18-1-417. Ineffective assistance of counsel claims - waiver of confidentiality.

Statute text

(1) Notwithstanding any other provision of law, whenever a defendant alleges ineffective assistance of counsel, the defendant automatically waives any confidentiality, including attorney-client and work-product privileges, between counsel and defendant, and between the defendant or counsel and any expert witness retained or appointed in connection with the representation, but only with respect to the information that is related to the defendant's claim of ineffective assistance. After the defendant alleges ineffective assistance of counsel, the allegedly ineffective counsel and an expert witness may discuss with, may disclose any aspect of the representation that is related to the defendant's claim of ineffective assistance to, and may produce documents related to such representation that are related to the defendant's claim of ineffective assistance to the prosecution without the need for an order by the court that confidentiality has been waived.

(2) If the allegedly ineffective counsel or an expert witness has released his or her file or a portion thereof to defendant or defendant's current counsel, defendant or current counsel shall permit the prosecution to inspect and copy any or all portions of the file that are related to the defendant's claim of ineffective assistance upon request of the prosecution.

History

Source: L. 2005: Entire section added, p. 424, 2, effective April 29.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Trial Counsel's Continued Duty of Confidentiality in Postconviction Proceedings", see 48 Colo. Law. 32 (Dec. 2019).

For an ineffective assistance of counsel claim, (1) when alleged, the defendant automatically waives attorney-client privilege, but only for information related to the claim; (2) the procedures set forth in Crim. P. 35(c)(3)(V) do not modify this statute; (3) it is improper for the prosecution to request an order for or subpoena covered information because the waiver is automatic; (4) the prosecution does not have an inherent right to an in camera review of the allegedly ineffective counsel's file; and (5) the court may grant an in camera review of the entire file if the People v. Madera, 112 P.3d 688 (Colo. 2005), standard is satisfied. People v. Cortes-Gonzalez, 2022 CO 14, 506 P.3d 835.

PART 5
PRINCIPLES OF CRIMINAL CULPABILITY

Annotations

Law reviews: For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to erroneous malice presumption, see 15 Colo. Law. 1616 (1986).