2019 COA 11
Colo. Ct. App.2019Background
- Defendant reported a sexual assault; SANE exam collected DNA samples that excluded the roommate but matched a coworker.
- Prosecutors, a DA investigator, and a police detective went to defendant’s home, videotaped an interview in which they told her the DNA implicated the coworker, and the meeting included family members in the room.
- After the interview, prosecutors charged defendant with two counts of attempting to influence a public servant and one count of false reporting.
- Defendant moved to suppress the videotape and argued the prosecution’s conduct was outrageous; the trial court dismissed the charges on outrageous-government-conduct grounds and allowed defense subpoena of a prosecutor (prosecution invoked work-product objections at the hearing).
- The People appealed; the Court of Appeals reversed, concluding the trial court’s factual findings did not support a due-process dismissal and remanded to reinstate charges and address remaining motions (including suppression for psychological coercion).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal was warranted for outrageous government conduct | Prosecutors argue dismissal was error because conduct did not violate due process | Burlingame argued prosecution’s conduct (videotaping, large presence, privilege assertions, Victim Rights Act violation) was outrageous and deprived due process | Reversed: trial court abused discretion; facts did not meet extraordinary threshold for outrageous conduct |
| Whether videotaping the interview alone constituted outrageous conduct | Videotaping was lawful investigative technique | Videotaping at her home with many officials was coercive and unprecedented | Videotaping alone is not outrageous given state investigatory authority |
| Whether prosecution’s invocation of work-product privilege supported dismissal | Privilege assertions were proper and not evidence of impropriety | Persistent privilege use blocked inquiry into motives, showing intent to target defendant | Work-product objections were largely proper and cannot form basis for outrageous-conduct dismissal |
| Proper standard of appellate review for outrageous-government-conduct claims | People applied abuse-of-discretion as used by Colorado precedent | Burlingame relied on deferential standard below; some amici/concurring opinion urged de novo review of ultimate due-process determination | Majority applied abuse-of-discretion review and found trial court abused discretion; separate concurrence urged mixed-review: defer to factual findings unless clearly erroneous, but review ultimate legal conclusion de novo and urged Supreme Court reconsider standard |
Key Cases Cited
- People v. McDowell, 219 P.3d 332 (Colo. App. 2009) (discussing review and rarity of outrageous-government-conduct findings)
- People v. Medina, 51 P.3d 1006 (Colo. App. 2001) (describing outrageous conduct standard as violating fundamental fairness)
- Mata-Medina v. People, 71 P.3d 973 (Colo. 2003) (affirming aspects of Medina)
- People v. Auld, 815 P.2d 956 (Colo. App. 1991) (upholding dismissal where prosecution fabricated charges)
- Bailey v. People, 630 P.2d 1062 (Colo. 1981) (recognizing outrageous-government-conduct due-process concept)
- People in Interest of M.N., 761 P.2d 1124 (Colo. 1988) (addressing standard and trial-court role in outrageous-conduct claims)
- Quintano v. People, 105 P.3d 585 (Colo. 2005) (noting de novo review for some due-process claims)
- United States v. Pedraza, 27 F.3d 1515 (10th Cir. 1994) (reviewing outrageous-government-conduct claims de novo)