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Can I Obtain A Colorado Police Officer’s Records? – The Law
By H. Michael Steinberg Colorado Violent Crimes Criminal Defense Lawyer
Can I Obtain A Colorado Police Officer’s Records? – The Law – When a person is charged with a Colorado violent cime such as Second Degree Assault On A Police Officer – the defense may be self defense that is – the officer used excessive force. In these cases is maybe critical to obtain the officer’s professional history of possible past complaints and internal affairs investigations lodged against him or her.
Obviously, and with understandable justification the police fight hard to prevent the disclosure of this material. This article addresses the Colorado law in this area.
The Basis For The Defense Motion And Subpoena For An Officer’s Personnel File
When a police officer has been caught lying in a police report, or it is disocvered that he has viciously and unnecessarily assaulted others in the performance of his duties, it is clear that he has placed his professional history into play.
An experienced Colorado criminal defense lawyer, upon learning this information (se Brady Disclosures below) should then file a Motion to Disclose that officer’s personnel file.
After the Motion and Subpoena Ducas Tecum is filed – be prepared for a long and difficult fight.
The Privacy Rights Of Colorado Police
To obtain these records the Defense must demonstrate the relevance and materiality of the information in advance to overcome a police officers right to privacy. If that is done to the satisfaction of the Trial Judge – there is usually a procedure where the judge will review the materials privately (called an in camera review) and then – upon disclosure of the relevant materials (if they exist) order the limited disclosure and use of the records to the materials released. It is rare that the entire file is just handed over to the Defense.
Furthermore, a protective order as regards the use of the personnel file is often ordered should any of the materials be disclosed.
It Is Difficult To Obtain Personnel Records For A Colorado Police Officer – The Law
The law in the area of the privacy rights of a police officer is governed by a very well known “right to confidentiality” Colorado Supreme Court case – (and the cases decided thereafter ). That case is Martinelli v. District Court, 612 P.2d 1083, 1091 (Colo. 1980).
The Court’s will not permit what Judge’s love to call a “fishing expedition” into an officer’s private files without a substantial showing of proof.
Known as the five-part Spykstra test – to make the proper showing of relevancy and materiality, the Defense must show to the Judge that:
(1) there is a reasonable likelihood that the subpoenaed material exists;
(2) that the materials are evidentiary and relevant;
(3) that the materials are not otherwise procurable reasonably in advance of trial by the exercise of due diligence;
(4) that the requesting party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and
(5) that the application is made in good faith and is not intended as a general fishing expedition.
What Typically Touches Off The Demand For A Police Officer’s Personnel Files
The Information Sought Must Be More Than A Hunch
To succeed in a Defense request for Colorado police personnel records, the request itself must be more than an allegation that there may be information contained in the police officer’s file which “could be” relevant to the Defense.
Furthermore – if the records sought are protected by a privilege or right to confidentiality, the requesting party also must make a greater showing of need for the information. The balancing act of the officer’s privacy versus the need for the information – becomes more difficult for the Trial Judge.
The “Brady Rule” Mandates The Prosecution To Open The Door To Other Critically Important Evidence To The Defense
The “Brady Rule” requires the prosecution to disclose favorable evidence that is material to the defendant’s guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963).
A “due process” violation under the “Brady Rule” requires the defense to prove:
1) that the government suppressed evidence;
2) that the evidence would have been favorable to the defendant: and
3) that the suppressed evidence was material to the case at hand.
Even when the Defense is “tipped off” to exculpatory information in favor of the Defense case – even when there is potential that this Brady Material could lead to further relevant and usable material in the a police officer’s files – the Defendant must meet a burden of showing how any of the information contained in the Officer’s files could would override a Policer’s Officer’s privacy interest in the Officer’s records.
The right of Police Officer’s confidentiality to his personnel records is not absolute. Courts must engage in a balancing process when applying the right in a specific case.
The Trial Court is required to engage in a “tripartite balancing inquiry:”
(1) whether the claimant has a legitimate expectation that the materials or information will not be disclosed;
(2) whether disclosure is nonetheless required to serve a compelling state interest; and
(3) if so, whether the necessary disclosure will occur in the least intrusive manner.
The test for whether an officer has a legitimate expectation that the materials or information will not be disclosed is comprised of two parts:
(1) an actual or subjective expectation that the information will not be disclosed, as, for example, by showing that the officer divulged the information to the state pursuant to an understanding that it would be held in confidence or that the state would disclose the information for stated purposes only; and
(2) that the material or information which the officer seeks to protect against disclosure is “highly personal or sensitive” and that its disclosure would be offensive and objectionable to a reasonable person of ordinary sensibilities.
Can I Obtain A Colorado Police Officer’s Records? – The Law
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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 at your side every step of the way – advocating for justice and the best possible result in your case.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney 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.
“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”
You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 30 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 -. Can I Obtain A Colorado Police Officer’s Records? – The Law
Other Articles of Interest:
- Colorado Criminal Law – The Law Of “Fresh Pursuit” – Can The Police Chase You Into Another County Or State?
- The Police Cannot Create Their Own Exigent (Emergency) Circumstance To Violate Your Rights In Colorado
- Colorado Violent Crimes – A Time For Strategy – A Time For Experience
- The Colorado Crime Of Vehicular Assault 18-3-205
- Colorado Assaults On Police Officers – Dangerous Laws 18-3-203 & 18-3-204
