Prosecutorial Misconduct in Colorado

Under Colorado law, Prosecutorial misconduct occurs when the district attorneys or attorneys general engage in some kind of wrongdoing -- or even illegal action -- during the prosecution of a criminal case.

Prosecutors in Colorado are expected to conduct themselves under a high standard of conduct, but often prosecutors go too far to try to get a conviction.

Types of Prosecutorial Misconduct

This kind of conduct typically refers to some dishonest act or improper attempt to persuade the jury of a person's guilt. Examples include:

  • Intentionally seeking inadmissible answers from witnesses;
  • Making comments about inadmissible evidence;
  • Appealing to the passions or prejudices of a juror;
  • Violating the rules regarding cross-examination of a witness or the defendant;
  • Improperly commenting on the defendant's right not to testify against him or herself;
  • Intentionally misstating the law or evidence;
  • Appealing to a "higher authority;"
  • Discriminating during the jury selection process;
  • Failing to disclose evidence to the defendant which is favorable to him or her (Brady violations); or
  • Intimidating a witness.

Misconduct During Closing Arguments

A time during the trial where misconduct often can happen is during the closing argument of the prosecutor's case against an alleged offender. It can include:

  • making comments about facts that were not introduced into evidence;
  • appealing to a jury's sense of sympathy towards the victim;
  • testifying for a witness that did not appear;
  • adding the prosecutor's personal opinion about the case;
  • presenting any false evidence; or
  • vouching for any witness's truthfulness or accuracy.

Consequences to the Prosecutor

If the prosecutor engages in misconduct, he or she runs the risk of:

  • having to retry the case;
  • receiving an admonishment from the Colorado Supreme Court; or
  • formal discipline for violation of the Colorado Rules of Professional Conduct for attorneys.

This can greatly affect a prosecutor's career, especially if the media catches wind of the prosecutor's bad acts.

Remedies for the Defendant

If the prosecutor engaged in substantial misconduct that affected the outcome of the case, the defendant can move for a new trial by:

If the prosecutor behaves in a way that meets the definition of misconduct, an appeals court will have to decide whether the misconduct affected the criminal case. If not, the individual will not receive a new trial.

If the prosecutor's misconduct did substantially affect the case, and the outcome of the case was changed as a result of the misconduct, a new trial may be ordered.

This is a very high burden to meet, and new trials do not come often, even when the prosecutor behaves inappropriately.

Below, our Colorado criminal defense lawyers discuss the following frequently asked questions about prosecutorial misconduct for Colorado residents:

Can 20i 20get 20a 20new 20trial 20if 20there 20was 20prosecutorial 20misconduct 20in 20my 20riverside 20county 20criminal 20trial
Prosecutorial misconduct occurs when the district attorneys in Colorado engage in some kind of wrongdoing or even illegal action during the prosecution of a criminal case.

1. What is prosecutorial misconduct?

Prosecutorial misconduct occurs when the district attorneys in Colorado engage in some kind of wrongdoing, or even illegal action during the prosecution of a criminal case.

Prosecutors in Colorado are expected to conduct themselves under a high standard of conduct, but often prosecutors go too far to try to get a conviction. Not all "mistakes" rise to the level of misconduct, it requires some level of:

  • intentional;
  • reckless; or
  • knowing disregard for the rules and decorum expected of attorneys. 1

2. What types of misconduct exist in Colorado?

This kind of conduct typically refers to some dishonest act or improper attempt to persuade the jury of a person's guilt. Examples include:

  • intentionally seeking inadmissible answers from witnesses;
  • making comments about inadmissible evidence;
  • attempting to shift the burden of proof;
  • appealing to the passions or prejudices of a juror;
  • violating the rules regarding cross-examination of a witness or the defendant;
  • improperly commenting on the defendant's right not to testify against him or herself;
  • intentionally misstating the law or evidence;
  • appealing to a "higher authority;"
  • discriminating during the jury selection process;
  • failing to disclose evidence to the defendant which is favorable to him or her; or
  • intimidating a witness.

2.1 How does jury selection discrimination occur?

Every person in the United States who is convicted of a crime is entitled to be tried before a jury before his or her peers. During jury selection, prosecutors may not discriminate on the basis of:

  • race,
  • religion,
  • ethnic, or
  • other similarly protected groups. 2

For example, if the defendant in a criminal case is African-American, it would constitute misconduct to attempt to exclude all other African-American jurors from the panel.

Sadly, this happens in the real world all too often, but when it does it should be challenged with the help of an experienced criminal law attorney.

2.2 How can witnesses be intimidated?

Prosecutors are not allowed to intimidate a witness to keep him or her from testifying on the defendant's behalf. This can happen when a district attorney:

  • threatens a witness with criminal action in order to keep him or her from testifying;
  • has the witness deported to stop him or her from testifying; or
  • threatens the friends or family of a potential witness to keep him or her from testifying.

2.3 How is the right not to testify violated by the prosecutor?

The state through its attorneys is not permitted to comment on the fact that a defendant chose not to testify.

Under the 5th Amendment to the United States Constitution criminal defendants are not required to testify against themselves.3 As a result, it is impermissible for a prosecutor to imply that a defendant must be guilty because he or she chose not to testify on his or her own behalf.

2.4 What types of comments about inadmissible evidence are not allowed?

There are rules about what types of evidence can come in or must stay out of a criminal trial. Prosecutors know this, but sometimes try to get around it by making backhanded comments about the existence of that evidence, or attempting to "casually" work it in to a question or argument.

This can result in a new trial being ordered, and the prosecutor facing discipline from the Colorado Supreme Court.

3. What misconduct can occur during closing arguments?

A time during the trial where misconduct often can happen is during the closing argument of the prosecutor's case against an alleged offender. It can include:

  • making comments about facts that were not introduced into evidence;
  • appealing to a jury's sense of sympathy towards the victim;
  • testifying for a witness that did not appear;
  • adding the prosecutor's personal opinion about the case;
  • presenting any false evidence; or
  • vouching for any witness's truthfulness or accuracy.

As with other types of misconduct, inappropriate actions by the prosecutor can result in a new trial and sanctions.

4. What consequences can the prosecutor face for misconduct?

If the prosecutor engages in misconduct, he or she runs the risk of:

  • having to retry the case;
  • receiving an admonishment from the Colorado Supreme Court; or
  • formal discipline for violation of the Colorado Rules of Professional Conduct for attorneys.4

This can greatly affect a prosecutor's career, especially if the media catches wind of the prosecutor's bad acts.

5. What remedies do I have if the prosecutor engaged in misconduct?

If the prosecutor engaged in substantial misconduct which affected the outcome of the case, the defendant can move for a new trial by:

  • filing a motion for new trial;
  • filing an appeal.

If the prosecutor behaves in a way that meets the definition of misconduct, an appeals court will have to decide whether the misconduct affected the criminal case. If not, the individual will not receive a new trial.

If the prosecutor's misconduct did substantially affect the case, and the outcome of the case was changed as a result of the misconduct, a new trial may be ordered. This is a very high burden to meet, and new trials do not come often, even when the prosecutor behaves inappropriately.

5.1 My criminal case was tried by a different attorney. Can you represent me on my appeal?

Yes we can. Just because another attorney represented you at trial does not mean that you have to use the same attorney on appeal. In fact, for a number of reasons, it is often a good idea to hire a different attorney for a motion for new trial or an appeal.

Female attorney operator ss

Call us for help...

For questions about prosecutorial misconduct or to confidentially discuss your case with one of our skilled Colorado criminal defense attorneys, do not hesitate to contact us. For cases in California, please see our page on prosecutorial misconduct under California law.

We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities.

In California? See our article on prosecutorial misconduct in California.

In Nevada? See our article on prosecutorial misconduct in Nevada.


Legal References:

  1. Public Integrity.org. Misconduct and Punishment.
  2. Cerrone v. People, 900 P.2d 45 (1995) (outlining process for determining jury selection discrimination and finding that discrimination in fact occurred but did not require that convictions be reversed).
  3. U.S. Const. Amend. V (No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.)
  4. Colorado Bar Association. Colorado Rules of Professional Conduct.

Free attorney consultations...

The attorneys at Shouse Law Group bring more than 100 years collective experience fighting for individuals. We're ready to fight for you. Call us 24 hours a day, 365 days a year at 855-LAW-FIRM for a free case evaluation.

Regain peace of mind...

Shouse Law Defense Group has multiple locations throughout California. Click Office Locations to find out which office is right for you.

Office Locations

Shouse Law Group has multiple locations all across California, Nevada, and Colorado. Click Office Locations to find out which office is right for you.

To contact us, please select your state:

Call us 24/7 (855) 396-0370