Close Up Of Gavel Resting On Its Sounding Block

A judge may not require that a defendant share his exhibits with the prosecution before trial, the Colorado Supreme Court decided on Monday.

“District courts enjoy ample discretion in managing cases before trial, but that discretion is not unfettered,” Justice Carlos A. Samour Jr. wrote in the opinion.

Prosecutors in La Plata County charged Joshua Edward Kilgore with two counts of felony sexual assault, to which he pleaded not guilty. The district court ordered the prosecution and defense to exchange exhibits 30 days before trial, and that any undisclosed exhibits would not be used at trial.

Kilgore protested, citing both his right to make the prosecution meet its burden of proof and right to a fair trial, among other arguments. The district judge stood by her ruling, pointing to the “efficiency” that would result at trial.

In the opinion, Samour wrote that the 1963 U.S. Supreme Court case of Brady v. Maryland introduced a defendant’s right to the discovery of exculpatory information that the prosecution holds. There are certain elements that prosecutors have a right to in Colorado, including the names and addresses of witnesses that the defense intends to call as well as the nature of the defense, excluding any alibi.

However, because the law did not require the defendant to share exhibits, the district court forced Kilgore to share his defense strategy, potentially lessening the prosecution's burden of proof beyond a reasonable doubt.

“The district court, at a minimum, potentially infringed on Kilgore’s right to due process because his compliance with the disclosure order may help the prosecution meet its burden of proof,” Samour wrote.

He pointed to the significance of a decision before Kilgore’s case went to trial, stating that once the judge’s order was honored and the trial proceeded with the defense’s exhibits inappropriately disclosed, the “resulting detriment” would persist through appeal.

“You can’t unring a bell,” Samour wrote.

He added that given the number of jury trials in the state and the constitutional implications for this type of district court order, “we view this as an issue of significant public importance that is likely to recur.”

The case is In Re People v. Kilgore.

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