People v. Platteel.

2023 CO 18. No. 22SA384. Colo. Const. art. II § 16a—Victim Rights Act, CRS §§ 24-4.1-300.1 to -305—Victim’s Right to Attend “Critical Stages”—Defendant’s Ability to Compel an Unsubpoenaed Victim Attending a Preliminary Hearing to Testify—McDonald v. District Court, 576 P.2d 169 (Colo. 1978).

April 24, 2023

In this original proceeding, the Supreme Court  determined whether a trial court may properly permit the defense to compel a “victim”—as defined in the Victim Rights Act (VRA)—to testify during a preliminary hearing without a subpoena. Because the Court concluded that a trial court may not do so, it made absolute the rule to show cause.

The county court here relied on McDonald v. District Court, 576 P.2d 169 (Colo. 1978). Given the state of the record at the hearing, however, the court erred by applying McDonald. And, in any event, McDonald preceded the VRA. McDonald is now overruled to the extent it conflicts with the VRA. Reading McDonald with the gloss supplied by the VRA, the Court held that defense counsel may not call to the witness stand an unsubpoenaed victim who happens to be in attendance at a preliminary hearing.

The Court noted that this opinion in no way vests a victim with immunity from testifying at a preliminary hearing. However, if the defense wishes to call a victim to testify at a preliminary hearing, it must properly serve the victim with a subpoena. If the people move to quash the subpoena, the court must exercise its discretion under Colorado jurisprudence to determine how to proceed.