December 16, 2009

Colorado Supreme Court 12-14-09

People v. Gutierrez    Fourth Amendment Standing / Expectation of Privacy in Tax Returns / Probable Cause / Good Faith Exception
Last year, Weld County Sheriff's Deputies seized thousands of tax forms from a tax preparer, Amalia's Tax Service, in Greeley in order to prosecute alleged illegal immigrants for identity theft. The Court found that the IRS code requires all persons who earned income in the United States to file a tax return, whether legal or illegal. Further, the Court noted the tax code provides a procedure for those who do not have or cannot get a social security number. Lastly, the Court found that because of federal and state statutes, all persons possesses a reasonable expectation of privacy in their tax returns - even when those forms are in the hands of a tax preparer. Further, except for information on the snitch, the affidavit did not contain any information about anyone else who used the tax preparer's service. Thus, the Court held this lack of specificity could not be reasonably relied upon to search and seize thousands of tax returns - including Mr. Gutierrez's tax returns. Therefore, the Colorado Supreme Court affirmed the trial court's orders suppressing all the evidence gained as a result of the raid on the tax preparer. Not surprisingly, Justices Eid, Coates, and Rice each dissented from the opinion.
People v. Wittrein     Competency Hearing / Expert Testimony on Truthfulness / In Camera Review of Mental Health and Educational Records
The Colorado Supreme Court re-instated Mr. Wittrein's conviction on a slew of sexual assault on a child charges. Previously, the Court of Appeals reversed Mr. Wittrein's convictions because the trial court held a competency hearing in front of the jury. While not necessarily condoning the procedure, the Court held that there is no per se rule forbidding the trial court from holding a competency hearing in front of the jury. Further, the Court held that the expert impermissibly testified to the child's truthfulness on cross-examination, but that defense counsel invited the opinion. However, the prosecution first brought out from the expert the child tendency to hyper report. The Court stated on direct that, "Dr. Stern testified that K.H.'s 'scale for hyper-reporting' was 'highly elevated.' " Thus, defense counsel had no choice but to cross on this subject. Further, the Court held that the child did not waive confidentiality in the records, but that the educational records could be reviewed upon a showing by defense counsel that the records might contain relevant information. However, the defense made no such showing

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