October 27, 2011
People v. Gabriesheski Attorney-Client Privilege / Social Worker Privilege
Facts: Typical scenario: teenage girl accuses step-dad of sexual assault; Mom thinks her daughter made up the false allegations to get back at herself and the step-dad for their attempts to raise the kid. Social Services got involved, and filed a D&N with Mom as respondent. During the pendency of the cases, the Mother and the teenager argue about the lies the teenager’s told. During this argument, the teenager confesses that she lied about the allegations. As we can never let go of a good, juicy, false accusation, the DA wanted the GAL and social worker to testify to show that Mom coerced and pressured the teenager to recant. (An argument hardly presents the hallmarks of ‘coercion’).
The defense filed two motions in limine – one barring introduction of the teenager’s statements to the GAL from the D&N under both Rule 1.6 of the Professional Rules of conduct and C.R.S. § 13-90-107 - Who May Not Testify Without Consent. The second motion in limine sought to bar the mother’s statements to the social worker under C.R.S. § 19-3-207 - Inadmissibility of Certain Evidence. A ballsy District Court granted both motions. The DA then claimed they could not proceed, and the Court dismissed the case. The DA then sought appeal of the Court’s orders barring introduction of the aforementioned statements. The Court of Appeals, with equal courage, affirmed the trial court. Moreover, regarding the statements to the social worker, the Court of Appeals went one better, and found the Social Worker Privilege under §13-90-107(1)(g), also supported the trial court’s ruling.
Issue: Whether Attorney/Client privilege or Rule 1.6 (confidentiality) barred the GAL from testifying about the teenager’s statements in the step-dad’s criminal case?
Reasoning: While admitting that the only people who can qualify to be GALs are licensed attorneys and that those GALs must perform typical duties of a lawyer in the role of GAL (e.g. examination of witnesses), the Court held the attorney/client privilege does not exist with a GAL. Simply put, the GAL is not sought to advise or counsel the client, but according to the Court, stands to present the best interests of the child. Justice Coats, unsurprisingly, authored the decision, and Justice Martinez dissented with Chief Justice Bender joining the dissent.
Issue: Whether §19-3-207 or §13-90-107(1)(g) barred the social worker from testifying about the Mother’s statements in the step-dad’s criminal case?
Reasoning: The Court reversed the Court of Appeals, and found the trial court did not make sufficient findings to support exclusion of the testimony under either §19-3-207 or §13-90-107(1)(g). Under §19-3-207, the Court stated that to justify exclusion, the trial court must find that the respondent made statements in compliance with court treatment orders. Under §13-90-107, the Court punted and reversed the Court of Appeals because the trial court never addressed exclusion of the testimony under this statute.
SIDE COMMENT: The DA claimed she could not proceed without these statements from the GAL and social worker. However, at most, these statements represent rebuttal evidence, bolstering evidence, or extraneous evidence about a recanting witness. Nothing barred the prosecution in its case-in-chief from going forth, and impeaching the teenager with her original accusations - should the teen actually recant on the stand. Further, nothing prevented the DA from being a good trial lawyer and examining the teenager and the mother about the circumstances surrounding the supposed coercion or pressure to recant. Yet, the Colorado Supreme Court reached down to rule upon seemingly innocuous, extraneous issue in a weak case to protect and save an incompetent DA who obviously cannot litigate a simple speeding case. However, no one complains about this kind of judicial activism.