Supreme Court of Colorado Finds No Constitutional Issue With Requiring Defendant to Give Pre-Trial Notice of Alternate Suspect Defense

In Williams v. Florida, 399 U.S. 78 (1970), the United States Supreme Court found that a criminal defendant’s constitutional rights are not violated by forcing him to give pre-trial notice of an alibi defense. Now, the Supreme Court of Colorado has similarly found that a criminal defendant’s constitutional rights are not violated by forcing him to give pre-trial notice of an alternate suspect defense.

In People v. Dye, 2024 WL 159101 (Colo. 2024), the Supreme Court of Colorado described the case at hand as follows:

In whodunnit criminal cases, the defendant will sometimes point the finger at another person—in legal parlance, an alternate suspect. The alternate suspect defense seeks to cast reasonable doubt on the defendant’s guilt by tying someone else to the charged crime and making the defendant’s identity as the perpetrator less probable.

In this whodunnit criminal case, James Herman Dye informed the district court during a pretrial hearing that he was considering presenting alternate suspect evidence at trial to defend against charges that he murdered a woman in rural Greeley, Colorado, over forty years ago. But he asked the court to declare that he was under no obligation to endorse the alternate suspect defense, let alone disclose before trial any information related to that defense. The prosecutors objected, arguing that Dye was seeking permission to subject them to trial by ambush. They requested that, if Dye intended to pursue the alternate suspect defense, he be required to disclose any alternate suspect’s name and all the evidence bearing on that defense. They further urged the court to hold a pretrial hearing to address the admissibility of any alternate suspect evidence.

Although the district court acknowledged that there is no provision in Rule 16 of the Colorado Rules of Criminal Procedure (“Discovery and Procedure Before Trial”) expressly addressing pretrial disclosures related to the alternate suspect defense, it nevertheless ordered Dye to disclose, at least forty-five days before trial, “all evidence” related to that defense. See Crim. P. 16(II)(c). In doing so, the court relied on the provision in Crim. P. 16(II)(c) that directs a defendant to disclose “the nature of any defense, other than alibi.”

In finding that this ruling did not violate the defendant’s constitutional rights, the Supreme Court of Colorado ruled as follows:

Dye asserts that requiring him to make any pretrial disclosures related to alternate suspect evidence violates his constitutional right to due process and his privilege against self-incrimination. We are unpersuaded.

Dye’s reliance on Kilgore is unavailing here too. First, we acknowledge that in Kilgore, we said that a trial court may not “require disclosures that infringe on an accused’s constitutional rights.”¶ 1, 455 P.3d at 748. But because we concluded that the trial court’s order exceeded the discovery authorized by Crim. P. 16, we didn’t have to address the merits of Kilgore’s constitutional claims. Id. at ¶ 2, 455 P.3d at 748. For that reason, we were content to simply note that the order “arguably” infringed on Kilgore’s constitutional rights. Id. Indeed, Dye concedes that we did not “decide the constitutional issue” in Kilgore. ¶60

Second, while we expressed concern in Kilgore that allowing the prosecution access to defense exhibits before trial could violate a defendant’s constitutional rights by helping the prosecution meet its burden of proof, that concern was rooted in the fact that the district court’s discovery order exceeded the contours of Crim. P. 16(II). Id. at ¶¶ 23, 27, 29, 455 P.3d at 750–51. We explained that Crim. P. 16(II) “was carefully drafted,” and that an omission, far from being an oversight, reflected a deliberate attempt “to prevent the impairment of constitutional rights that arguably could result from a rule permitting the court to enlarge the categories of prosecutorial discovery on the basis of an ad hoc evaluation of each case.” Id. at ¶ 23, 455 P.3d at 750 (quoting Richardson, 632 P.2d at 599). Here, however, as it relates to Crim. P. 16(II)(c), we simply hold that Dye must comply with the requirement to disclose “the nature of any defense,” as we construe that phrase today. ¶61

And Dye does not ask us to conclude that Crim. P. 16(II)(c), itself, is unconstitutional—nor is there a tenable basis to do so. Courts have regularly rejected the general argument that statutes and rules requiring defendants in criminal cases to engage in reciprocal discovery are unconstitutional. See Williams v. Florida, 399 U.S. 78, 81–82, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). As the Court eloquently put it in Williams, “The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played.” Id. at 82, 90 S.Ct. 1893. 30¶62

True, we conclude today that, if necessary to allow the district court to make the admissibility determinations outlined in Elmarr, it is possible that Dye may need to provide information beyond that produced pursuant to Crim. P. 16(II)(c). But as we mentioned earlier, such information is not meaningfully different from pretrial information defendants sometimes must provide to permit a court to determine the admissibility of their proposed evidence. And Dye does not suggest that it is unconstitutional to compel defendants to share information about their proposed evidence prior to trial. It isn’t. Simply advancing the timing of defense disclosures from the middle of trial to earlier in the proceedings does not violate a defendant’s constitutional rights. See People v. Martinez, 970 P.2d 469, 473 (Colo. 1998) (citing Williams, 399 U.S. at 85, 90 S.Ct. 1893). *11 31¶63

Lastly, and most significantly, we side with Dye in disapproving of the district court’s overbroad order requiring him to disclose “all evidence” related to the alternate suspect defense. Regardless of whether that order may have threatened irreparable harm to Dye’s constitutional rights, our opinion does not. To the contrary, our opinion should assuage Dye’s concerns. Accordingly, we reject his constitutional challenge.

-CM