This basically means that when one defendant makes a statement to the police implicating the co-defendant, the defendant who did not make the statement has the right to sever his trial from the confessing co-defendant. The reason is that the defendant who did not make the statement cannot cross-examine the defendant who made the statement to test its veracity in front of the jury. This violates the Confrontation Clause of the Sixth Amendment.
In my case, both defendants made statements and moved to sever from each other. We tried the main actor in the first trial and now try one of his conspirators. This second trial is more of a legal argument than a factual one. The ultimate question is whether the jury can find a person guilty in a shooting if they were not the one to pull the trigger. It is a question of accomplice liability.
Under New York State discovery rules, the prosecutor is not required to disclose witness statements until just prior to opening statements. In most cases of this violence, we follow these rules to eliminate the issue of witness intimidation. Obviously, this puts the defendant and defense attorney in a difficult situation when discussing strategy prior to trial.
The second defendant to be tried next week has ordered all the transcripts from the first trial. That means there will be no surprises in this case. The attorney, with his client, will have ample amount of time to prepare for the witness' testimony and will even know our arguments well in advance to be able to prepare for them. This trial will be more like a civil trial where all discovery is done well in advance of trial.
There is a movement across the country and specifically in New York State to require disclosure of witness pedigree information and statements months ahead of trial. Where you fall on this issue usually depends on which side of the criminal justice system you have been on. As prosecutors, we routinely see our witnesses approached, threatened, bribed, and tricked when their name leaks prior to trial. How many times does a victim need to be victimized? Why should we risk the identity of people when they are actually willing to come forward? And it is only getting worse. Defense attorneys and defendants want the ability to investigate a case fully and speak with all the witnesses, and demand that fairness dictates early disclosure of statements.
I have seen the threats that occur with early disclosure, but see the merit in the defense attorney's argument. Should there be early disclosure even if it leads to further harm to a victim or a witness? Does a defendant have a right to early discovery?