The Colorado judicial system’s fragmented approach to sharing evidence between police, prosecutors and defense attorneys in criminal cases is cumbersome, increasingly expensive and ultimately unsustainable, according to a new report from a state task force.
The legislatively mandated task force of criminal justice stakeholders spent six months examining the state’s system for discovery — that is, the process in a criminal court case through which prosecutors must provide evidence to the defense.
The group, in a report released last week, found that the state’s centralized electronic discovery system has become painfully outdated, and that its inadequacies — as well as technological changes and shifts in evidence toward video and digital material — have pushed law enforcement agencies and others in the criminal justice system to use outside, third-party vendors to collect, store and share evidence.
The state’s centralized discovery system doesn’t integrate well with the myriad third-party vendors, the task force found. The most common vendor, Axon, has also increased its pricing over the years, driving up costs for prosecutors, defense attorneys and police who each have little leverage to bargain for better prices in individually negotiated contracts.
Some agencies can afford to pay for Axon’s premier product — which makes it much easier to handle evidence and includes time-saving features — but other offices cannot, the report found, creating “haves and have nots” across counties and offices.
The discovery process is critical to fairness in the criminal justice system, said Tom Raynes, executive director of the Colorado District Attorneys’ Council and a task force member.
“Everybody is making decisions,” he said about the participants in a criminal case. “And you can’t make informed decisions and have a fair system unless everybody has the same information in a timely manner.”
The issues with the discovery infrastructure have contributed to problems with prosecutors providing complete evidence to defense attorneys within the 21-day deadline after a defendant’s first appearance in court, with files sometimes lost, mislabeled or overlooked. The state has seen a recent uptick in judges dismissing charges or even entire cases over such discovery violations.
Colorado’s centralized system for discovery debuted in 2016, just before the explosion of body-worn camera footage, and while it was cutting-edge at the time, the system is now ill-equipped to handle the large amount of video and digital evidence included in most criminal cases, Raynes said.
The Colorado District Attorneys’ Council received an initial $3 million in state funding to build the system and pays $750,000 annually to an outside company that maintains it; that contract is set to expire next year and the price will increase, the task force found. The state currently gives the council about $3.5 million annually for both the $750,000 maintenance contract and for ongoing support and development of the system.
The task force considered rebuilding the state’s system as an all-inclusive platform aimed at replacing outside vendors, but largely discarded that idea.
“Trying to figure out what that would cost is difficult, and would it repeat what happened last time, where we built it for the current moment and then it is outdated?” said James Karbach, a task force member and spokesman for the Colorado Office of the State Public Defender.
The most favored potential solution was an approach that expands the capabilities of the current statewide discovery system — which is the only system used in some smaller and rural jurisdictions — and improves its ability to integrate with outside vendors, according to the report.
The centralized system should be modernized to focus on automation, download speed, support for cloud storage and integration with outside vendors, the task force concluded.
“The future of a modernized eDiscovery system for the lawyers in the system likely involves a merging of the (current) eDiscovery system with the premier level of third-party evidence management systems,” the report reads. “…It is clear that failing to plan or act will be the costliest both financially and to operating a fair-justice system.”
The task force recommended bargaining with outside vendors as a state, or at least in larger groups for larger contracts, to improve pricing for everyone. It would likely cost at least $3.5 million annually for just district attorneys and public defenders to access Axon’s premier-level evidence tools, the report found.
The outside vendors are so entrenched in Colorado law enforcement that it is unlikely a re-imagined state system could fully replace them, Raynes said.
“That train is too far down the track,” he said.
The task force suggested that state legislators should mandate that law enforcement agencies — which are not directly beholden to discovery rules and yet are integral in the process — create internal policies that make officers aware of discovery obligations and require them to meet related deadlines.
The group also recommended that lawmakers study the issue further and set aside money to make the improvements to the centralized system and fund contracts with outside vendors.
“Everybody has different funding sources but essentially the same needs,” Raynes said. “My personal perspective is that while it may not seem like the General Assembly should look at anything beyond state-funded agencies, this is a matter of statewide concern. If you are really seeking to achieve equity and the best criminal justice system, the legislature should at least contemplate some methodologies for assisting agencies.”
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