That was a mistake, the Colorado Supreme Court ruled, with Chief Justice Brian D. Boatright writing that the novel legal question was one “of significant public importance,” as the high court had “yet to determine what standard applies when a defendant subpoenas a participating prosecutor to testify at trial.”
The strict distinction between advocate and witness is fundamental to the justice system, Justice Boatright noted.
“As a fundamental proposition, we ask juries to base their decisions on the facts before them, not the credibility or reliability of the advocates,” Justice Boatright wrote. “Consequently, a participating prosecutor’s testimony, although rare, can compromise the integrity of the adversarial process.”
The court agreed with prosecutors that it had to step in now, rather than after a trial, because the government would have no recourse if Honstein were to be acquitted.
Justices noted that they were adopting “the federal approach” to the situation, holding that a defendant seeking to put a prosecutor on the witness stand has to show “a compelling and legitimate reason to do so,” citing a 1997 decision by the U.S. Court of Appeals for the Second Circuit.
