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.

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