Monday, March 28, 2005

Colorado Supreme Court Determines Scope of Victim-Advocate Privilege

In this criminal domestic violence case, the Colorado Supreme Court was asked, for the first time, to determine the scope of the victim-advocate privilege, embodied in section 13-90-107(k)(I), C.R.S. (2004). The defendant, Robert Turner, Jr., was charged with domestic violence against a particular individual, M.P. Turner issued a subpoena duces tecum to the Alliance Against Domestic Violence, a private domestic violence organization, demanding production of records of M.P.'s contact with the organization. The Alliance moved to quash the subpoena. Following a hearing on the defendant's Motion to Compel production, the trial court ordered the organization to produce a broad outline of the type of assistance provided to M.P. The Alliance petitioned the Supreme Court pursuant to C.A.R. 21 for review of that order. The court issued a Rule to Show Cause, which it now makes absolute - reversing the trial court order. The court now holds that the records of assistance provided to M.P. by the domestic violence agency are within the scope of the statutory privilege, and are, therefore, protected.

The court first looked to the statutory language protecting "any communications" made by the victim to the advocate, and concluded that such language would include the initial contact made by the victim with the agency, as well as communications generated from that contact. The court next took direction from legislative history indicating that the legislature intended a broad sweep of confidentiality in an effort to encourage domestic violence victims to seek assistance. Accordingly, the court concluded that the privilege would protect the records sought, absent a showing of express or implied waiver of the privilege by the victim, which was not present in this case. Also, the court held that the defendant's due process rights were not violated by denying him access to the records. Likewise, the court rejected the defendant's contention that his right to compulsory process requires that the Alliance comply with his subpoena. It reasoned, among other things, that the statute sufficiently protects the defendant's right to compulsory process by excluding records held by law enforcement victim advocates. The full opinion can be found at http://www.courts.state.co.us/supct/caseannouncements/2005/03-28-05.htm.

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