posture as soon as an individual believes that he or she is a target or suspect regarding criminal activity.

Unless special circumstances exist, Mr. Steinberg advises all clients to remain silent when contacted by law enforcement officials.

It is natural to believe that you can convince someone of your innocence or talk yourself out of the situation. In most cases, however, speaking directly with law enforcement officials will significantly impair your ability to present the best possible defense.

In short, do not speak to anyone about criminal allegations for which you could be a target. Do not speak to law enforcement authorities without your lawyer present.

The Arrest

If you are arrested, please remember that you have the right to remain silent and the right to an attorney. These rights can easily be lost if you are not careful and do not understand the criminal investigation process.

Please understand that everything you say WILL be used against you. Investigators often indicate that suspects will receive better or special treatment if they will cooperate and speak freely. Everyone should understand that police officers/investigators have no legal authority to make agreements that bind the State. Therefore, they cannot make things better for you after charges are filed. An investigator may also suggest that an innocent person has nothing to hide and therefore does not need a lawyer. These are common investigative techniques used to press an individual for information and cooperation.

Mr. Steinberg strongly advises that his clients not speak with law enforcement officers without the presence of a lawyer.

The Grand Jury

The grand jury hears evidence presented by the district attorney’s office and then decides whether to issue an indictment. The grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges.

While grand juries are sometimes described as performing accusatory and investigatory functions, the grand jury’s principal function is to determine whether or not there is probable cause to believe that one or more persons committed a certain offense within the venue of the court. Thus, it has been said that a grand jury has but two functions — to indict or, in the alternative, to return a “no-bill.” See Wright, Federal Practice and Procedure, Criminal Section 110.

The grand jury’s power, although expansive, is limited by its function toward possible return of an indictment. Costello v. United States, 350 U.S. 359, 362 (1956). Accordingly, the grand jury cannot be used solely to obtain additional evidence against a defendant who has already been indicted. United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert. denied sub nom., Hurt v. United States, 429 U.S. 1062 (1977). Nor can the grand jury be used solely for pre-trial discovery or trial preparation. United States v. Star, 470 F.2d 1214 (9th Cir. 1972). After indictment, the grand jury may be used if its investigation is related to a superseding indictment of additional defendants or additional crimes by an indicted defendant. In re Grand Jury Subpoena Duces Tecum, Dated January 2, 1985, 767 F.2d 26, 29-30 (2d Cir. 1985); In re Grand Jury Proceedings, 586 F.2d 724 (9th Cir. 1978).

The grand jury has broad powers to subpoena witnesses regarding criminal allegations. In fact, once subpoenaed by the grand jury, an individual cannot refuse to appear. This power to subpoena witnesses also applies to the suspects of the grand jury’s investigation. While a suspect cannot refuse to appear before the grand jury, they may, however, refuse to answer specific questions if the response to that question could tend to incriminate them.

A witness or suspect called before the grand jury has no right to have their attorney present during the proceedings. Therefore, Mr. Floyd insists on thoroughly preparing his clients prior to their appearance before the grand jury.

Remember:

You may refuse to answer any question if a truthful answer to the question would tend to incriminate you.

Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding.

Trial

“The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. 23 [391 U.S. 145, 156] Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action.

Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power – a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.

Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.” – United States Supreme Court Justice Byron White, Duncan v. Louisiana, 391 U.S. 145 (1968).

Mr. Steinberg strongly believes that extensive trial preparation is the key to conducting a successful trial. Once retained to represent a client, Mr. Steinberg fully investigates the facts surrounding the case and all relevant legal issues that could be raised at trial. Each case is different and will require a defense carefully constructed to the specific facts and concerns of the case.

Preparation is the key to success.

Appeal

An individual convicted of a crime has a very short time in which to file a notice of appeal. If you should wish to appeal a conviction, it is urgent that you contact an attorney immediately as time is of the essence.