The Colorado Supreme Court clarified on Monday that criminal defendants may only call prosecutors as witnesses when there is a “compelling and legitimate reason,” and a man facing charges in Boulder County had not met that threshold in his case.

The justices elected to hear the prosecution’s appeal in the ongoing proceedings against Harold Lloyd Honstein because the Supreme Court had never previously addressed when prosecutors can be forced to testify in the cases they are handling. Moreover, the question would remain unanswered if jurors ended up acquitting Honstein.

Chief Justice Brian D. Boatright, in the court’s June 3 opinion, noted the importance of maintaining a boundary between an attorney’s role litigating a case and their potential role testifying as a witness in that same case.

“Equally important, however, is a defendant’s right to mount a cogent defense,” he wrote. “Accordingly, we hold that a defendant who wishes to call a participating prosecutor as a witness must demonstrate a compelling and legitimate reason to do so. This standard requires the testimony in question to be both vital to the case and unobtainable from other sources.”

According to the police report, Honstein punched a woman and threw a soda can at her. Boulder County prosecutors responded by charging Honstein with misdemeanor assault and harassment.

In September, shortly before Honstein’s trial, Deputy District Attorney Patricia Mittelstadt spoke with the alleged victim by phone. The victim “spontaneously and unexpectedly” changed her story, Mittelstadt wrote, now denying Honstein ever punched her. Mittelstadt quickly informed the defense, and the district attorney’s investigator subsequently confirmed the victim had backed away from her initial allegation.

The defense then subpoenaed Mittelstadt to testify at trial about what the victim told her. The district attorney’s office argued it was unnecessary to call Mittelstadt as a witness, as the prosecution was willing to disclose the inconsistent statements to the jury.

However, there was no basis to force Honstein to “forego his constitutional right to present a defense by compelling the attendance, and presenting the testimony, of his own witnesses,” wrote County Court Judge Elizabeth Brodsky in rejecting the prosecution’s position. “Defendant must be able to explore each of the named victim’s inconsistent statements as each of the inconsistent statements impact her credibility.”

The district attorney’s office appealed directly to the Supreme Court, arguing prosecutors need to be able to meet with witnesses one-on-one to discuss logistics, and it is not practical to always have a non-lawyer present just in case a witness discloses a key revelation.

“To be certain, when an attorney interviews a victim without an investigator present, that person is taking a real risk of becoming a witness in the case,” acknowledged prosecutor Adam D. Kendall. However, in Honstein’s case, “the assigned prosecutor was holding a logistics meeting where the victim unexpectedly blurted out a new statement.”

Boatright clarified that Honstein and Brodsky were correct on one point: Even though the prosecution was willing to stipulate to a jury that the victim changed her story, the defense could not be forced to bypass live testimony about the partial recantation and accept the prosecution’s statement.

Otherwise, the Supreme Court deemed Mittelstadt’s testimony to not be “compelling and legitimate” because the victim also shared her new version of events with the prosecution’s investigator, who would be able to testify at trial without issue.

“Though the two conversations were distinct, the second conversation provides all the relevant information found in the first,” Boatright explained. And if the victim admits on the witness stand to her shifting story, “there is no compelling need for the prosecutor or the investigator’s testimony.”

The case is People v. Honstein.