Attacking a State of Colorado Grand Jury Indictment
by Attorney Barrett Weisz
Criminal charges in Boulder and the other state courts of Colorado
are brought by filing a criminal complaint or by an indictment issued
by a grand jury. Although the many state criminal charges like
sexual assault, domestic
violence, or DUI are brought by complaint,
Boulder prosecutors will occasionally seek an indictment from a grand
jury for theft, drugs, and other crimes. An indictment is subject
to a variety of attacks by a criminal defense attorney that can result
in the charges being dismissed.
An indictment that does not meet the legal requirements of C.R.S. § 16-5-201
can be dismissed upon a motion by a criminal defense lawyer.[1] Every
indictment must name the person charged, state the date and place of
the crime, and whether the crime alleged is drugs, theft, or some other
crime.[2] The crime
charged must be stated in terms of the criminal law defining
the crime or in a manner that is easily understood by the jury.[3]
Lack of probable cause for the crime charged is the most common challenge
to a grand jury indictment. Colorado law allows a criminal defense
attorney to challenge the grand jury's finding of probable cause. Upon
a motion by a criminal defense lawyer, the court must dismiss criminal
charges if, after reviewing the record of the grand jury proceedings,
the court determines that the indictment is not supported by probable
cause.[4] In
conducting the probable cause review the evidence is viewed in the
light most favorable to the prosecution and if the testimony conflicts
the court must draw an inference for the prosecution.[5]
Indictments can also be attacked based upon the prosecutor's
misconduct during grand jury proceedings. If a district attorney's
conduct causes actual prejudice to the defendant or the misconduct
compromises the integrity of the proceedings, the criminal charges
must be dismissed.[6] Prejudice exists when the prosecutorial misconduct "substantially
influenced the grand jury's decision to indict."[7] Prosecutors
can commit misconduct in a variety of ways.
For example, any person may submit a request to the prosecuting attorney
to testify, re-testify, or appear before the grand jury.[8] The
prosecuting attorney is required to keep a record of when they deny
such requests and the reason for the denials.[9] If the prosecutor refused
testimony without a valid reason and the offered evidence was potentially
favorable to the defendant, a criminal defense attorney can seek dismissal
based upon prejudicial prosecutorial misconduct. Also, Colorado
Rule of Criminal Procedure 6.5 allows the court to appoint a grand
jury investigator, but the investigator is precluded from questioning
witnesses or commenting, by word or gesture, on the evidence or witnesses. The
rule of grand jury secrecy can also provide a basis for a claim of
prosecutorial misconduct. When the prosecutor or his agents violate
the secrecy requirements of Colorado Rules of Criminal Procedure. 6.2,
and the defendant can demonstrate prejudice, a criminal defense lawyer
should file a motion to dismiss the indictment.[10]
If a criminal defense attorney can convince the judge that the prosecutor
who assisted the grand jury did so under an ethical conflict of interest
requiring disqualification, the criminal charges may be dismissed.[11] Disqualification
is required when the prosecutor has a personal or financial interest
in the criminal charges or if special circumstances exist that would
prevent a fair jury trial for the defendant.[12] To determine whether
the grand jury prosecutor operated under a conflict of interest, a
criminal defense attorney must find the same types of conflicts that
prevent a prosecutor from handling a criminal case after charges are
filed.
An attack upon the discriminatory selection of a grand jury may be
brought under the Sixth or the Fourteenth Amendment to the United States
Constitution.[13] The Sixth
Amendment requires that the jury pool for a grand jury be selected
from a fair cross section of the population that is served by the court.[14] Once
the actual grand jury is selected, the composition of the seated grand
jury can be challenged under the Equal Protection Clause of the Fourteenth
Amendment.[15] No
person may be excluded from serving as a grand juror because of race,
color, religion, sex, national origin, economic status or occupation.[16]
If an individual is facing criminal charges in Boulder or elsewhere
for sexual assault, domestic violence, drugs, theft or other crimes,
an effective criminal defense lawyer will try to attack the indictment
in the ways discussed in this article.[17]
