February 16, 2012
Colorado Court of Appeals 2-2-12 People v. Herrera
People v. Herrera Abuse of Discretion – In Camera Review of Social Service Records / Relevancy of First Communion Photos
Facts: The prosecution charged and a jury convicted Mr. Herrera of various counts of sexual assault on a child. The case involved his two cousins as complaining witnesses. Social services had previously filed a dependency and neglect case on one cousin. The DA in the case sought and obtained the social service records. Upon reviewing the records, the prosecution disclosed the records contain potentially exculpatory evidence, and sought an in camera review of the records. The trial court did not cede to the prosecution’s request. Instead the trial court threw the issue over to the defense to file a motion regarding records - records the defense attorney had never seen. The trial court then denied the defense motion for an in camera review of the records. Subsequently, the prosecution again sought for an in camera review of the records. The defense joined the motion. Again, the trial court denied the motion, and refused to conduct an in camera review of the records.
Issue: Whether the trial court abused its discretion in refusing to conduct an in camera review of the social service records?
Reasoning: The Court of Appeals held simply, “Where a prosecutor has requested the court's in camera review of confidential social services records based on a reasonable belief that they contain exculpatory, impeaching, or inculpatory information that would materially assist in preparing the defense,
we conclude that the defendant's burden to request disclosure has been satisfied.” The Court remanded the case to the trial court, and ordered the trial court to conduct an in camera review.
Issue: Whether the trial court erred in admitting photographs of each child at their first communion?
Reasoning: The defense claimed the pictures were neither relevant nor, if relevant, admissible under CRE Rule 403. The Court of Appeals found the photos relevant because each showed the child as the child appeared at the time of the offenses. The Court buried its collective head in the sand or somewhere else by denying the substantial prejudice. The Court wrote, “While the photographs of the children apparently praying may have evoked sympathy in the jury, we are not persuaded, however, that their admission was unfairly prejudicial so as to constitute an abuse of discretion.” Communion. Praying. Little kids at their first communion. What could possibly be more prejudicial and irrelevant in a sexual assault on a child? Horrible holding.>Link to People v. Herrera here<