DENVER (AP) — An appeals court added Colorado to the list of states that can allow criminal suspects to search victims’ homes to bolster their defense — a move that raised concerns among prosecutors and victims’ advocates.
The Colorado judges wrote in their Thursday decision that courts in California, New Jersey, New York, North Carolina and Massachusetts have determined a defendant’s right to a fair trial sometimes outweighs privacy interests.
Victims’ rights advocates strongly objected to the decision.
“It’s going to have a re-victimizing effect in a criminal justice process that is already very re-victimizing,” said Boulder-based victims’ rights attorney John Clune.
People could be less likely to report crime if they see judges allowing suspects to search private homes, he added.
The Colorado judges made their decision after a man convicted of sexually assaulting his cousins argued that a judge was wrong to deny him access to the crime scene in his grandmother’s basement.
The appeals court agreed the man had not proven a need to search her home, in part because he already had photos of the crime scene, but said judges can grant such access.
Courts have allowed defendants to get confidential records and have victims ordered to undergo psychological evaluations, and defense attorneys regularly seek evidence from cellphones, computers and other property. The appeals court said it found no ruling or state law specifically addressing access to a private home.
Defendants would have to show that the search would yield evidence that is “relevant, material and necessary to his defense,” according to the ruling. Courts would have to balance that justification against the resident’s privacy interests.
It’s sometimes necessary to return to a crime scene in cases where the defense feels investigators were not thorough, didn’t take enough photographs or didn’t search the right places, Denver defense attorney Karen Steinhauser said.
“The court is really going to have to look closely at the reason the defense is giving for why they have this need to go into their residence,” she said.
Rich Orman, a senior deputy district attorney in Colorado’s 18th Judicial District, which was not involved in the sex assault case, said the ruling essentially allows suspects to search property without having to show probable cause — the constitutional standard investigators must meet in order to get a search warrant.
The decision doesn’t answer key questions about how such a search would be conducted, whether police would be present and what would happen if a victim refused to cooperate.
“The implications of this decision are staggering,” Orman wrote in an email to The Associated Press. “This decision would allow the perpetrators of crimes to demand access to the property of crime victims, even victims of home invasion robberies and sexual assaults. And this can apparently be done without notice. … The potential for re-victimization is off the charts.”
The broadly written decision may be interpreted differently by different judges, creating the potential for abuse, Clune said.
He said the appeals court should have relied more heavily on a 2010 case in which the Colorado Supreme Court ruled that a judge erred in ordering the parents of a sex assault victim to let a defense expert search their home computers and emails. The high court found the search would have violated the parents’ rights against unlawful search and seizure.
The Colorado attorney general’s office is reviewing the decision, spokeswoman Carolyn Tyler said.
By Sadie Gurman, AP Writer
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