The Colorado Supreme Court signaled last week that it will address whether judges have the authority to make defendants who are challenging their convictions disclose details to the prosecution about what their expert witnesses will say.

In contrast to direct appeals of criminal convictions, defendants may pursue postconviction relief in the trial courts for limited reasons, including newly discovered evidence and constitutionally ineffective assistance of counsel. Generally, the criminal rules empower judges to require the defense to disclose a summary of any expert witness’s planned testimony to the prosecution — the purpose being to give the government “sufficient meaningful information” to cross-examine the expert effectively.

However, the disclosure rule does not mention postconviction proceedings and is specifically designated as a procedure “before trial.”

The state Supreme Court may now answer a question it has never addressed before: Can judges order defendants to reveal advance details about their experts’ testimony during postconviction challenges, too?

Adams County jurors convicted Roberto C. Silva-Jaquez of murder in 2014. Subsequently, Silva-Jaquez filed a petition for postconviction relief and planned to rely upon an expert witness at his hearing. The district attorney’s office acknowledged there was no specific rule addressing the subject, but it requested pre-hearing disclosure of any report the expert would produce.

Stephen E. Howard, a retired district court judge assigned to the case, granted the request for information-sharing. He largely relied on a single sentence in a 2014 Colorado Supreme Court decision pertaining to the prosecution’s obligation — not the defense’s — to disclose materials in postconviction cases.

It is “undisputed that district courts have the inherent authority to manage their dockets through scheduling orders requiring the endorsement of witnesses and other timely disclosures, as they deem necessary to avoid delay-causing surprise at evidentiary hearings on post-conviction claims, just as at criminal trials,” wrote then-Justice Nathan B. Coats.

The parties disputed the propriety of having the defense reveal its expert’s work.

“Never before have I gotten an order from a judge, actually, when everything is said and done, ordering me to provide disclosures,” Silva-Jaquez’s attorney, Cassandra Zobel, told Howard in June after he issued his order.

“In all the postconviction litigations that I have been a part of,” countered Assistant District Attorney Rhoda Pilmer, “postconviction counsel has always provided this information to us without a request to the court. So, I think we are on opposite ends of that at this time.”

Howard said he was surprised the Supreme Court had never provided guidance on the subject, adding he was “not offended” if Zobel wanted to immediately challenge his ruling in the state’s highest court.

On Aug. 21, Zobel filed a petition arguing criminal defendants are being treated differently across jurisdictions and courtrooms due to the absence of direction. She elaborated that prosecutors are not required to make similar disclosures to the defense, so orders like Howard’s put defendants at a “strategic disadvantage” in postconviction challenges.

“Long before any hearing is set, postconviction claims have been thoroughly briefed and any expert testimony will be in support of those claims,” Zobel wrote. “In a postconviction posture, the State is fully aware of the claims made by a defendant.”

The Supreme Court has ordered Howard and the prosecution to respond to the petition. Justice William W. Hood III did not participate in the appeal, nor did he disclose a reason why.

The case is People v. Silva-Jaquez.