Articles Posted in Criminal Law

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photo_59583_20160110Colorado law requires all people arrested for any Felony offense to submit a DNA sample in relation to arrests on or after September 20, 2010.  Felony offenses include those charged by complaint, information, and indictment.  It even includes those not arrested who appear in court on a summons.

The law enforcement agency who completes the booking is responsible for the DNA collection process.  If DNA is not collected through the booking process then the Court is required to order the defendant to submit to DNA collection through the investigating agency responsible for the fingerprints in the case.

Law enforcement officers are authorized to use reasonable force to collect a DNA sample and thereafter are required to submit the sample to the Colorado Bureau of Investigation (CBI) for testing.  If a defendant’s DNA sample is already on file with CBI, then the law enforcement agency should not collect a new DNA sample.

Fortunately for those who’ve had their cases dismissed outright, have been found not guilty at trial, resolved their case to a Misdemeanor rather than a Felony offense, or were arrested but never charged, a process exists to expunge the collected DNA.  The process goes through the CBI rather than the Colorado court system.

A written request must be submitted to the CBI including the following information: date of arrest, or other date when the DNA sample was collected, the person’s name, date of birth, and address, the police agency which collected the DNA, a listing of the charges filed, which court the case is in, the case number, and a declaration that the person’s case qualifies for expungement.

Thereafter, the CBI submits an inquiry to the district attorney’s office who prosecuted the case.  Within 90 days after the CBI receives a request to expunge DNA, the CBI shall destroy the DNA and the results of the testing from both the state index system and the federal combined DNA index system unless the CBI receives notice from the district attorney’s office that the person does not qualify to have his/her DNA expunged.

Within  30 days after CBI receives notice from the district attorney’s office or at the end of the 90 day period referenced-above, whichever is earlier, CBI shall notify the person making the request that the DNA has been destroyed and the record expunged or why CBI didn’t destroy and expunge the records.

DNA evidence shall not be used against a person in a criminal case if the DNA was required to be destroyed and expunged or obtained after the deadline for destruction or expungement.

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POLICE-10-763x1024In a recent Colorado Supreme Court case, Davis v. People, Supreme Court Case No. 10SC460, the Court held that:

“[L]aw enforcement officials may testify about their perception of a witness’s credibility during an investigative interview. We hold that such testimony is admissible when it is offered to provide context for the detectives’ interrogation tactics and investigative decisions.”

A witness typically cannot comment on the credibility of another witness. And it is up to the jury to decide which witnesses should or should not be believed. In other words, credibility issues are for the jury.

In Davis v. People, a detective had commented in trial that he didn’t believe a witness he was interviewing and that the “interview” started out conversational and then transitioned into confrontational. The defense attorney objected on the basis that a witness can’t comment on the credibility of another witness. This objection was overruled by the court. The detective witness was essentially given permission to comment on the credibility of another witness to show how and why the “interview” proceeded as it did. The court found this evidence was admissible to show the context for the detectives interrogation tactics and investigative decisions.

Some of the line of questioning objected to by the defense at trial was as follows:

“Q: Now in the early part of that interview when it was less confrontational . . . . was [she] giving you information about the shooting?
A: Not really, no.
Q: All right, and is that one of the reasons why the interview got confrontational?
A: It did.
Q: Can you explain to the jury why it happened that way?
A: Well, I know I didn’t believe and I guess I can–”

The trial court further allowed the following line of questioning:

“Q: Is that one of the techniques you used with [E.W.] as well?
A: It is.
Q: To be candid, in your opinion at the time was it your assessment that she did perhaps have some level of involvement?
A: Yes.
Q: All right, and so after – did you let it be known to [E.W.] that you asked whether she was telling the truth?
A: Yes.
Q: And did you let [E.W] know that you still suspected her of having greater involvement in the crime than she was admitting to?
A: Yes.
Q: All right, and is that sort of at the point where the interview got more confrontational?
A: Yes.
Q: And after the interview got more confrontational, did the information that [E.W.] gave you change?
A: Yes.
Q: And did she give you some information that you were able to subsequently use in the investigation of this case?
A: Yes, she did.”

It’s important to note that under the Colorado Rules of Evidence, CRE404(a), “[e]vidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.” And CRE 608(a) permits evidence of a witness’s character for truthfulness or untruthfulness to be admitted after that character has been attacked. However, the Court clearly found the evidence admissible in this case limited context of an investigative interview.

The Colorado Supreme Court seems to draw a distinction in the Davis v. People case in finding that the detective testifying in the case was not commenting on the veracity of the testimony of the witness at trial. Instead, the detective was commenting on the veracity of the witness during the interviews prior to trial:

“The detectives’ answers referred not to the credibility of the witnesses’ in-court testimony, which determination undoubtedly falls within the jury’s purview, but rather to the detectives’ assessments of the interviewees’ credibility during the interviews conducted prior to trial…[f]or these reasons, we conclude that the detectives’ testimony did not constitute an improper credibility opinion under these circumstances.”
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