In this C.A.R. 21 proceeding, the Colorado Supreme Court considers whether the reverse transfer statute, § 19-2-517(3), C.R.S., allow a defendant facing direct file charges to limit waiver of privilege to the reverse-transfer hearing alone. The defendant sought a protective order allowing him to introduce evidence at the reverse-transfer hearing while prohibiting the prosecution from using it at trial. The evidence the defendant sought to introduce and protect included expert reports, mental health records, school information, human services records, and records of dependency and neglect proceedings. The district court denied the request and the defendant appealed.
Determining that it has jurisdiction under C.A.R. 21, the Supreme Court holds that neither § 19-2-517(3) nor common law principles allow the defendant to limit his waiver to use of the information at the reverse-transfer hearing alone. The Court considers the plain language of the statute, which does not contain any provisions regarding limited disclosure. Additionally, the Court rejects the defendant’s reliance on Alcon v. Spicer, 113 P.3d 735 (Colo. 1983). While that case limits implied waivers to only the specific condition placed at issue, it does not suggest that waiver can be limited to a particular hearing or only part of litigation. Finally, the Court rejects the argument that the denial of a protective order impermissibly burdens the defendant’s Fifth Amendment right against self-incrimination, reasoning that nothing in the statutory scheme compels the defendant to produce privileged information.
The Court acknowledges the difficult choice the inability to exercise a limited waiver places on a defendant and the potential hindrance it may place on a defendant’s use of relevant information during a reverse-transfer hearing. The Court notes that any glitch in the statutory scheme must be addressed by the General Assembly. In a special concurrence, Justice Gabriel urges the General Assembly to clarify its intent to establish appropriate limits on any waiver of privilege exercised during the reverse transfer hearing.