Colorado Appellate Courts "Disapproving" Lower Court Decisions That Led to Acquittal

Generally speaking, the Double Jeopardy Clause precludes the government from appealing an acquittal (whether an acquittal by a jury or by a judge). Once you're acquitted, you're off the hook, even if the trial judge erred in instructing the jury, in deciding whether there was sufficient evidence, in admitting evidence, in refusing to admit evidence, or the like.

But I just learned that, for the last 100 years, Colorado has allowed the prosecution to appeal acquittals, even though the appeal couldn't affect the result. Indeed, the bottom line decision wouldn't be "judgment affirmed" or "judgment reversed" (since the judgment of acquittal couldn't be reversed)—rather, it would be "judgment approved" or "judgment disapproved."

The prosecution's goal in such a case would presumably be to try to set a precedent that would foreclose similar errors in the future. Of course, if the judgment is approved because the appellate court agrees with the trial court, then this would set a precedent that would encourage such trial court decisions in the future.

Here's an explanation from People v. Cox (Colo. App. 2021):

Section 16-12-102(1) [of the Colorado Revised Statutes] authorizes an appeal by the district attorney in a criminal case, but only as to questions of law.  As the authorizing statute makes clear, "[n]othing in this section shall authorize placing the defendant in jeopardy a second time for the same offense." Therefore, all we can do is approve or disapprove the trial court's rulings.

The careful reader might ask: If there's nothing at stake for the defendant, why would the defendant litigate the appeal? Indeed, that's what happened in the recent case that led me to this, People v. Morris (Colo. App. 2025), but the court—rightly wanting an adversarial presentation—sought and received amicus help:

Because Morris did not file a brief, we solicited amicus briefs. We received an amicus brief from the Colorado Attorney General's Office and the Colorado District Attorney's Council. We received a second amicus brief from the Colorado State Public Defender, Colorado Criminal Defense Bar, and Alternate Defense Counsel.

Query whether this would be forbidden in the federal system by the federal rule against advisory opinions (though cf. Camretta v. Greene (2011)). But many states don't have such a rule, and indeed expressly provide for courts to give advisory opinions in certain cases. And while Colorado courts do seem to have some rule against advisory opinions, it doesn't appear to be categorical enough to always preclude § 16-12-102(1) appeals.

Thanks to Prof. Katie Steefel (Denver) for enlightening me on this.

Comments

[Frank Drackman]

Wow, Colorado is almost Pre-Nazi Germany, and their voting laws are even worse! they have fewer "Early Voting" Days than even Georgia, Rob Man-friend should pull the All-Star game out of Denver!!!!

[Bored Lawyer]

I guess Colorado does not have a case or controversy requirement. Since the defendant cannot be retried, any such decision is purely advisory.

[MatthewSlyfield]

A lot of states allow advisory opinions by their courts.
From the Article:

Query whether this would be forbidden in the federal system by the federal rule against advisory opinions (though cf. Camretta v. Greene (2011)). But many states don't have such a rule, and indeed expressly provide for courts to give advisory opinions in certain cases.

[Joe_dallas]

Gorsuch's dissent in Gamble is the correct intepretation of 5a double jeapordy clause.

[Noscitur a sociis]

Were you just proud of yourself for recognizing the term “double jeopardy”? Gamble has absolutely nothing to do with this.

[John F. Carr]

The Supreme Judicial Court of Massachusetts will occasionally find an opportunity to drop some pro-prosecution dicta. We have no formal process.

Defendant was charged with murder. Prosecution wanted an instruction on manslaughter as a lesser included offense. Defense objected because no jury could convict of murder on these facts. No instruction given. Jury did convict of murder. Judge granted a discretionary reduction to manslaughter. Prosecution appealed that. The SJC opined that the manslaughter instruction should have been given. Courts have since treated this as binding precedent. The prosecution is entitled to an instruction on any lesser included offense supported by the evidence.

Recently, in affirming a murder conviction where the defense argued heat of passion the court took the opportunity to note that it was prospectively disallowing the heat of passion defense under similar facts. (Specifically, the defense is not available when the defendant hears that his girl cheated on him but didn't see them together.)

[Ciobair]

Oh, very interesting from a comparative law perspective. Scotland has the Lord Advocate's Reference procedure which works in very similar ways. Famous examples were Lord Advocate's Reference No 1 of 2001, which clarified that it is competent to charge a husband for the rape of his wife. And the 'Trident Three" case where the Sherrif court had acquitted three demonstrators from the charge of maliciously damaging a laboratory at Coulport that is part of the infrastructure of the UK's nuclear deterrent by accepting the women's argument that nuclear weapons were illegal under international law, and hence their actions justified under the necessity defence. The reference then ruled that breaches of international law do not give individual citizens a cause for enforcement action. In both cases the original acquittals stood, but the Reference creates binding precedents for future courts

[KenveeB]

I kind of like the idea. I've had judges pull some absolutely ridiculous shenanigans that would 100% get them reversed, but because they prejudiced our case so much that we lost, they never get reviewed and keep pulling the same stuff.

[John F. Carr]

A more rarely used process in Massachusetts is the local version of a writ of mandamus. If the judge is about to give an unreasonably pro-defendant jury instruction the prosecutor can file an emergency application for discretionary relief with the Supreme Judicial Court. The SJC has supervisory authority. I have no statistics on how often this is attempted and how often it succeeds.

[Stupid Government Tricks]

My first thought, contra all the lawyers weighing in here, is why not pay the winning defendant and his lawyer to defend the prosecutor's appeal? Surely that's a more logical defense than friends of the court whose only interest is how it affects future cases which are unknown at the time. My first cynical take is that would be too expensive, and my second even more cynical take is that would be too honest an opposition and the whole point of prosecutorial appeal of an acquittal is to stack the deck against future acquittals.

[David Nieporent]

Why do you think an acquitted criminal defendant would have any more interest in the appeal than the amicus? The only issue — the only reason for appeal — is "how it affects future cases."

[Stupid Government Tricks]

The acquitted defendant is the closest you're going to get to any real skin in the game. The amici may worry about precedent derailing future cases, but where's the standing? Where's the actual controversy? Isn't that one of the hallmarks of Article III, that there must be actual controversies, and why advisory opinions are not a thing in federal courts?

The prosecutor and those amici are just arguing over hot air. There is no real case.

[David Nieporent]

The acquitted defendant is the closest you're going to get to any real skin in the game.

No; the acquitted defendant literally has zero skin in the game. An amicus, on the other hand, likely speaks on behalf of interests who will have skin in the game.

but where's the standing? Where's the actual controversy? Isn't that one of the hallmarks of Article III, that there must be actual controversies, and why advisory opinions are not a thing in federal courts?

Why are you talking about federal notions? We all agree that in federal court this would not fly. But states are not required to utilize the same rules regarding standing. And if they did, then the acquitted defendant would not be a proper litigant either.

[Stupid Government Tricks]

Well, quibble all you want, pound as many tables as you want. I made a point, you decided it was out of bounds, as if you control the comments. Piss off.

[MatthewSlyfield]

He didn't say your point was out of bounds, he said it is wrong. Which it is.

[hitchcock]

Ohio also permits prosecutorial appeals even after an acquittal, although the state may not appeal the acquittal itself. State v. Bistricky, 51 Ohio St. 3d 157 (1990); Ohio Rev. Code § 2945.67.

At the same time, under the Ohio constitution, the "judicial power" exercised by courts is limited to "the power to decide specific cases between conflicting parties," that is, "actual controversies between parties legitimately affected by specific facts," and courts lack the power to "declare principles or rules of law which cannot affect the matter at issue in the case" at hand. State ex rel. Martens v. Findlay Municipal Court, --- Ohio St. 3d ---, 2024-Ohio-5567, overruling State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451 (1999) (a 25-year experiment in abolishing standing requirements when some categories of "public rights" are involved).

How these two lines of doctrine intersect has never been clear to me. (Nor do I see what incentive a defendant has to participate in defending an appeal that will have no effect on the outcome.)

[RAJones]

Nothing to do with the facts or law of the case, but, Wow, take a look at footnote 3 of the case.

[3] We do not condone the deprecatory and sarcastic statements that the senior deputy district attorney directed at the trial judge in his opening brief. The record is clear that the trial court was unfailingly polite to the deputy district attorney. The court carefully considered all arguments made by the deputy district attorney and, in fact, accepted many of them throughout the course of this protracted case. The fact that the court made a ruling (that was entirely consistent with the Colorado Supreme Court pattern jury instructions) that displeased the district attorney is not a warrant to make sarcastic and snide remarks about the judge in this

[Savagely Average]

In answer to EV’s query, the lack of a possibility people’s
real-world interests being affected makes this an advisory opinion to a ‘T’.

[Ama Valde Intellectum]

People in the legal know consider Colorado a disgraceful place. Remember the SCOTUS spanking over the disgusting hateful remarks made by CO judges in the Masterpiece Cake case

"y the Commission’s treatment of Phillips’ case, which showed elements of a clear
and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners
at the Commission’s formal, public hearings endorsed the view that
religious beliefs cannot legitimately be carried into the public sphere
or commercial domain, disparaged Phillips’ faith as despicable and
characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. "

This case originated from a perverted sick man-turned-ugly-woman, a sickening example of Trans grotesqueness . Google pictures, listen to the creep
YES< THIS IS A MAN
https://media.them.us/photos/60cb9c92808fdfe190808a10/16:9/w_1920,c_limit/image001.jpg