COSTS OF PROSECUTION: THE BASICS

While every case has its own unique set of circumstances, this blog post serves as a starting point for evaluating and challenging a district attorney’s request for costs of prosecution.

Section 18-1.3-701, C.R.S. authorizes a court to order judgment against the defendant, in favor of the state or prosecuting attorney, for the costs of prosecution. These costs can include, but are not limited to:

·       fees, § 18-1.3-701(2)(a)-(d), (h),

·       expert witness costs, § 18-1.3-701(2)(e),

·       witness fees and mileage, § 18-1.3-701(2)(f),

·       costs associated with depositions, § 18-1.3-701(2)(g), or

·       any other reasonable and necessary costs, § 18-1.3-701(2)(j.5).

To best evaluate whether the requested costs of prosecution are legitimate, defense attorneys should request all supporting documentation for those costs, including invoices, receipts, and bills. Colo. R. Crim. P. 16, Part I (a).

Then, with this detailed information, defense counsel should assess if the costs:

·       are authorized by statute, § 18-1.3-701(2),

·       are unreasonable and unnecessary for the prosecution, § 18-1.3-701(2),

·       were incurred before criminal proceedings began, People v. Sinovcic, 304 P.3d 1176, 1179-80 (Colo. App. 2013) (holding costs that were incurred before criminal proceeding began are not reimbursable), or

·       are associated with dismissed charges or charges that resulted in an acquittal, People v. Palomo, 272 P.3d 1106, 1112 (Colo. App. 2011) (holding that if a defendant is convicted of fewer than all of the charged counts, the court may assess only those costs attributable to the counts for which the defendant was convicted, if an allocation is practicable).

If the request for costs of prosecution is appropriate, the court may still waive costs if the defendant is unable to pay. § 16-18-101(1); People v. Fisher, 539 P.2d 1258, 1260 (Colo. 1975). In determining whether a defendant is able to comply with an order to pay a monetary amount without undue hardship, the court must consider the defendant's present employment, income, and expenses, or any other circumstances that would impair the defendant’s ability to pay. § 18-1.3-702(4)(b), (h). However, incarceration alone does not render a defendant unable to pay costs. People v. Fogarty, 126 P.3d 238, 241 (Colo App. 2005).

Please reach out to the attorneys at 2nd-Chair if you have questions or concerns about a request for costs of prosecution.