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16-5-209. Judge may require prosecution

Text

The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with the judge alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may require the prosecuting attorney to appear before the judge and explain the refusal. If after that proceeding, based on the competent evidence in the affidavit, the explanation of the prosecuting attorney, and any argument of the parties, the judge finds that the refusal of the prosecuting attorney to prosecute was arbitrary or capricious and without reasonable excuse, the judge may order the prosecuting attorney to file an information and prosecute the case or may appoint a special prosecutor to do so. The judge shall appoint the special prosecutor from among the full-time district attorneys, assistant district attorneys, or deputy district attorneys who serve in judicial districts other than where the appointment is made; except that, upon the written approval of the chief justice of the supreme court, the judge may appoint any disinterested private attorney who is licensed to practice law in the state of Colorado to serve as the special prosecutor. Any special prosecutor appointed pursuant to this section shall be compensated as provided in section 20-1-308, C.R.S.

History

History.
Source: L. 72: R&RE, p. 217, 1. C.R.S. 1963: 39-5-209. L. 77: Entire section amended, p. 858, 1, effective May 24. L. 2000: Entire section amended, p. 454, 12, effective April 24.

Annotations

ANNOTATION

Purpose of this section is to allow persons who believe that a prosecuting attorney is not pursuing a case with diligence to petition the court to review the status of the case. Dohaish v. Tooley, 670 F.2d 934 (10th Cir.), cert. denied, 459 U.S. 826, 103 S. Ct. 60, 74 L. Ed. 2d 63.

This section provides a remedy only for a district attorneys refusal to file charges, not for refusal to investigate criminal charges. Kailey v. Chambers, 261 P.3d 792 (Colo. App. 2011).

The scope of appellate court review under this section is a mixed question of law and fact. A district courts factual findings resulting from an evidentiary hearing may only be disturbed if clearly erroneous and not supported by the record. However, the district courts application of the statutory standard may be reviewed de novo. J.S. v. Chambers, 226 P.3d 1193 (Colo. App. 2009).

Evidence necessary for judge to substitute judgment. A district judge should not, in the absence of clear and convincing evidence that the terms of this section have been met, substitute his judgment or discretion for that of the prosecutor in a criminal case. Tooley v. District Court, 190 Colo. 468, 549 P.2d 772 (1976).

The district attorneys decision not to prosecute a case may not be challenged unless there is a showing that his decision was arbitrary or capricious. People ex rel. Losavio v. Gentry, 199 Colo. 153, 606 P.2d 57 (1980); Sandoval v. Farish, 675 P.2d 300 (Colo. 1984).

District attorneys decision not to prosecute a woman for alleged theft by deception was not proved to be arbitrary or capricious and without reasonable excuse, and therefore the judge could not substitute his judgment or discretion for that of the prosecutor. Landis v. Farish, 674 P.2d 957 (Colo. 1984).

There must be a clear and convincing showing that the prosecutors decision not to prosecute was arbitrary and capricious and without reasonable excuse before the court will order prosecution or the appointment of a special prosecutor. The courts finding that there were credibility issues with the alleged victims claims, the lack of specificity regarding the where and when the events occurred, and the passage of time show the courts decision was not arbitrary and capricious. Kailey v. Chambers, 261 P.3d 792 (Colo. App. 2011).

The first step for a court to consider is whether a prosecuting attorney has made a decision not to prosecute. This section requires a refusal to prosecute for the inquiry to continue. Kailey v. Chambers, 261 P.3d 792 (Colo. App. 2011).

Challenging party has the burden of proof and even a strong showing does not shift the burden of proof to the prosecutor. Moody v. Larsen, 802 P.2d 1169 (Colo. App. 1990); J.S. v. Chambers, 226 P.3d 1193 (Colo. App. 2009).

This section provides for a prosecutors appearance at a court-ordered hearing to explain the refusal to prosecute. The statute does not require the prosecutor to present evidence. J.S. v. Chambers, 226 P.3d 1193 (Colo. App. 2009).

This section calls for the usual type of hearing in which both parties are given the opportunity to present evidence and argument. Moody v. Larsen, 802 P.2d 1169 (Colo. App. 1990).

Each party has the right to present rebuttal evidence to the testimony of a witness concerning a material issue, including the right to call witnesses for such purpose. Moody v. Larsen, 802 P.2d 1169 (Colo. App. 1990).

Actions brought under this section are special statutory proceedings not exempted from application of the rules of civil procedure because this section lacks an adequate, exclusive, full, and complete procedure. To hold otherwise is to render the legislatures mechanism for prevention of prosecutorial abuses a hollow shell and is not consonant with sound judicial administration. Trial court thus erred in denying challenging partys requests for discovery and a continuance to permit discovery and in failing to exercise its discretion concerning whether to allow discovery. Moody v. Larsen, 802 P.2d 1169 (Colo. App. 1990).

The amendment to this section in 2000 effectively eliminated the right to formal discovery and the right to a full evidentiary hearing. Consequently, the trial court may, at its discretion, provide for an evidentiary hearing after it has considered the petitioners affidavit, the explanation of the district attorney, if required by the court, and any argument of the parties. Schupper v. Smith, 128 P.3d 323 (Colo. App. 2005).

The 2000 amendment also established that this section creates a special statutory proceeding that is exempted from application of the rules of civil procedure. Schupper v. Smith, 128 P.3d 323 (Colo. App. 2005).

This section does not require the court to require the prosecuting attorney to appear before the court and explain the refusal to prosecute. Kailey v. Chambers, 261 P.3d 792 (Colo. App. 2011).

This section contemplates that the prosecuting attorney may appear in person before the court and explain the refusal to prosecute. Schupper v. Smith, 128 P.3d 323 (Colo. App. 2005).

Under this section, the prosecuting attorney is the only individual who may be ordered to prosecute a case; therefore, dismissal of assistant attorneys from proceeding brought under this section is proper. Schupper v. Smith, 128 P.3d 323 (Colo. App. 2005).

District attorneys explanation for declining to prosecute identified reasons that were supported by some competent evidence and were proper factors under Sandoval v. Farish, 675 P.2d 300 (Colo. 1984). The district attorneys analysis of factors in support of declining prosecution were not so overwhelmed by factors that favor prosecution as to compel the conclusion that the district attorneys exercise of broad discretion was arbitrary and capricious. J.S. v. Chambers, 226 P.3d 1193 (Colo. App. 2009).

 

Part 3. Preliminary Hearing

16-5-301. Preliminary hearing or waiver - dispositional hearing