MacLeod was accused of sexually assaulting his daughter multiple times. Only two counts, sexual assault on a child and sexual assault on a child by one in a position of trust, went to the jury, and he was found not guilty of both charges.
The prosecution appealed a rape shield law ruling made in the case which had been affirmed by the Colorado Court of Appeals.
The general rule in criminal law in the United States is that the prosecution cannot appeal a not guilty verdict.
But, in Colorado:
The prosecution may appeal any decision of a court in a criminal case upon any question of law. . . Nothing in this section shall authorize placing the defendant in jeopardy a second time for the same offense.
According to the 1963 Colorado Supreme Court case Krutka v. Spinuzzi, this allows the prosecution to appeal an acquittal in a felony case for the purpose of obtaining a decision on the correctness of a ruling made by the trial court, but not the for purpose of affecting the verdict in any way.
I can understand why the prosecution would engage in such an appeal. Prosectutors are repeat players in the criminal justice system, and establishing a precedent for future cases is as important to their overall effectiveness as winning individual cases, which is always a crapshoot even if the law is perfectly applied by the judge.
I have less of a sense of how the defense of an appeal like this one is handled. While a public defender has a strong incentive to defend an appeal like this one, I don't see why a criminal defendant with a private attorney would ever pay anyone to handle this kind of appeal because the outcome won't matter to the criminal defendant if I understand it correctly. How these claims are defended obviously matters to the quality of the rulings that arise in these cases. I don't think that state courts are subject to the same constitutional prohibition that federal courts are on issuing declaratory judgments in the absence of a genuine case or controversy It isn't at all obvious to me that this kind of ruling would be constitutional in federal court where the U.S. Constitution Article III case or controversy requirement applies.
Input from folks more learned than I on how this works would be welcome. It is possible, I suppose, that the prosecution might in the future be in a position to bring different count involving different incidents than those prosecuted in the instant case against the same person and thereby not violate double jeopardy limitations. Or, perhaps counsel is appointed to represent the defendant in such cases.
This part of the procedural stance isn't discussed in the ruling at all beyond the matters I quote, so far as I can tell, and I had to resort to the court of appeals ruling in the same case to figure out as much as I do in this point. The merits of the rape shield ruling (most notably, that rape shield testimony is never allowed in a pre-trial hearing even when the law allows it to be presented at trial under exceptions to the general rule) is interesting as well, but beyond the scope of this post.