 |
| (image courtesy floridainnocence.org) |
THE SCARY TRUTH --What you're NOT entitled to from the government...until AFTER THE JURY HAS BEEN SWORN IN
Hopefully, I've gotten your attention. When I began practicing in Ithaca, New York after coming here from Massachusetts, I experienced a rude awakening when I began defending criminal cases. There's a lot of things that the prosecutor does NOT have to give the defense attorney (or the Defendant) while they're prosecuting you...
The process of getting information from the prosecutor is called "discovery." This is an on-going process during a criminal case, but it requires that the defense attorney give a request for information called a "DEMAND TO PRODUCE" within 45 days of the arraignment. However, the prosecutor is only obligated to give over information that falls under a specific set of guidelines: Criminal Procedure Law, Article 240.
This does NOT include a police report (or the officer's notes/observations)!
This begs the question: How can a defense lawyer cross-examine a police officer at trial (or a pre-trial hearing) if they HAVE NOT seen the police report???
Well, there is a case (and line of cases that follow it) that governs this process.
In People v. Rosario, 9 NY.2d 286 (1961), the Court of Appeals made a rule that forces prosecutors to hand over material to cross-examine government witnesses...
It was later put into CPL s. 240:
"After the jury has been sworn and before the prosecutor's opening address...the prosecutor shall, subject to a protective order, make available to the defendant:
(a) Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to CPL s.190.32, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony.
*THAT'S VERY LATE IN THE PROCESS TO DISCOVER ANYTHING TO AVOID A TRIAL
**And while the defense attorney can request time to review the newly given material, it is so late that it could change the entire defense theory of the case. That's not good.
WHAT DOES THIS MEAN?
It means that in NY, the defendant is at a very powerful disadvantage from the moment they are charged with a crime. The prosecutor has the legal right to withhold valuable, relevant information about the case they're preparing against you up until the jury has been sworn in...
OK...HOW DO WE FIGHT THIS INJUSTICE?There are a couple ways:
1) Make sure your discovery demand at the start of the case is very specific.
2) Make motions for Brady material (exculpatory evidence) that are specific
3) Sometimes you can negotiate more discovery from the prosecutor (need leverage)
4) Request pre-trial Rosario material for a suppression hearing (this is a great way to fix problem)
--SUMMARY THOUGHTS---
In my opinion, the New York justice system is inherently unfair. The government should be obligated to give over everything they have against a defendant at the BEGINNING of a criminal case (like Massachusetts and many other states in the USA). However, life isn't fair, so we must do our best to continue fighting the good fight to make sure everybody gets the closest thing to a fair shake as they can...
P: 607-229-5184
BY: Attorney Mike Cyr
P: 607-229-5184
E: mike.ithacadwi@gmail.com
Twitter: @ithacadwi
