From:	dailey, john
Sent:	Monday, September 23, 2019 11:11 AM
To:	michaels, kathryn
Subject:	FW: Proposed revisions to Crim. P. 41 (keep for distribution later)


A judge has inquired whether the rules committee would be interested in amending rule 41 in response 
to the supreme court’s decisions in Cardman v. People, 2019 CO 73 and Phillips v. People, 2019 CO 
72.   In those cases, the supreme court held that matters not raised in pretrial motions to suppress are 
not waived but only forfeited, and thus, are subject to plain error review. 

A possible amendment would include explicit “waiver” language in Crim. P. 41: 
  
At the end of subsection e add: “An aggrieved person shall be deemed to have waived any 
reason to suppress evidence not timely raised in accordance with this rule, and any such reason 
shall not be raised or considered on appeal.”

At the end of subsection g add: “A defendant shall be deemed to have waived any reason to 
suppress an involuntary confession or admission not timely raised in accordance with this rule, 
and any such reason shall not be raised or considered on appeal.”

       After “timely” we could add something like “and specifically” or “and explicitly.”

Perhaps a comment could be added making clear that the rule uses “waiver” deliberately to 
mean not merely forfeiture and uses the term in the sense contemplated by Rediger.