CHAPTER 3. COLORADO CRIMINAL LAW by H. Patrick Furman Clinical Professor of Law

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1 CHAPTER 3 COLORADO CRIMINAL LAW by H. Patrick Furman Clinical Professor of Law INTRODUCTION Criminal law regulates behavior that the people, through their legislators, decide cannot be tolerated. Criminal law sets forth the types of behavior deemed criminal, establishes the rules governing the apprehension, prosecution and defense of people who are suspected of committing crimes, and governs the punishment of those who are convicted of committing crimes. Unlike civil cases, which usually involve one private party suing another private party, criminal cases always involve the government. The government apprehends suspected offenders, prosecutes criminal cases, provides for the defense of those who cannot afford their own defense, and punishes those who are convicted of committing a crime. Because the government has power and far more resources than a citizen, criminal law also involves putting limits on the power of the government to pursue these cases. Crime is a serious problem in Colorado and the entire country. The Colorado Department of Public Safety keeps track of the number of crimes committed in Colorado. The two charts below are based on statistics provided by the Department of Public Safety and the Federal Bureau of Investigation. Number of Crimes in Colorado Murder Forcible Rape* 1,518 1,408 1,997 Robbery 2,982 3,605 3,445 Burglary 39,617 35,001 29,894 Motor Vehicle Theft 14,093 14,520 21,679 Total 58,348 54,743 57,189 *Beginning in 1995, the definition in this category was broadened. As you can see, the total number of crimes decreased between 1990 and 1995, then went up between 1995 and The total number of crimes in these categories is actually lower in 2002 than in Most of the change results from a significant decrease in burglaries and a significant increase in car thefts. It is important to note that these statistics do not include the numbers for assaults or drug related offenses, two very important categories, because of variations in reporting by law enforcement agencies. 11

2 These crime statistics must be considered in light of the change in the size of Colorado's population. Part of any increase in the number of crimes may simply be due to the fact that there are more people in the state. The population in Colorado increased from 3,294,394 in 1990, to 3,747,560 in 1995, to 4,512,400 in 2002 an increase of more than 1.2 million people. To measure more accurately whether crime really is increasing, we need to take into account this population increase. The following chart shows the crime rate in Colorado in 1990, 1995, and 2002 as the number of crimes of each type committed for each 100,000 citizens. Crime Rates: Crimes Per 100,000 People Murder Forcible Rape Robbery Burglary 1, Motor Vehicle Theft Total This second chart demonstrates a steady decrease in the crime rate in Colorado between 1990 and 2002 actually decreased. The only crime rate that increased was car theft. Again, it is important to note that assault and drug offenses are not included in these statistics. At the same time, the prison population in Colorado has been steadily increasing. In 1992, the average daily population in the Colorado Department of Corrections (the prison system) was 8,474; in 1995, the average was 10,564; by 2002, the average number of inmates had risen to 17, 367. This doubling of the prison population appears to be due to several factors. Remember that the crime statistics in the previous section did not include drug offenses, and the number of people sentenced for drug offenses has increased significantly in the past fifteen years to the point where drug offenders are nearly 25% of the total prison population. Secondly, the length of the average sentence imposed by judges in serious cases in Colorado has increased a great deal. Finally, although this is difficult to quantify, it appears that the parole board is more likely to make offenders serve a higher percentage of their sentences before being paroled than was the case in yeas past. Crime statistics are available through the web pages of the Colorado Department of Corrections, and the Colorado Bureau of Investigations, The United States Department of Justice and the Federal Bureau of Investigation are good sources of statistics as well. 12

3 PROBLEM 1 a. Which figures are more important - the total number of crimes or the crime rates? b. Why is Colorado's car theft rate increasing when the other listed crime rates are decreasing? c. Why is the number of prison inmates growing much faster than the crime rate? d. Do you expect the number of crimes and the crime rate to rise or fall in the next few years? Why? FEDERAL AND STATE PROSECUTION OF CRIME Federalism is the principle that governmental power is divided between the federal government and the various state and local governments. In the area of criminal law, the principle of federalism limits the types of crimes the federal government can prosecute. Generally, the federal government can prosecute only those crimes which involve federal officials, e.g., trying to bribe a federal judge; occur on federal property, e.g., assaulting someone in a national forest; cross state lines, e.g., interstate transportation of stolen goods; or affect the national interest, e.g., immigration laws. State governments retain responsibility for prosecuting most other crimes. Many more prosecutions occur in state courts than in federal courts. At the same time, the principle of federalism and the supremacy of the federal constitution also limit what state governments can do. Most important, state governments cannot violate the federal constitution. The rights that are guaranteed in the U. S. Constitution are a "floor." No state can go below that floor by taking away those rights. However, a state may raise that floor by giving its citizens more rights and more protection than does the U. S. Constitution. This principle will be discussed more in the section on search and seizure. PROBLEM 2 If a person steals a car in Denver and drives it to Kansas City, has he committed a crime in Colorado? In Kansas? Has he also committed a federal crime? Who should prosecute this car thief? Can both states and the federal government prosecute him separately? SOURCES OF LAW The legislative branch of government has the responsibility of writing the laws that determine what conduct is illegal. Once signed by the Governor, or passed into law over the Governor s veto, these laws are set out in the Colorado Revised Statutes ("C.R.S."). The judicial branch interprets the laws passed by the legislature. Whenever there is a question about the precise meaning of a criminal statute, a judge makes the determination. If one of the parties believes that the judge's interpretation is incorrect, that party can appeal the decision to a higher court. There are five basic levels of court in Colorado: (1) municipal courts, which address violations of city laws; (2) county courts, which hear most traffic and misdemeanor cases; (3) district courts, which hear felony cases as well as appeals from county 13

4 court; (4) the Colorado Court of Appeals, which hears appeals from district court; and (5) the Colorado Supreme Court, which is the highest state court and hears certain appeals from the lower courts. See Chapter 2 for additional discussion of the types of courts in Colorado. Court decisions interpreting the law, as well as decisions establishing the correct procedures and interpreting court rules for conducting trials and pretrial matters are called "case law." Case law is just as important a source of criminal law and procedure as is the legislation itself. The executive branch of the government enforces the laws passed by the state legislature and interpreted by the judicial branch of the government, by prosecuting people who are alleged to have committed crimes. PROBLEM 3 What, if anything, can the state legislature do if the Colorado Supreme Court declares a law unconstitutional? What, if anything, can the citizens of Colorado do? PROSECUTION OF CRIMES Almost all state crimes are prosecuted by district attorneys. The district attorney in each of the twenty-two judicial districts in Colorado is elected by the voters in that district. The district attorney then hires deputies to prosecute crimes. A very small number of crimes are prosecuted by the Attorney General in Colorado. The Attorney General is elected in a statewide vote and has a number of different responsibilities. Representing state agencies and arguing appeals in criminal cases are just two of the duties of the Attorney General. Everyone who is charged with a crime that may result in a jail or prison sentence is entitled to the assistance of a lawyer. People who cannot afford to hire their own lawyer are assigned lawyers from the Office of the Public Defender or, if the public defender cannot represent the defendant, a lawyer from the Alternate Defense Counsel. Public defenders specialize in criminal law and handle well over half of all serious criminal cases in the state. People who can afford it hire their own lawyer to represent them. The right to a lawyer is guaranteed by the Sixth Amendment to the U.S. Constitution and by Article II, 16, of the Colorado Constitution. Some crimes in Colorado are prosecuted by municipalities. Municipalities have a limited power to prosecute certain types of crimes committed within their city limits. These offenses are set forth in the municipal code of the city and often are referred to as municipal ordinance violations. PROBLEM 4 Is it a good idea or a bad idea to have elected district attorneys? What are the advantages of periodic elections for district attorney and what are the disadvantages? 14

5 VICTIMS OF CRIME One of the most important changes in the way criminal cases are handled in Colorado over the past twenty years is the way in which crime victims are treated. Police, prosecutors, and judges today are more sensitive to the concerns and problems of crime victims. According to the Bureau of Justice Statistics, in 1974 only 35 percent of prosecutors routinely told crime victims the eventual outcome of the case. By 1990, that figure had jumped to 93 percent. In 1992, the citizens of Colorado amended the Colorado Constitution by adding section 16a to Article II. This section establishes certain basic rights for victims of crimes. The state legislature passed a series of laws to implement this constitutional amendment. These laws are entitled "Crime Victims Compensation and Victim and Witness Rights" and are found in Article 4.1 of Title 24 of the Colorado Revised Statutes. Most police departments and prosecutors' offices have specially trained people to comfort and assist people who have been the victims of crimes. Prosecutors are required to seek input from crime victims before they decide how to prosecute a case. Judges are required to order that a person convicted of a crime pay for the damage he or she caused. This is known as restitution. Another important change in the treatment of crime victims has come in cases involving sexual assault. In the past, it was common for a woman who accused someone of rape to be treated with disbelief by police and prosecutors and to be treated with disrespect by the court. A woman's sexual history often was brought out in court, even when that history had nothing to do with the case. The sexual history of a victim of sexual assault now is protected by the "rape shield law" found at C.R.S The criminal justice system is more aware of the sensitive and difficult nature of such cases and continued efforts are being made to that end. The Colorado Supreme Court has appointed a Gender and Justice Committee and a Multi-Cultural Commission as a part of the judicial effort to provide equal access to justice. Rights of accused persons as well as victims are entitled to protection. PROBLEM 5 a. Should the victim of a crime have the right to speak to the court about the appropriate sentence in a case? Should the victim have the right to require that a particular sentence be imposed? b. Assume you are prosecuting an assault case where a man is alleged to have beaten his wife. The wife told the police that he did it and the police took photographs of her injuries. Now, however, the wife has come to your office and told you that she wants to get back together with her husband and does not want to prosecute the case. What should you do? What if she tells you she does not want to prosecute because she is scared of her husband? 15

6 TYPES OF CRIMES/OFFENSES Whether a crime is a felony, a misdemeanor, or a petty offense in Colorado is decided by the legislature. Generally, felonies are the more serious crimes. Crimes that the legislature has designated as felonies are punishable by sentences to prison in the Colorado Department of Corrections ("D.O.C."). Crimes that the legislature has designated as misdemeanors or petty offenses are punishable by a sentence to the county jail where the crime was committed or by a fine. Almost all traffic offenses are punishable by a sentence to the county jail. This does not mean that everyone convicted of a felony goes to prison; in fact, many people convicted of felonies are sentenced to probation with the condition that if a person breaks a condition of probation the court may send him/her to jail. Others are sentenced to community corrections facilities that have been established around the state to house persons who need more supervision than can be offered through probation, but who do not need to be locked up in a secure D.O.C. facility. The judge can sentence them to prison if the judge decides that incarceration is the appropriate sentence. Similarly, not everyone who is convicted of a misdemeanor or a petty offense goes to jail; many people get probation or a fine. If the judge does decide to lock up the person, the person will be locked up in the county jail. There are different classes of felonies, misdemeanors and petty offenses. Felonies in Colorado are divided into six classes, misdemeanors are divided into three classes, and petty offenses are divided into two classes. Traffic offenses also are divided into several classes. Whether a particular crime is designated a felony or a misdemeanor depends on several factors. One factor is the amount of economic or physical harm the crime caused. For example, stealing $50 worth of merchandise from a store is a misdemeanor, but stealing $500 worth of merchandise from the same store is a felony. Causing bodily injury to someone generally is a misdemeanor, but causing "serious" bodily injury to someone generally is a felony. Another factor in determining whether a crime is a felony or a misdemeanor is the type of person victimized by the crime. Stealing $50 from a store is a misdemeanor, but stealing $50 from a disabled or elderly person is a felony. Sexually assaulting an adult is a serious felony, but sexually assaulting a child is an even more serious felony. A third factor is the criminal history, if any, of the person who committed the crime. People who repeatedly drive in violation of the law may be declared "habitual traffic offenders" and may have felony charges filed against them if they continue to drive illegally. People who have been convicted of certain types of crimes are not allowed to carry weapons and may be prosecuted for a felony crime if they do. Petty offenses are those offenses that the legislature has decided are less serious than misdemeanors. Examples of petty offenses in Colorado include loitering, certain types of disorderly conduct and gambling. While some petty offenses can be punished by as much as six months in jail, the usual punishment in the event of a conviction is a fine. The decision whether a particular crime should be a felony, a misdemeanor or a petty 16

7 offense is decided by the legislature. One of the most important functions of the legislature is to decide what conduct should be illegal and how serious the punishment for that conduct should be. The legislature considers protection of the community and the resources available to prosecute crimes in making its determination. PROBLEM 6 a. The Colorado legislature has decided that vehicular homicide, that is, killing someone in an automobile accident through reckless driving, should be punishable as a Class 4 felony. The legislature also has decided that theft of goods worth more than $500 but less than $15,000 is also a Class 4 felony. Does it make sense that these two crimes are punishable by the same sentence? b. Possession of not more than one ounce of marijuana is a petty offense. Possession of more than one ounce, but not more than eight ounces, is a misdemeanor. Possession of more than eight ounces of marijuana is a felony. Is this punishment scheme logical? Would you make marijuana possession a more serious offense? Less serious? GENERAL CRIMINAL PROCEDURE Criminal procedure governs the way we prosecute criminal cases. Statutes, rules passed by the court, and decisions interpreting those statutes and rules make up the bulk of criminal procedure. This section contains an overview of criminal procedure in Colorado. A person may be charged with a crime in a variety of ways. A police officer that believes someone is speeding will charge that person with speeding by issuing a ticket. The ticket is formally known as a summons and complaint. That ticket orders the person to come to court on a specified date and answer the charge. The police may issue a summons and complaint for any misdemeanor or traffic charge. If the police officer is worried that the person might not come to court, or if the offense is a more serious misdemeanor, the officer may choose to arrest the person. A person arrested in this fashion must either post bail or stay in jail until the case is concluded. The first appearance in misdemeanor and traffic cases is called an advisement. At this hearing, the person is advised of his rights in connection with the charge. Usually, at this same hearing, a person is asked to enter a plea to the charge. Entering a plea is called "arraignment." If the person chooses to plead guilty, the next step is to sentence the person. At sentencing, the judge considers the type of crime the person has committed, the background of the person (particularly any prior crimes of the person), the comments of the defense lawyer, the prosecutor and the victim, and then decides what sentence, within the sentencing range prescribed by statute, is appropriate for the particular crime and defendant. A person who pleads not guilty in a misdemeanor or traffic case is normally scheduled to appear for a pretrial conference. At the pretrial conference, the prosecutor and the defense attorney (or the defendant himself or herself if no defense lawyer is involved) negotiate with 17

8 each other to see if they can settle the case. This process is known as plea-bargaining. If a plea bargain is reached, the proposed disposition is presented to the judge for approval and sentencing. If plea negotiation is unsuccessful, the case is set for a trial. The following section discusses plea-bargaining in more detail. The procedure in felony cases is somewhat different. The prosecutor is responsible for charging people with felony offenses. The police bring the results of their investigation to the prosecutor, who then decides where and what charges should be filed. These charges are contained in a document called "Information." If the suspect is not already under arrest, the prosecutor may ask a judge to issue an arrest warrant for the person, or may choose to serve a felony summons and complaint on the person, ordering the person to appear in court. Occasionally a prosecutor may choose to present the results of the police investigation to a "grand jury." A grand jury is a group of randomly selected citizens who listen to evidence and may order witnesses to come before them and present further evidence; they then decide whether charges should be filed. If a grand jury decides to file charges, it issues an indictment. Grand juries are not used very often in Colorado, although other states and the federal government regularly use grand juries. When felony charges are being filed, the defendant appears before a judge for advisement and is informed of the charges. The defendant in certain serious felony cases has the right to have a preliminary hearing, where the prosecutor must present enough evidence to convince the judge that there is "probable cause" to believe that the defendant committed the crime. "Probable cause" exists if a reasonably intelligent and prudent man would believe that the accused person may have committed the crime charged. If the judge is not convinced, the case is dismissed. If the judge believes that probable cause has been established, the case is set for arraignment. At arraignment, the defendant enters a plea. A guilty plea results in the case proceeding to sentencing; a not guilty plea results in the case being set for trial. Plea negotiations between the prosecutors and the defense attorney may occur at any of these stages. Before trial, the attorneys may file motions relating to the evidence in the case, or the procedures to be used at the trial. The trial may be heard by a jury, or by the judge sitting as a jury. Any person charged with a serious offense has the right to a jury, At trial, the prosecutor presents evidence to the jury by calling witnesses to the stand and asking them questions. This process is called direct examination. The defendant gets an opportunity to question these witnesses in a process called cross-examination. Evidence also may be presented to the jury through photographs, charts and test results. When the prosecutor finishes presenting evidence, the defendant has the opportunity to present evidence also. The defendant does not have to present evidence because the defendant is presumed to be innocent and the burden of convincing the jury that he is guilty rests entirely with the prosecutor. These two principles, the presumption of innocence and the burden or proof, govern all criminal trials in this country and are fundamental principles of criminal law. 18

9 The government must overcome the presumption of innocence by proving the elements of the criminal charge beyond a reasonable doubt to the satisfaction of every trial juror. In Colorado law, a reasonable doubt is defined as "a doubt that would cause reasonable people to hesitate to act in matters of importance to themselves." The "beyond a reasonable doubt" standard is the highest burden of proof in the law. In civil cases, the burden of proof is typically a "preponderance of the evidence." Preponderance of the evidence simply means more likely than not. After all of the evidence is presented, the trial judge instructs the jurors on the law of the case. The lawyers make final arguments to the jury, and the jury then retires to deliberate. When the jury reaches a verdict, it informs the court and the verdict is then presented in open court. If the verdict is not guilty, the case is over. If the verdict is guilty, the case proceeds to sentencing and, sometimes, to an appeal. PROBLEM 7 a. Our system requires that the prosecutor prove the charge to the satisfaction of each juror beyond a reasonable doubt. Does this seem fair? Is your definition of "beyond a reasonable doubt" different from the legal definition? Would you prefer to lower the standard in criminal cases to the preponderance of the evidence standard used in civil cases? b. Our system also requires that the jury be unanimous as to their verdict. Some states require that only nine of the twelve jurors agree on the verdict. Which system makes more sense? This unanimity requirement may result in some guilty people going free. It also may keep some innocent people from going to jail. Which is more important to you? BAIL Except in limited circumstances involving very serious crimes, everyone who is arrested for a crime has the right to bail. Both the Eighth Amendment to the U.S. Constitution and Article 11, 19 of the Colorado Constitution guarantee persons suspected of crimes the right to bail, which is normally set by the judge at the person's first appearance in court. Colorado statutes set forth some guidelines the judges should follow when deciding on the question of bail. A person makes bail by posting a bond in the amount set by the court. If a person has strong ties to the community and the crime is not too serious, a judge often will allow the person to make bail by posting a "personal recognizance" bond. A personal recognizance bond is simply a written promise to appear; it does not require the person to post any money with the court. Sometimes, the judge will require that another person join in this promise: this is called a "cosigned personal recognizance bond." If the judge feels that the person does not have adequate ties to ensure that the person will return to court when ordered, or is concerned that the person will not stay out of trouble in the interim, the court will require a secured bond. A secured bond must be posted by depositing money with the court, by hiring a bondsman to post the money with the court, or by pledging Colorado real estate as collateral on the bond. 19

10 Article II, 19 of the Colorado Constitution allows a judge to refuse bail in capital cases "when the proof is evident or the presumption great." Capital cases are those cases that are punishable by execution. "The proof is evident or the presumption great" refers to those cases in which the evidence against the defendant is very strong and the judge believes that the likelihood of conviction is very high. The "proof evident/presumption great" standard requires something more than probable cause but less evidence than is required for conviction. In 1982, the citizens of Colorado amended Article II, 19 of the state Constitution to expand the types of cases in which a judge can deny the defendant the right to bail. This amendment allows a judge to deny bail to persons who are charged with a crime of violence and are on probation, parole or bail for a previous crime of violence, or who previously have been convicted of two felonies, one of which was a crime of violence. The judge must hold a hearing before denying bail, and also must find that the "proof is evident or the presumption great" and that the public would be placed in significant peril if the person were released on bond. The procedure established by this amendment is known as "preventive detention." Supporters of preventive detention believe that it helps keep dangerous criminals off the streets. Opponents argue that preventive detention is inconsistent with the fundamental notion that a person is presumed to be innocent, and fear that the government can misuse preventive detention to lock up people on inappropriate grounds. PROBLEM 8 Our system presumes that people charged with a crime are innocent. Is it fair to make these same people post bail before getting out of jail? Is it fair that the net result of the bail system is that rich people are far more likely to get out of jail than poor people? ALCOHOL AND DRUG ABUSE Alcohol is the most widely abused substance in Colorado and around the nation. While other drugs, both legal and illegal, are abused and contribute to crime, alcohol remains the single biggest problem drug. The most common crimes associated with the abuse of alcohol are driving under the influence ( D.U.I. ) and driving while ability impaired ("D.W.A.I. ). People who drive after drinking too much are a serious problem in Colorado. Citizens are much more aware of the danger of drunk driving than they used to be. Groups like Mothers Against Drunk Driving ("MADD ) and Students Against Drunk Driving ("SADD") have lobbied the legislature to make Colorado's drunk driving laws tougher. Their lobbying efforts are proving to be effective. The courts interpreting these laws also are very concerned about the danger of drunkdriving. Colorado courts have issued a number of decisions making it easier to catch and convict people of D.U.I. For instance, the Colorado Supreme Court has held that it is constitutional for the police to stop cars at roadblocks to see if the drivers were under the influence. The court held that the police could stop cars even if they had no particular reason to believe the driver was doing anything wrong before the car was stopped. The Colorado Supreme Court has also held that it was not a violation of the Fifth Amendment "right to remain silent" for prosecutors to introduce evidence that a driver, under investigation for D.U.I., refused to take a roadside 20

11 sobriety test. Similarly, the court held that it was not a violation of the Fifth Amendment to introduce evidence that a driver refused to take a chemical test to determine the amount of alcohol in his system. The legislature and Colorado courts have also expanded the meaning of "driving" as part of the effort to control the problem of drunk driving, In 1998, the Colorado Supreme Court upheld the conviction of a person who was asleep in the front seat of his truck on the side of the road. The key was in the ignition but the engine was not running. The driver failed roadside sobriety tests. The court held that the legislature intended drunk "driving" to include being in physical control of the vehicle and that the defendant was driving within the meaning of the statute. Many people think of driving as a right, even a constitutional right; it isn't. Rather, it is a privilege granted by the state, a privilege that the state can control and limit. Two obvious limits are age and testing requirements, i.e., making you wait until you are sixteen and pass both a written and driving test before you can get a license. It is partly because driving is a privilege and not a right that the state, through the Division of Motor Vehicles ("D.M.V. ), can take away your license for a wide variety of reasons. A high percentage of other crimes also are related to drug and alcohol abuse. Many otherwise law-abiding people get into trouble when they are under the influence of drugs or alcohol. In 1985, it was estimated that approximately 75 percent of the prison population in Colorado had a drug and/or alcohol problem. Approximately 64 percent of these prisoners began using drugs before age 16. There is no more certain route to jail or prison than to develop an alcohol or drug problem. People think they can handle drugs or alcohol and that it will not be a problem for them. The statistics overwhelmingly prove that these people are mistaken and are a danger to themselves and others. PROBLEM 9 a. Do you think people who drive while under the influence of alcohol or drugs should be locked up or treated? What if they refuse to go to treatment? What if they can't afford treatment? b. Do you believe that drug and alcohol treatment programs really work? Why? PLEA BARGAINING Most criminal cases do not go to trial. The overwhelming majority of cases settle through a process known as plea-bargaining or plea negotiation. The Colorado legislature has explicitly approved plea-bargaining and the criminal justice system could not function efficiently without plea-bargaining. Plea-bargaining is conducted by the prosecutor and the defense lawyer or, if the defendant does not have a lawyer, by the prosecutor and the defendant. The two sides meet, discuss the strengths and weaknesses of the case, the history of the defendant, and try to reach a 21

12 settlement that both sides feel is fair. If the parties reach agreement on a plea bargain, the proposed settlement is presented to the judge. The judge always retains the power to accept or reject any plea agreement, although most of the time judges approve the agreement worked out by the parties. Plea agreements usually involve either a "charging concession" or a "sentencing concession" or both A charging concession is an agreement by the prosecutor to dismiss or reduce pending charges in exchange for a guilty plea from the defendant. A sentencing concession is an agreement by the prosecutor to recommend a certain type of sentence to the judge in exchange for a guilty plea from the defendant. Plea-bargaining is sometimes controversial. People who are in favor of plea bargaining point to its efficiency and argue that elimination of plea-bargaining would result in a huge increase in the number of trials. Our criminal justice system simply cannot handle such an increase because there aren't enough judges, prosecutors, public defenders, court reporters, or courtrooms. Those who are opposed to plea-bargaining argue that letting people plead guilty to reduced charges, or to get reduced sentences, diminishes the seriousness of the illegal conduct. PROBLEM 10 a. What do you think would happen if the state legislature did away with pleabargaining? Would everyone charged with a crime demand a trial in the belief that losing at trial couldn't be any worse than simply pleading guilty to the charge. b. Do you believe that too many people are "getting off" through the plea bargain system? If too many people are getting off, are you willing to pay higher taxes to pay more judges and lawyers and to build more prisons to incarcerate more people? ARREST The U.S. and the Colorado Constitutions bar "unreasonable" arrests. In addition, C.R.S et seq. sets forth certain rules regarding arrests. There are two types of arrests: (1) arrests with warrants; and (2) warrantless arrests. An arrest warrant is issued by a judge or magistrate after enough evidence has been presented to establish probable cause to believe the person to be arrested committed a crime. After obtaining an arrest warrant from the judge, police officers execute the warrant by finding and arresting the person named in the warrant. A warrantless arrest occurs when a police officer (or, in some very limited situations, a civilian) has seen the suspect commit a crime or has probable cause to believe the suspect has committed a crime and needs to act upon that information without waiting for a judge to issue a warrant. It always is preferable for a police officer to obtain an arrest warrant, but there are many situations when getting a warrant is not practicable and the officer needs to make an on-the-spot warrantless arrest. A person who believes that his arrest was improper, either because the arrest warrant was 22

13 defective or because the officer did not have probable cause to arrest him, may challenge the validity of his arrest. This challenge is made by filing a motion with the court and holding a hearing on the motion. An arrest made with a warrant is presumed to be reasonable, and the defendant must convince the judge that it was unreasonable. An arrest made without a warrant is presumed to be unreasonable and the prosecutor must convince the judge that it was reasonable. If the judge agrees that the arrest was improper, evidence seized during or after that arrest will be suppressed and cannot be used against the individual at trial. This is the exclusionary rule and is discussed in greater detail later in this chapter. PROBLEM 11 a. Why do the U.S. and Colorado Constitutions protect us against "unreasonable" arrests? Is it better to have a judge issue an arrest warrant or simply to let police officers arrest anyone they choose? b. Can you come up with a definition of "probable cause"? Identify one situation in which probable cause for arrest exists; then identify a second situation in which probable cause does not exist. SEARCH AND SEIZURE The U.S. and Colorado Constitutions protect citizens against certain other types of government intrusion in their lives. The first ten Amendments to the U.S. Constitution, known as the Bill of Rights, are the most well known of these protections. Several of the rights protected by the Bill of Rights apply specifically to criminal cases. The Fourth Amendment protects citizens against unreasonable searches and seizures by police. The Fifth Amendment protects citizens against being forced to incriminate themselves in criminal cases ("self-incrimination") and against being prosecuted twice for the same offense ("double jeopardy"). The Sixth Amendment provides that a person charged with a crime has the right to a speedy and public trial, the right to confront witnesses against him, and the right to an attorney. The Eighth Amendment bars "cruel and unusual" punishment. The Colorado Constitution contains similar protections. Article II, 7, contains a guarantee against unreasonable searches and seizures similar to the guarantee in the Fourth Amendment. Article II, 16 confers rights to a speedy trial, to confront witnesses and to have an attorney, which are similar to the rights contained in the Sixth Amendment. Article II, 18 contains guarantees against self-incrimination and double jeopardy like those in the Fifth Amendment. Finally, Article II, 20 bars cruel and unusual punishments, as does the Eighth Amendment. The U.S. Supreme Court has held that the rights guaranteed by these particular Amendments to the U.S. Constitution apply to state governments as well as to the federal government. No state government can take away these rights and give its citizens less protection. However, a state government can add to these rights by giving its citizens more protection. This is another aspect of the principle of federalism discussed earlier. 23

14 One example of this principle here in Colorado relates to the use of dogs trained to detect narcotics. The U. S. Supreme Court has held that using a trained dog to sniff luggage for the presence of drugs was not a "search" and, therefore, was not governed by the Fourth Amendment of the U.S. Constitution. However, the Colorado Supreme Court later held that using a trained dog to sniff a safe for the presence of drugs was similar to a "search" and is subject to Article II, 7 of the Colorado Constitution, which states that the people shall be free from unreasonable searches. The primary issue in these search and seizure cases is whether the citizen has a reasonable expectation of privacy that the government violated. Whether the citizen's expectation of privacy is "reasonable" depends on all of the surrounding circumstances. In an interesting 1997 case, the Colorado Supreme Court held that a man who was living in a tent on unimproved and apparently unused land had a reasonable expectation of privacy in the tent and held that the police acted improperly in searching the tent and his backpack, which was inside the tent, without a warrant. A person who believes that the government has conducted an unconstitutional search and/or seizure follows the same general procedure outlined above in connection with claims of an illegal arrest. The person files a motion with the court and the court conducts a hearing. If evidence was seized pursuant to a search warrant, the defendant must convince the court that the search was nonetheless improper. If the search was conducted without a warrant, the government must persuade the court that there is a good reason that outweighs the constitutional preference that the police obtain search warrants. If the court finds that the search and/or seizure violates the constitution, any evidence seized during that search or seizure will be barred, under the exclusionary rule, in the prosecution of the defendant. The exclusionary rule is discussed in greater detail below. PROBLEM 12 a. Does it make sense to you that state rules of procedure for criminal cases are different than the federal rules? What are the advantages and disadvantages of: this system? b. Do you agree with the Colorado Supreme Court's ruling that using a trained dog to sniff a safe for the presence of drugs was similar to a "search" and subject to Article II, 7 of the Colorado Constitution, which provides that the people shall be free from unreasonable searches? Why or why not? INTERROGATION In ancient times, the interrogation of suspected criminals often proceeded by means of torture. The authorities who practiced torture believed that they could force people to tell the truth. While they may have been successful on occasion, many people confessed to crimes they did not commit simply in order to stop the torture. Modern America condemns torture and other forms of physical abuse as a method of dealing with suspected criminals. There are many forms of coercion short of physical abuse that may violate a person's rights when the person is being questioned by authorities. An individual may feel 24

15 psychologically or emotionally compelled to answer police questions simply because of the power of the police or the way in which the interrogation is conducted. To reduce this danger, the U.S. Supreme Court held that before police officers can question a suspect in custody they must warn the suspect: (1) of the right to remain silent; (2) that anything the suspect says can be used as evidence in court; and (3) the fact that the suspect has the right to an attorney present during questioning. This is known as the Miranda warning. The Miranda warning does not have to be given every time the police question a person. For example, the police do not need to warn a person who is not "in custody." The Colorado Supreme Court has held that a motorist who was stopped for a traffic violation and investigated for being under the influence was not "in custody" for the purposes of the Miranda rule. The Miranda warning does not have to be given when public safety is involved. The U.S. Supreme Court has established a "public safety exception" to the requirement that a defendant be given a Miranda warning. The case involved a situation where the police received a report of a man with a pistol in a store. They went in, saw him, chased him, lost sight of him for a moment, caught him, cuffed him and found that he was wearing an empty pistol holster. A policeman asked where the gun was and the suspect told him. The court held that the public safety interest in quickly finding the gun outweighed the need to give a warning of rights. There are many other exceptions to the rule that Miranda warnings must be given. Prosecutors, defense lawyers, and judges often are engaged in trying to determine whether the rule should apply to a particular set of facts. Since every case is somehow unique, this process can be difficult. PROBLEM 13 a. How far would you let the police go when they are trying to get a suspect to make a statement? Should the police be allowed to trick the suspect? Lie to the suspect? Threaten the suspect? b. How can you tell when someone is "in custody" so that Miranda warnings must be given? THE EXCLUSIONARY RULE The protections contained in the U.S. and Colorado Constitutions that are discussed in the preceding sections are enforced by the courts through the "exclusionary rule." Under this rule, evidence or statements obtained by the police in violation of a constitutional right are excluded in the trial. The U.S. and Colorado Constitutions do not provide specifically for this exclusion of evidence; it is a rule created by the courts. Supporters of the rule offer several justifications. They believe that excluding illegally seized evidence helps deter misconduct by the police. The theory is that if the police know that illegally obtained evidence cannot be used against a defendant, they will stop seizing evidence illegally. The second justification for the rule is that it helps maintain judicial integrity by preventing the courts from becoming participants in actions that are in violation of the constitution. A third purpose is to assure citizens that the government will not be allowed to 25

16 profit from its own illegal behavior. The exclusionary rule may be used when the police arrest someone without a warrant or probable cause to believe the person committed a crime. It may be used if the police interrogate a prisoner without first advising him of his rights. Whenever it is used, material evidence is excluded from the case. For this reason, the exclusionary rule is controversial. Judge Cardozo of the New York Court of Appeals, who was later on the U.S. Supreme Court, described the effect of the exclusionary rule as follows: "The criminal is to go free because the constable has blundered." Many people are concerned that under the exclusionary rule, reliable and relevant evidence is excluded from trial. They argue that there must be a better way to prevent the police from engaging in misconduct. If there is no police misconduct, there is no need to exclude evidence. For instance, in a case reviewed by both the Colorado and United States Supreme Courts the defendant approached a police officer at Stapleton Airport (this was before DIA) and began confessing to an old unsolved murder before the officer said anything. The U.S. Supreme Court held that the police officer had not done anything to cause the confession and that the confession was voluntary. While the defendant was suffering from some mental health problems that contributed to his confession, the police were in no way responsible for these problems either. Since the police had done nothing wrong, the confession was admissible. The Colorado Supreme Court has refused to suppress the evidence of marijuana cultivation in a person's house because the police officer had obtained a warrant to search from the judge, even though the judge later found that probable cause did not exist for the search. PROBLEM 14 The exclusionary rule is designed to deter police misconduct. What other ways could society deter such misconduct? Does it make sense to throw out evidence against a defendant simply because the police officer made a mistake? SENTENCING Sentencing people who have been convicted of crimes is a very important part of the entire criminal justice system. Since most defendants plea bargain the charges against them and end up pleading guilty to some charge, most defendants get sentenced. As you can imagine, these people are extremely concerned with the type of sentence they receive. Many judges feel that sentencing is the most difficult part of their job. Judges are required to consider a wide variety of factors when deciding on the appropriate sentence. These factors include the type of offense, the need to protect society, the background and history of the defendant, the need to deter others from committing crimes, and the need or desire for rehabilitation of the defendant. After considering these factors, the sentencing judge then must select from the available sentencing options. In many minor cases, particularly minor traffic cases, a defendant is simply 26

17 fined. In more serious cases, the judge often must decide between probation and incarceration. If the judge decides probation is the appropriate sentence, the judge must decide what conditions to put on probation. If the judge decides that incarceration is appropriate, then the judge must decide on the length of the sentence and where the sentence should be served. As discussed earlier, felonies, misdemeanors, petty offenses and traffic offenses are divided into various classes of sentencing. Felonies are divided into six classes, most of which are subdivided into extraordinary risk (ER) crimes. Misdemeanors are divided into three classes, with one ER subdivision. The following charts give the possible sentences that can be imposed on a person convicted of the various classes of felony and misdemeanor offenses. See C.R.S and FELONY SENTENCES IN COLORADO Presumptive Range Exceptional Range Class Minimum Maximum Minimum Maximum Parole Req d 1 Life Death Life Death 2 8 Years 24 Years 4 Years 48 Years 5 Years $5,000 $1,000,000 3ER 4 Years 16 Years 2 Years 32 years 5 Years $3,000 $750, Years 12 Years 2 Years 24 years 5 Years $3,000 $750,000 4ER 2 Years 8 Years 1 Year 16 years 3 Years $2,000 $500, Years 6 Years 1 Year 12 years 3 Years $2,000 $500,000 5ER 1 Year 4 Years 6 Months 8 Years 2 Years $1,000 $100, Year 3 Years 6 Months 6 Years 2 Years $1,000 $100,000 6ER 1 Year 2 Years 6 Months 4 Years 1 Year $1,000 $100, Year 18 Months 6 Months 3 Years 1 Year $1,000 $100,000 Remember that a judge may place a person on probation instead of sentencing the person to prison, unless that person is not eligible for probation due to the nature of the conviction or the person's record. If the judge decides to sentence the person to prison, the judge is required to give a sentence in the "presumptive range" unless there are exceptional circumstances justifying a longer or shorter sentence. Exceptional circumstances allow the judge to sentence the defendant within the "exceptional range." For example, a person who has been convicted of a Class 4 felony faces a presumptive sentence of between two and eight years; but if that person convinces the judge that exceptional mitigating factors exist, the judge can shorten the sentence to as little as one year. If the prosecutor convinces the judge that exceptional aggravating factors exist, the 27

18 judge can lengthen the sentence to as much as sixteen years. In addition to a sentence to prison, the sentencing judge can impose a fine, or can impose both a fine and imprisonment. The following chart shows the sentence that can be imposed on people convicted of misdemeanor and traffic offenses in Colorado. Remember that more people are placed on probation rather than sentenced to jail. Just as with felony sentences, a judge may impose both a jail sentence and a fine. MISDEMEANOR SENTENCES IN COLORADO Class Minimum Maximum 1 ER 6 Months 24 Months $500 $5, Months 18 Months $500 $5, Months 12 Months $250 $1,000 3 No minimum 6 Months $50 $750 Driving under the influence is generally punishable by up to one year in jail, and driving while ability impaired is generally punishable by up to six months. The penalties increase depending upon such factors as the defendant s prior record of alcohol-related offenses on the amount of alcohol in the defendant s system. Other serious traffic offenses, those designated Class 1 are punishable by up to a year in jail, while Class 2 traffic offenses are punishable by up to 90 days in jail. Minor traffic offenses, such as speeding, are generally punishable only by a fine. The prisons in Colorado are full. Most county jails are also full. It is expensive to house people in jail or prison, and Colorado is always exploring alternatives to traditional incarceration. The "community corrections" program is one of these alternatives. Community corrections facilities attempt to provide supervision of offenders that is more structured and extensive that probation, but less expensive than prison. Judges may sentence an offender directly to community correction when they believe that the offender needs more supervision than the probation department can offer, but do not believe that the offender needs to be locked up in prison. The Department of Corrections can place an offender in community corrections when the offender is nearing the end of his or her sentence and needs to get adjusted to life outside of prison. Community corrections is much less expensive that prison because the facility is usually a remodeled house or apartment building rather than an expensive prison, because fewer staff people are required to supervise the offenders, and because the offenders pay part of the cost of the program. On the other hand, community corrections facilities are much less secure than prison: the typical person in community corrections leaves the facility each day to go to work 28

19 and can "escape" by simply walking away. People who are serving sentences in community corrections have access to more treatment programs than persons in prison. A very high percentage of the people who are convicted of crimes have a drug or alcohol problem. Jails and prisons often simply do not have the money needed to run good drug and alcohol abuse rehabilitation programs. There are many more such programs in the community itself, and these programs may be available to persons in a community corrections program. Another alternative to traditional incarceration is home detention. Under a home detention program, an offender is allowed to serve the sentence at home instead of jail. Compliance with the sentence is monitored by means of electronic ankle bracelets that automatically notify the authorities if the offender goes too far from the Home telephone. The bracelet can be programmed to allow the defendant to go to work, or to sound an alarm if he goes to a restricted area, etc. PROBLEM 15 a. You are a state legislator considering legislation to expand the use of community corrections. This legislation would allow the state to supervise many more people, but the supervision would not be as strict as that in prison. A woman in your legislative district comes to your office and asks you to vote against the bill because her daughter was assaulted last year by a man who had walked away from a community correction facility. What do you tell her? How do you vote? b. You are a judge considering what sentence to give a driver who has been convicted of driving under the influence. Would you send the driver to jail? For how long? What if the driver had been convicted of the same offense twice before? What if the driver was the sole supporter of his wife and three children? c. You are a judge considering how to sentence an eighteen-year-old high school student convicted of possessing one gram of cocaine. Should this be a felony or a misdemeanor? In Colorado, it is a Class 4 felony. What are the possible penalties for that level of offense? Would you send her to prison? Would it make a difference to you if she possessed one ounce of cocaine? One kilo? What about the person who sold the cocaine to her? What about the person who imported the cocaine from another country? THE DEATH PENALTY Colorado law provides that certain people convicted of specific serious felonies may be executed. (See C.R.S et seq.) Execution in Colorado is carried out at the Colorado State Penitentiary in Canon City by lethal injection. Colorado carried out the execution of Gary Lee Davis in October In Colorado, only people convicted of a Class 1 felony (first-degree murder, certain types of child abuse resulting in death, and certain types of first-degree kidnapping) are eligible to receive the death penalty. The district attorney decides whether to seek the death penalty based 29

20 on various factors such as whether the murder was especially heinous or if the defendant has a particularly bad record. If the jury convicts the defendant of a Class 1 felony, the jury is then asked to determine whether the death penalty is appropriate. The jury makes this decision after hearing additional evidence from the prosecutor and the defense concerning the appropriate sentence. At this hearing, the prosecutors must present "aggravating factors" that they believe justify a sentence of death. The types of aggravating factors that can be presented are limited by statute. The defense lawyers then have an opportunity to present "mitigating factors" they believe justify a sentence of life in prison. After the lawyers argue the case, the jury then goes through four steps to make the decision whether the sentence should be execution or life in prison. The first step is to decide whether the prosecution has proved the existence of any aggravating factors. If the jury is not convinced there are any aggravating factors, it returns a sentence of life in prison. If one or more aggravating factor has been proven, the second step is to consider whether any mitigating factors have been proved. The third step for the jury is to balance the aggravating factors against the mitigating factors: if it decides the mitigating factors outweigh the aggravating factors, it should return a sentence of life in prison. If the jury decides that the aggravating factors outweigh the mitigating factors, it must proceed to the fourth and final step of deliberations. The fourth step requires the jury to decide whether the defendant should be sentenced to death or to life in prison (regardless of how it balanced the aggravating and mitigating factors). In People v. Young, 814 P.2d 834 (Colo. 1991), the Colorado Supreme Court held that this fourth step was necessary so that the jury could exercise its moral judgment about the defendant. In this final step, the jurors make individual moral decisions whether the defendant should live or die. Many people believe that racism plays a large part in death penalty cases. In one capital case, the defendant presented evidence to the U.S. Supreme Court that Georgia was imposing the death penalty in a racially discriminatory fashion. His evidence showed that the race of the murder victim was a major factor: a defendant who killed a white person was more likely to be sentenced to death than a defendant who killed an African-American. The race of the defendant was also a factor: an African-American defendant was more likely to be sentenced to death than a white defendant. When these factors were combined, the evidence showed that an African- American who killed a white person was far more likely to receive a death sentence than any other racial combination of murderer and victim. The Supreme Court rejected the defendant's arguments. The Court did not find fault with his statistics, but they did hold that his statistics did not prove that racism actually played a role in his particular case. 30