First Regular Session

Sixty-first General Assembly

LLS NO. 97­0568.01 JBB SENATE BILL 97­162

STATE OF COLORADO

BY SENATORS Arnold and Coffman.

JUDICIARY

A BILL FOR AN ACT

CONCERNING THE USE OF SUBPOENAS FOR THE PRODUCTION OF TANGIBLE OBJECTS IN CRIMINAL CASES.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

States that rule 16 of the Colorado rules of criminal procedure is the only means to compel production of information from the prosecution, the defendant, and any agency or person hired by the prosecution or defendant. Prohibits the prosecution and defendant from subpoenaing tangible objects from prosecuting attorneys, defense attorneys, law enforcement agencies which investigated or prepared the case against the defendant, defense investigators, or any persons or agencies which the prosecuting attorney, the investigating agency, or the defendant may have employed to assist in the performance of his or her duties.

In criminal cases, requires that a copy of a subpoena for the production of tangible objects be served upon the opposing party and the real party in interest at the time the subpoena is issued. Requires a subpoena to direct that the tangible objects be produced before the court at a time certain and allows the parties to inspect such objects at that time.

States that if a timely motion to quash is filed, compliance is not required until further order of the court. Allows the court to quash or modify a subpoena if compliance would be unreasonable or oppressive.

Specifies that grand jury proceedings are exempt from the discovery provisions.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  Article 9 of title 16, Colorado Revised Statutes, 1986 Repl. Vol., as amended, is amended BY THE ADDITION OF A NEW PART to read:

PART 5

CRIMINAL DISCOVERY

16­9­501.  Discovery of tangible objects. (1)  RULE 16 OF THE COLORADO RULES OF CRIMINAL PROCEDURE SHALL BE THE ONLY MEANS BY WHICH THE PROSECUTION AND THE DEFENDANT MAY COMPEL THE DISCLOSURE OR PRODUCTION OF INFORMATION FROM PROSECUTING ATTORNEYS, DEFENSE ATTORNEYS, LAW ENFORCEMENT AGENCIES WHICH INVESTIGATED OR PREPARED THE CASE AGAINST THE DEFENDANT, DEFENSE INVESTIGATORS, OR ANY PERSONS OR AGENCIES WHICH THE PROSECUTING ATTORNEY, THE INVESTIGATING AGENCY, OR THE DEFENDANT MAY HAVE EMPLOYED TO ASSIST IN THE PERFORMANCE OF HIS OR HER DUTIES.

(2)  NEITHER THE PROSECUTION NOR THE DEFENDANT SHALL SUBPOENA BOOKS, PAPERS, DOCUMENTS, PHOTOGRAPHS, OR OTHER TANGIBLE OBJECTS FROM PROSECUTING ATTORNEYS, DEFENSE ATTORNEYS, LAW ENFORCEMENT AGENCIES WHICH INVESTIGATED OR PREPARED THE CASE AGAINST THE DEFENDANT, DEFENSE INVESTIGATORS, OR ANY PERSONS OR AGENCIES WHICH THE PROSECUTING ATTORNEY, THE INVESTIGATING AGENCY, OR THE DEFENDANT MAY HAVE EMPLOYED TO ASSIST IN THE PERFORMANCE OF HIS OR HER DUTIES.

(3)  UPON THE ISSUANCE OF ANY SUBPOENA, ON A PERSON OTHER THAN A PERSON SPECIFIED IN SUBSECTION (2) OF THIS SECTION, TO PRODUCE BOOKS, PAPERS, DOCUMENTS, PHOTOGRAPHS, OR OTHER TANGIBLE OBJECTS, THE PARTY REQUESTING OR ISSUING THE SUBPOENA SHALL SERVE A COPY OF THE SUBPOENA ON THE OPPOSING PARTY AND THE REAL PARTY IN INTEREST. THE SUBPOENA SHALL DIRECT THAT THE BOOKS, PAPERS, DOCUMENTS, PHOTOGRAPHS, OR OTHER TANGIBLE OBJECTS BE PRODUCED BEFORE THE COURT AT A DESIGNATED TIME PRIOR TO THE HEARING OR TRIAL AT WHICH THEY ARE TO BE OFFERED INTO EVIDENCE. THE COURT SHALL ORDER THAT BOTH THE PROSECUTION AND THE DEFENDANT BE PERMITTED TO INSPECT THE BOOKS, PAPERS, DOCUMENTS, PHOTOGRAPHS, OR OTHER TANGIBLE OBJECTS AT THE TIME THEY ARE PRODUCED FOR THE COURT.

(4)  UPON THE FILING OF A TIMELY MOTION TO QUASH BY AN INTERESTED PERSON OR ENTITY, COMPLIANCE WITH THE SUBPOENA SHALL NOT BE REQUIRED UNTIL FURTHER ORDER OF THE COURT. THE COURT SHALL QUASH OR MODIFY ANY SUBPOENA IF COMPLIANCE WOULD BE UNREASONABLE OR OPPRESSIVE.

(5)  NOTHING IN THIS SECTION SHALL APPLY TO GRAND JURY PROCEEDINGS HELD PURSUANT TO ARTICLE 72, 73, OR 74 OF TITLE 13, C.R.S.

SECTION 2.  Effective date ­ applicability. This act shall take effect upon passage and shall apply to subpoenas issued on or after said date.

SECTION 3.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.