People v. District Court of El Paso County, 89SA132

Decision Date23 April 1990
Docket NumberNo. 89SA132,89SA132
Citation790 P.2d 332
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT OF EL PASO COUNTY, and the Honorable Steven T. Pelican, one of the Judges thereof, Respondents.
CourtColorado Supreme Court

John Suthers, Dist. Atty., and Gordon R. Denison, Deputy Dist. Atty., Colorado Springs, for petitioner.

David F. Vela, State Public Defender, and Theresa M. Cisneros and Nancy J. Lichtenstein, Deputy State Public Defenders, Colorado Springs, for respondents.

Norman S. Early, Jr., Dist. Atty., and Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Denver, for amicus curiae, Denver Dist. Atty.

Justice LOHR delivered the Opinion of the Court.

In this original proceeding under C.A.R. 21, we issued a rule directing the respondent, El Paso County District Court, 1 to show cause why a writ should not issue determining that the district court abused its discretion in ordering certain discovery and in disqualifying the entire District Attorney's Office for the Fourth Judicial District from participating in People v. Richard Allen Fink, No. 88CR2163. The district court disqualified the prosecutor in that case and all members of the district attorney's office after ordering the prosecutor to produce and decipher notes from an interview of the complaining witness conducted by him in preparation for trial, submit to an interview by defense counsel and be endorsed as a witness for the defense. The district court's actions were based on defense counsel's argument that under former Crim.P. 16(I)(a)(1), 2 a prosecutor who takes a witness statement during an interview conducted in preparation for trial incurs an obligation to disclose the statement, whether exculpatory or inculpatory, to the defense. We disagree with the standard applied by the district court in determining whether a prosecutor's notes of witness interviews need be disclosed, and remand the case for reconsideration under the proper standards. We also vacate the court's order to disqualify the entire district attorney's office and direct the district court to reconsider the disqualification motion after it resolves the disclosure issue.


On March 27, 1989, the date set for defendant Richard Allen Fink's trial in El Paso County District Court on charges of second degree burglary 3 and third degree assault 4 stemming from allegations made by an ex-girlfriend, Fink's attorney orally moved for discovery of any written statements made by the victim or other witnesses to Colette Barkey, a paralegal employed by the district attorney's office. Counsel further stated that under People v. Thatcher, 638 P.2d 760 (Colo.1981), the defense was entitled to all witness statements made to the prosecutor, including those recorded in handwritten notes taken a week earlier by the prosecutor during an interview of the victim in preparation for trial. The prosecutor agreed to release Barkey's notes but objected to turning over his own notes, arguing that they constituted work product and thus were not subject to discovery.

The district court reviewed the prosecutor's notes in camera and edited them to allow disclosure of material it considered discoverable under People v. Thatcher while keeping confidential material it judged to be work product. The district court then ordered the prosecutor to decipher his handwriting and provide typed copies of the discoverable portions of the notes to defense counsel.

The prosecutor again objected, arguing that work product remained among the unexpurgated portions of the notes and that the act of deciphering his notes for defense counsel itself constituted work product. Furthermore, the prosecutor argued, any such attempt to separate witness statements from work product would discourage prosecutors from taking notes and have a chilling effect on their efforts to prepare for trial.

The district court then excised some additional material, but overruled the prosecutor's other objections. The district court also granted defense counsel's request that the prosecutor submit to questioning concerning the statements made to him by the victim and memorialized in his notes. The interview was conducted that afternoon.

The next day, the district court granted defense counsel's motion to endorse the prosecutor as a witness for the defense, on the ground that his testimony would be required to impeach the victim should she deny making the statements recorded in the prosecutor's notes. Finally, the district court disqualified the prosecutor and the entire district attorney's office because one of its members was endorsed as a witness in the case, and ordered that procedures be begun to appoint a special prosecutor. The district court explained that its ruling was based on Crim.P. 16(I)(a)(1) and People v. Thatcher. The district attorney then sought relief by this original proceeding.


We first address the issue of whether an original proceeding is proper to review the district court orders challenged by the district attorney. The principles governing original proceedings under C.A.R. 21 are well-settled. Relief under C.A.R. 21 is an extraordinary remedy, limited in purpose and in availability. McCall v. District Court, 783 P.2d 1223, 1225 (Colo.1989); White v. District Court, 695 P.2d 1133, 1135 (Colo.1984). This court's original jurisdiction may be invoked and a rule to show cause under C.A.R. 21 issued to test whether the trial court is proceeding without or in excess of its jurisdiction, or to review a serious abuse of discretion when an appellate remedy would not be adequate. McCall, 783 P.2d at 1225; Halliburton v. County Court, 672 P.2d 1006, 1009 (Colo.1983). Relief in the nature of prohibition permits early correction of a trial court's rulings for these purposes, but is not to be used as a substitute for an appeal. McCall, 783 P.2d at 1225. The granting of relief under C.A.R. 21 is within the discretion of this court. Id.; White, 695 P.2d at 1135.

In the present case, the prosecutor contends that the district court grossly abused its discretion in ordering disclosure of the prosecutor's notes, allowing endorsement of the prosecutor as a defense witness and disqualifying the entire district attorney's office from the case. According to the prosecutor, an appellate remedy is unavailable because, absent this court's intervention, a special prosecutor will take the case to disposition or trial, effectively mooting the issue. Denial of relief, the prosecutor asserts, incorrectly construes Crim.P. 16(I)(a)(1) to impose a blanket requirement on prosecutors to disclose statements made by witnesses during interviews conducted in preparation for trial. In addition, the Denver District Attorney as amicus curiae argues that the Crim.P. 16(I)(a)(1) disclosure provisions are inapplicable to witness statements recorded by prosecutors, and that the district court should instead have analyzed the appropriateness of disclosure under Crim.P. 16(I)(a)(2). We conclude that we should exercise our discretion to determine whether the district court correctly ordered disclosure of the prosecutor's notes, which ruling formed the basis for the orders for endorsement of the prosecutor as a witness and for disqualification of members of the district attorney's office.


The Colorado Rules of Criminal Procedure provide an accused with three potential means for obtaining disclosure from the prosecution: Crim.P. 16(I)(a)(1), Crim.P. 16(I)(a)(2), and Crim.P. 16(I)(d)(1). Coupled with the provisions of Crim.P. 16(I)(e)(1) for protecting attorney work product and for excising it from discoverable material, the rules provide an efficient roadmap for identifying the materials that must be disclosed to the defense.

A. Excision of Work Product Under Crim.P. 16(I)(e)(1)

After examining the prosecutor's notes in camera, the district court excised some parts of the material as work product not discoverable and made the remainder available to the defense. The district court correctly recognized the applicability of the work product doctrine and took the appropriate steps to enforce it.

The work product doctrine, although most frequently asserted as a bar to discovery in civil litigation, applies with equal, if not greater, force in criminal prosecutions. See U.S. v. Nobles, 422 U.S. 225, 236, 238, 95 S.Ct. 2160, 2169, 2170, 45 L.Ed.2d 141 (1975). Notes and worksheets of a prosecuting attorney or members of the prosecutor's staff ordinarily are considered nondiscoverable work product because they are prepared in anticipation of litigation. 2 W. LaFave & J. Israel, Criminal Procedure 497-98 (1984); see Norman v. People, 178 Colo. 190, 195, 496 P.2d 1029, 1031 (1972); Rapue v. People, 171 Colo. 324, 328, 466 P.2d 925, 927 (1970); Hopper v. People, 152 Colo. 405, 411, 382 P.2d 540, 543 (1963); see also Annotation, Right of Defendant in Criminal Case to Inspection of Statement of Prosecution's Witness for Purposes of Cross-Examination or Impeachment, 7 A.L.R.3d 181, at § 10(d) (1966 & Supp.1989) (citing cases permitting and others barring production of prosecutorial work product). Colorado has codified the prosecutorial work product "privilege" at Crim.P. 16(I)(e)(1), which states that "[d]isclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting attorney or members of his legal staff."

Although under Crim.P. 16(I)(e)(1), the work product of the prosecuting attorney or members of his legal staff is not discoverable, the rule does not operate to shield the entire contents of affected material. "When some parts of certain material are discoverable under the provisions of [the Colorado Rules of Criminal Procedure], and other parts are not discoverable, the nondiscoverable material may be excised and the remainder made available in accordance with the applicable provisions of these...

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