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May 02, 2024 Trial Tactics

Alternate Suspects and the Privilege against Self-Incrimination

Stephen A. Saltzburg

The Issue

When the defendant in a criminal case defends on the ground that someone else committed the charged crime, a question will often arise as to how to proceed when the alternate suspect indicates in advance of trial an intent to rely upon the privilege against self-incrimination in response to questions.

An Illustrative Case and Its Facts

The Colorado Supreme Court addressed the question in Rios-Vargas v. People, 532 P.3d 1206 (Colo. 2023). After Bobby Vialpando’s trailer home was burglarized in September 2013 while he was away on vacation, his sister called the police to report that the back door to the trailer was open. The police found a hole in the master bedroom door and two kitchen knives nearby, which led them to theorize that the burglar used the knives to carve a hole in the door to reach through and unlock it. The police also found a piece of latex glove with a smear of blood on it, which was the only item submitted for DNA analysis.

When Vialpando returned, he identified as missing over $15,000 in jewelry, a wallet, a five-gallon bottle filled with approximately $3,000 in loose coins, and the ownership title for a trailer located across the street rented to his niece, Sylvia Villalobos. Vialpando immediately suspected that Villalobos burglarized his trailer because (1) he had threatened to evict her for failure to pay rent, (2) she knew he would be gone for the week, (3) she knew the location of the stolen items in his master bedroom, (4) she had previously stolen from his family, (5) she was living with a tattoo artist who had access to latex gloves, (6) she knew the value of the stolen jewelry because she was with Vialpando when he pawned similar pieces, and (7) she moved out of the trailer right around the time of the burglary. Vialpando contacted the police to show them handfuls of coins that he assumed were his that he discovered scattered in and around the trailer Villalobos had recently vacated.

During the initial investigation, the police interviewed the defendant, Nora Hilda Rios-Vargas, and her ex-husband, Paciano Garcia-Escobar, about a robbery involving Villalobos’s boyfriend and also asked about the burglary of Vialpando’s trailer. Garcia-Escobar said he overheard Villalobos talk about robbing a family member, and Rios-Vargas told the police that Villalobos said she would make her uncle pay for kicking her out of his trailer. Rios-Vargas also said she was with Villalobos when Villalobos cashed approximately $120 worth of coins at a cashing machine. Both Garcia-Escobar and Rios-Vargas told the police they noticed Villalobos had new pieces of jewelry, which Villalobos said she had purchased from an uncle.

Despite Vialpando’s suspicions, his discovery of coins around the vacated trailer, and the statements of Garcia-Escobar and Rios-Vargas, the police—who regarded Villabos as “suspect number 1”—attempted, but never managed, to interview her or her family and friends. The police stopped working on the burglary case after about four months. In April 2015, the police learned that the DNA sample from the blood on the piece of latex glove found in Vialpando’s trailer matched a DNA sample from Rios-Vargas, and she was charged with second degree burglary.

The Trial

Rios-Vargas’s theory of defense at trial was that Villalobos committed the burglary and framed her for it in retaliation for the cooperation of Rios-Vargas and her ex-husband in the investigation of Villalobos’s boyfriend, who was subsequently arrested. Both the prosecution and the defense subpoenaed Villalobos to testify at trial. But the prosecution announced mid-trial that it would not call Villalobos and argued that she should be advised of her Fifth Amendment rights before Rios-Vargas could call her as a witness. The prosecution made clear that it had not offered Villalobos immunity and did not intend to do so. The trial judge appointed counsel for Villalobos, who subsequently informed the court that Villalobos would be “taking the Fifth.”

The judge accepted Villalobos’s blanket invocation of the Fifth Amendment, reasoning that it was supported by objective evidence, much of which had triggered Vialpando’s original suspicion. The judge ruled that Rios-Vargas could not call Villalobos to the stand “only to take the Fifth” before the jury, given that Villalobos’s Fifth Amendment rights were “paramount to the rights of Ms. Rios-Vargas to put on a defense,” and rejected Rios-Vargas’s request to explain to the jury why she didn’t call Villalobos as a witness. The jury convicted Rios-Vargas of burglary.

The Colorado Supreme Court

The first sentence of the Colorado Supreme Court’s opinion is different from the way most appellate opinions in criminal cases begin. It reads, “In this case, there is reason to believe the defendant, Nora Hilda Rios-Vargas, did not commit the burglary with which she was charged.” It proceeded to decide whether the trial judge erred in barring Rios-Vargas from calling and questioning Villalobos.

The court reasoned that “[t]he right to present a defense includes presenting one or more forms of evidence that an alternate suspect committed the crime” and indicated that a century earlier in O’Chiato v. People, 73 Colo. 192 (1923), it had answered “yes” to the question whether a defendant may call a nonparty alternate suspect to the witness stand when that alternate suspect intends to exercise the Fifth Amendment privilege against self-incrimination. In O’Chiato, a defendant charged with statutory rape contended that another man had sex with the victim and sought to cross-examine him as to whether he had. With the jury out of the room, the other man refused to answer the question. The defendant wanted to ask the question before the jury, but the trial judge denied the request. The defendant was convicted, but the conviction was reversed by the Colorado Supreme Court as it explained that the privilege is not violated merely by posing a question that the witness refuses to answer because the privilege does not prevent inquiry; it provides an option to refuse to answer.

O’Chiato was the law in Colorado for 50 years until the Colorado Supreme Court decided People v. Dikeman, 555 P.2d 519 (Colo. 1976), in which, as the Rios-Vargas opinion explained, “we reversed course” and “[w]ith little analysis, and no discussion of the principles of stare decisis, we overruled O’Chiato and held that the general rule prohibiting the prosecution from calling a witness who intends to invoke the Fifth Amendment extends equally to the defense.” In Rios-Vargas, the court returned to the principle set forth in O’Chiato and held “that a defendant is entitled to question a nonparty alternate suspect in the jury’s presence under the circumstances and procedures set forth in this opinion.”

The court set forth these procedures:

First, the trial court must determine whether . . . there is a non-speculative connection between the nonparty alternate suspect and the crime with which the defendant is charged. Second, if the[se] requirements . . . are met, the court must determine whether the alternate suspect has a valid claim of Fifth Amendment privilege at a hearing outside the presence of the jury. Third, if the alternate suspect has a valid claim of privilege, the court should determine the areas of questioning that implicate the Fifth Amendment, exercising discretion to impose reasonable limits on such questioning to avoid unnecessary courtroom drama. The defense then should be permitted to call the nonparty alternate suspect in front of the jury and ask any questions the court has determined do not implicate the Fifth Amendment. When those questions have been asked, defense counsel may ask the questions to which the witness may invoke the privilege. Finally, after the witness testifies, the court should excuse the witness and instruct the jury that a witness has a constitutional right to invoke the Fifth Amendment and refuse to answer questions.

The court concluded that Rios-Vargas was denied a fair opportunity to present a complete defense and reversed her conviction. It opined on the strange position the prosecution found itself in: “According to the prosecution, Villalobos’s guilt was both so obvious that she could not testify and so speculative that the jury should dismiss her involvement in the crime as an imaginative theory concocted by the defense.” The court observed that the jury never got to see Villalobos, and the prosecution took advantage of this fact “by portraying Rios-Vargas’s framing theory as ‘a story without support’; ‘vague’; and the ‘[v]ery definition of imaginary and speculative.’” Thus, the court found that “[t]his case demonstrates the unfairness of a rule prohibiting defendants from calling as a witness an alternate suspect who intends to exercise their Fifth Amendment privilege,” while reiterating its established rule that the prosecution is barred from calling a witness who has indicated an intent to rely on the privilege against self-incrimination.


  1. Rios-Vargas serves as a useful reminder that not all questions put to a witness necessarily call for an answer that could possibly be incriminating, and that generally witnesses must invoke the privilege against self-incrimination in response to specific questions.
  2. The case is unlikely to encourage defendants in most cases to seek to call an alternate suspect to have that person invoke the privilege because a defendant must first establish the “non-speculative connection between the nonparty alternate suspect and the crime with which the defendant is charged.” There is little doubt that Rios-Vargas established the connection with strong evidence—the very evidence that caused Vialpando to suspect Villalobos from the outset.
  3. The unfairness of preventing a defendant who can make the requisite connection from calling the alternate suspect is highlighted when a jury is unable to see and hear the alternate suspect and the prosecution argues that the theory of defense is merely speculative.
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Stephen A. Saltzburg

The George Washington University Law School

Stephen A. Saltzburg is the Wallace and Beverley Woodbury University Professor at The George Washington University Law School and is a former chair of the Criminal Justice Section.