2018 CO 40
Colo.2018Background
- Defendant David Ehrnstein was convicted by a jury of one count of incest and filed a motion for a new trial alleging prosecutorial misconduct: that a prosecutor instructed the victim (L.E.) or a victim advocate to avoid a defense subpoena.
- At trial defense counsel attempted to call a witness to impeach L.E. with prior inconsistent statements; the prosecution objected and the court denied relief, prompting defense to attempt to serve L.E. with a subpoena.
- Defense investigators alleged L.E. refused service after someone in her home made a call and reported she would not accept the subpoena. Family members reported overhearing a conversation in court in which a prosecutor allegedly instructed the victim advocate to tell L.E. not to answer the door.
- Before fully hearing the new-trial motion, the trial court sua sponte concluded Colo. RPC 3.7 (the advocate‑witness rule) compelled appointment of a special prosecutor for the new‑trial hearing and ordered one appointed.
- The People brought an interlocutory appeal; the Colorado Supreme Court reviewed whether the trial court abused its discretion by appointing a special prosecutor based on Colo. RPC 3.7.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colo. RPC 3.7 required appointment of a special prosecutor for the post‑trial new‑trial hearing | People: disqualification was improper; trial court erred in appointing special prosecutor | Ehrnstein: advocate‑witness rule prevents prosecutors who are witnesses from acting as advocates at the hearing; special prosecutor was required | Reversed: Colo. RPC 3.7 does not require appointment here because its purpose (avoiding jury confusion) is not implicated in a post‑trial bench proceeding |
Key Cases Cited
- Fognani v. Young, 115 P.3d 1268 (Colo. 2005) (explaining advocate‑witness rule targets advocacy at trial and aims to prevent jury confusion)
- People v. Epps, 406 P.3d 860 (Colo. 2017) (district court abuse of discretion standard and broad discretion on DA disqualification)
- People v. Garcia, 698 P.2d 801 (Colo. 1985) (Rule 3.7 purpose: separate advocate and witness roles to protect adversary process)
- DeLong v. Trujillo, 25 P.3d 1194 (Colo. 2001) (abuse of discretion includes legal misapplication)
- People in Interest of S.G., 91 P.3d 443 (Colo. App. 2004) (Rule 3.7 permits counsel who may be witnesses to handle litigation roles short of trial)