Wednesday, November 5, 2014

When the Secret is Out

Next week I begin a trial that I finished last month. Why is that? The court severed the two defendants and required they be tried separately because they each made statements that implicate the other one. It's what we call a Bruton issue.

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?


  1. This is tough one. On one hand a defendant has a right to a fair and public trial, on the other hand a victim is entitled to justice. How can you preserve the liberty of a defendant and also seek out justice for a victim? I don't know if they can be mutually exclusive, but at the same time it's a difficult task to reconcile the two.

  2. I'm a prosecutor in Florida, where FL Rules of Crim Pro permit the defense to take depositions of virtually all State witnesses except those who performed a ministerial function, e.g., transport officers. In practice, I've found that the pros typically outweigh the cons. Of course, depos are expensive for the state, often result in delaying trial, can be tedious (such as a depo of the analyst who tested a narcotic), frequently creates impeachable material, and is sometimes used to intimidate or harrass a witness. On the plus side, it gives me a chance to evaluate how the witness will perform at trial, find out if a wish-washy witness is actually going to show up and cooperate, and figure out the defense's strategy. In cases with sensitive victims, we use the depo as a tool to close a case more expediently by offering a more lenient plea on the condition that the offer will be off the table should the defense depose that witness. And importantly, once the defense engages in the discovery process, the State is then entitled to depose all of the defense witnesses, which is extraordinarily useful for obvious reasons.

  3. Hi! Im a 3L at a NYC school, and I am currently going through the application process to be an ADA. Can you tell me where I could get more information about this movement to require disclosure of pedigree information? I have to turn in a writing sample for one of the offices on a current legal issue, and this seems like a very interesting one to talk about! Thank you!

    1. Check out an article like this and google many more out there on discovery reform.