The Colorado Supreme Court agreed on Monday that a trial judge had no authority to order a defendant to give the prosecution a preview of what his expert witness would say at a hearing to challenge his murder convictions.

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.”

In response to a petition from defendant Roberto C. Silva-Jaquez, the Supreme Court clarified for the first time that nothing in the state’s constitution, laws or rules of procedure allows a judge to order defendants to disclose expert testimony to the prosecution in a postconviction proceeding.

“Of course, a trial court has inherent authority to carry out its duties, including as reasonably required to allow it to efficiently perform its judicial functions; to protect its dignity, independence, and integrity; and to effectuate its lawful actions,” wrote Justice Carlos A. Samour Jr. in the March 3 opinion. But requiring defendants to give the prosecution a preview of witness testimony “is simply not the sort of function necessary for the effective operation of a court.”

Samour, a former trial judge, added that the Supreme Court was not concerned about the possibility the prosecution might be “surprised” by a defendant’s expert testimony. He noted the screening process for postconviction claims gives the prosecution advance notice of a defendant’s arguments.

Adams County jurors convicted Silva-Jaquez of murder in 2014 and he received a life sentence. Subsequently, Silva-Jaquez filed a petition for postconviction relief. He contended his trial attorneys were constitutionally ineffective for, among other things, not seeking to have the jury consider him guilty of the lesser crime of vehicular homicide.

The defense planned to rely upon an expert witness at his postconviction 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.

But the parties disputed the propriety of having the defense preview 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.

Zobel sought the Supreme Court’s intervention, arguing there is “little consistency” around the state about whether judges can order defendants to disclose in postconviction cases.

“The District Court’s order here permits the prosecution to prepare for and test the truth of any expert testimony, particularly through effective cross-examination, and thus protects the integrity of the truth-finding process in postconviction proceeding,” responded Senior Deputy District Attorney Cameron Munier. 

But the Supreme Court explained that Howard needed to have authority from somewhere to order the defense to share its expert’s testimony with the prosecution. In reality, there was none.

“Such silence creates a limitation, not an opportunity,” wrote Samour. He added that the single sentence from the court’s 2014 decision was not a legal basis, either.

“There, it was the defense seeking information in the possession of the prosecution. Here, it’s the prosecution seeking information in the possession of the defense,” Samour wrote. “At any rate, in the unlikely event the prosecution is genuinely surprised at a postconviction evidentiary hearing, it may ask the court to pause the proceedings for a reasonable period of time.”

The case is People v. Silva-Jaquez.