In the Matter of Attorney C

Summary

The Colorado Supreme Court considered a prosecutor's ethical duty under Colorado Rule of Professional Conduct 3.8(d) to disclose exculpatory information before a preliminary hearing. The court held that material exculpatory evidence must be disclosed before any critical stage of the criminal proceeding, but that a disciplinary violation requires an intentional failure to disclose. Because the hearing board found the respondent's conduct negligent and knowing, rather than intentional, the court reversed the public censure.

Holdings

1. A prosecutor who is aware of material exculpatory evidence must disclose it to the defense before the next critical stage of the criminal proceeding, including a preliminary hearing, even if the evidence would not specifically determine the outcome of that hearing.
2. Rule 3.8(d) includes a materiality requirement based on whether the evidence is outcome-determinative to the broader criminal proceeding, generally at trial, rather than whether it would change the result of a particular preliminary hearing or other intermediate proceeding.
3. A prosecutor violates Rule 3.8(d) for disciplinary purposes only when the prosecutor intentionally withholds material exculpatory evidence; negligent or knowing conduct, without intent to withhold, is insufficient.
4. Attorney C's failures to disclose exculpatory information before the two preliminary hearings were untimely, but they did not constitute disciplinary violations under Rule 3.8(d) because the hearing board found negligence and knowledge, not intentional withholding.

Questions Presented

1. Whether Colo. RPC 3.8(d) applies to a prosecutor's failure to disclose recently discovered exculpatory information before a preliminary hearing.
2. Whether Rule 3.8(d) incorporates a materiality requirement tied to the outcome of the specific proceeding or to the broader criminal case.
3. Whether a violation of Rule 3.8(d) requires intentional withholding of exculpatory evidence.
4. Whether Attorney C's conduct in the Skidmore and Stepbrother matters violated Rule 3.8(d).

Disposition

reversed