The Colorado Attorney General has warned that requiring a state agency to testify as experts in a criminal case may have an adverse effect on its ability to gather important information.
On March 25, 2020, an avalanche buried a service road above the west portal of the Johnson Eisenhower Memorial Tunnels near Denver, Colorado.The avalanche deposited as much as 20 feet of debris on the road and destroyed an avalanche mitigation device.
After the avalanche, snowboarder Evan Hannibal handed over his helmet video to the Colorado Avalanche Information Center. The video shot the avalanche that triggered below his snowboard. Hannibal hoped that the video and his first-person account would help to educate other skiers and snowboarders.
The Colorado Avalanche Information Center is a program within the Colorado Department of Natural Resources that provides avalanche information and education. This agency produces weather and backcountry avalanche forecasts. The Colorado Avalanche Information Center relies upon people who cause avalanches to report information for its investigations and reports.
The Criminal Case
Summit County prosecutors used Hannibal’s video to file a criminal case against him and his backcountry partner Tyler DeWitt, seeking restitution for the avalanche mitigation device. The snowboarders face charges of reckless endangerment and restitution of $168,000.
The county filed a motion announcing that it intended to call Colorado Avalanche Information Center Director Ethan Greene to testify as its expert witness at trial.
Hannibal and DeWitt have opposed the introduction of the video evidence and the use of the avalanche center’s director as an expert, arguing that the charges against them could cause other backcountry travelers to stop sharing information with the avalanche center and its investigators.
Colorado Attorney General Phil Weiser, acting as attorney for the state’s avalanche center, agreed with Hannibal and DeWitt. Weiser’s office filed motions to quash subpoenas requiring Greene and avalanche center forecaster Jason Konisberg to testify as experts at the trial of Hannibal and DeWitt.
Weiser argued that the county’s plan to call avalanche center employees as experts “could have an unintended adverse ‘chilling’ impact on the CAIC’s ability to gather important information.”
Weiser’s motion states, “There is genuine concern by CAIC that if CAIC employees appear as an expert witness in a criminal matter it could adversely impact their ability to gather relevant information from persons involved in an avalanche. . . . The more involved CAIC is in this criminal matter, the more it looks like they are working in coordination with law enforcement, rather than in cooperation with local law enforcement, resulting in a chilling effect to the detriment of CAIC’s mission.”
Weiser also argued that requiring the state avalanche center employees to testify for two days is “unduly burdensome, unreasonable and oppressive.” He argued, “To command that Mr. Greene step away from his diverse responsibilities, during the CAIC’s busiest month of the winter season, is unreasonable and impactful to the important work of this agency generally and Mr. Greene specifically.”