Colorado v. Gabriesheski

262 P.3d 653 (2011)

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Colorado v. Gabriesheski

Colorado Supreme Court
262 P.3d 653 (2011)

Facts

Mark Gabriesheski (defendant) was charged with sexually abusing his stepdaughter based on her allegations. A dependency and neglect petition was filed, which also named the child’s mother as a defendant. The juvenile court appointed a guardian ad litem (GAL) for the child. Before Gabriesheski’s trial, the child recanted. Therefore, the prosecution provided notice that it would call the child’s GAL and her social worker as witnesses. The prosecution indicated that the GAL would testify regarding a conversation with the child in which the child stated that it would be easier and would make her mother happy if she stated that she lied and that the abuse never happened. Likewise, the social worker would testify regarding a conversation with the child’s mother in which the mother disclosed that she had a talk with the child, became angry, called the child a liar, and elicited the child’s admission that she made up the allegations of abuse. The defense raised objections asserting that the child’s communications with the GAL were protected by the attorney-client privilege and the duty of confidentiality. The defense asserted that the social worker also could not testify regarding the mother’s comments because of a rule that prohibited certain professionals from disclosing communications with clients and a rule that prevented certain professionals from being examined in a criminal case regarding comments defendants had made in proceedings for dependency and neglect. The trial court made two evidentiary rulings: (1) the GAL could not testify without the child’s consent because of a duty of confidentiality; and (2) the social worker could not testify without the mother’s consent. The prosecution was unable to move forward with the case, and the charges against Gabriesheski were dismissed. The prosecution appealed. Both evidentiary rulings were affirmed by the appellate court, which ruled that the attorney-client privilege was applicable. The Colorado Supreme Court granted review. [Ed.’s note: The casebook excerpt provides the court’s analysis related to the GAL only.]

Rule of Law

Issue

Holding and Reasoning (Coats, J.)

Dissent (Martinez, J.)

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