by
Jill Paperno, author of
Representing the Accused: A Practical Guide to Criminal Defense
Sometimes we’re so busy focusing on getting discovery and subpoenaed documents, we forget about our own discovery obligations. What do we have to give and when do we have to give it? Even experienced defense attorneys are sometimes confused by the rules. Of course, if you’ve got a great statement from a complainant about how they lied about everything, feel free to give it to the prosecutor if you think it will resolve your case. (But if the only thing that will happen is that the prosecutor will threaten and bully the witness, keep it in your pocket until you are required to disclose.)
This topic came up recently in a friend’s trial, when the prosecutor asked defense counsel for the statement defense counsel’s investigator had taken from the complainant. It reminded me of a case I had years ago when the prosecutor asked me for all of the family photos I had collected for use in a sex offense trial.
So what do we have to turn over, when do we have to turn it over, and what do we do when the prosecutor’s request or demand goes beyond what they are entitled to.
First – what do we have to turn over?
Defense discovery, like prosecution discovery, is governed by Article 240 of the Criminal Procedure Law. As with the prosecutor’s discovery obligations, our obligations vary depending on the stage of the proceedings. For felonies, the obligations must be considered from the time of the PH (Preliminary Hearing). The next stage is following a prosecutor’s demand. Then hearings, then trial. For misdemeanors, other than the PH, the stages are the same.
Because you have to turn over statements of witnesses, whether signed or written by your investigator (or you), you must make conscious, strategic decisions about whether you want to take a statement or have your investigator take notes, or instead simply remember what was said. There are pros and cons to each:
Factors favoring preserving witness statements in writing or by some form of recording:
If an investigator has spoken with the witness, and it was a while ago, the investigator may forget inconsistencies that arise in court proceedings;
A witness may be better able to deny a prior statement that was not preserved;
An investigator may appear less professional when testifying if there are no notes about the witness’s statement;
If the witness is frail, or a child, you may want to “show how it’s done” to the jury and demonstrate that your questions didn’t confuse the witness or trick them in some way (in contrast to those prosecutor witnesses) as you record and ask non-leading questions if the video becomes necessary at trial. I’ve done this in sex offense cases, first vetting the questions with a mental health professional, and making sure my tone, body language and questions, as well as the setting and circumstances of the child, are all appropriate.
On the other hand:
The greatest concern defense counsel have in preserving statements of witnesses, especially favorable ones, is that we are creating prior inconsistencies that can be used against them at a later date. We revel in the opportunity to cross on prior statements and testimony of opposing witnesses. Why give the prosecutor that tool? Even those who tell the truth are likely to say something different on a later date.
The greatest concern defense counsel have in preserving statements of witnesses, especially favorable ones, is that we are creating prior inconsistencies that can be used against them at a later date. We revel in the opportunity to cross on prior statements and testimony of opposing witnesses. Why give the prosecutor that tool? Even those who tell the truth are likely to say something different on a later date.
Once a statement has been preserved, you have to keep it and turn it over. If a defense witness’s version becomes more favorable over time, and you put the witness on, you still have to turn over the more damaging version, which will be used by the prosecutor to undermine your witness’s version;
If the witness testifies early in the case (less common), the prosecutor may learn of your defense or key strategy and you can lose the element of surprise. For example, if an investigator who took witness statements testifies at a hearing about measurements, you may have to turn it over. (Although the statute limits disclosure to material “which relates to the subject matter of the witness’s testimony” don’t bank on winning the argument that the notes of the witness statements don’t relate. Some judges allow prosecutors to avoid turning over certain documents at hearings on this ground, but I’m not usually feeling that lucky.)
My general rule of thumb is to get written notes or statements from prosecution witnesses, since it’s not likely those notes will damage my case, to take statements from favorable witnesses who may become unfavorable in the future – on-again-off-again girlfriends or boyfriends, for example, and no statements from solid, favorable witnesses. ( I may jot some things down in trial preparation as work product.). If I do take notes during a witness interview, I use abbreviations and my sloppiest handwriting – which is pretty sloppy. I have to turn it over but I don’t have to interpret it. Sometimes during witness preparation I just write down the questions I will ask the witness, based on our discussion. I let them know that’s what I’m doing so if asked, they’ll know I wasn’t taking notes.
Remember – your experts’ raw notes are also subject to discovery. Let them know this when you first meet so they don’t make stupid doodles or inappropriate comments on their notes.
You must also remember your clients’ statements are protected by privilege(as long as you didn’t meet with third parties during your conversations) or whether your information is work product. Neither has to be disclosed but the records or notes must meet certain criteria to qualify and thus be exempt from disclosure.
So what has to be turned over at a hearing? And when?
First take a look at 240.44 –
ยง 240.44 Discovery; upon pre-trial hearing.
Subject to a protective order, at a pre-trial hearing held in a criminal court at which a witness is called to testify, each party, at the conclusion of the direct examination of each of its witnesses, shall, upon request of the other party, make available to that party to the extent not previously disclosed: (emphasis added)
As you can see, the statute says you don’t have to turn it over unless requested by the prosecutor, and until the conclusion of your direct. But the same rule applies to the prosecutor. Do you wait? Do you fail to turn it over unless requested? This depends, I think, on where you practice, how your opponents operate, and what kind of reputation you want to develop. Where I practice, it is expected that counsel will provide prior statements of the witness (also referred to as Rosario material, see People v. Rosario) without request. Failure to do so would be perceived as sharp practice, and if you’re caught – say you don’t turn it over, the judge asks if Rosario has been provided and you say, “No, but they didn’t ask”, you will develop a reputation for being sneaky even though you were technically correct. And wait to see what happens the first time you forget to ask. And you will.
As for timing, the prosecutors where I practice uniformly provide Rosario before the hearing so you don’t have to waste time in the middle of the hearing recessing to read it. If I know I am calling witnesses, I provide mine at the beginning of a hearing unless there is a strategic reason to wait – like the prosecutor may show the notes to a witness who might tailor their testimony. If I don’t know if I’m calling a witness I wait till just before my direct. (I will forget right after cross and the judge will get irritated – to me, it’s just not worth it.)
So what has to be provided at the hearing? CPL 240.44:
1. Any written or recorded statement, including any testimony before a grand jury, made by such witness other than the defendant which relates to the subject matter of the witness’s testimony.
2. A record of a judgment of conviction of such witness other than the defendant if the record of conviction is known by the prosecutor or defendant, as the case may be, to exist.
3. The existence of any pending criminal action against such witness other than the defendant if the pending criminal action is known by the prosecutor or defendant, as the case may be, to exist.
Some prosecutors claim they don’t know of prior convictions or pending actions in an effort to avoid having to turn material over. So get that information yourself, feign ignorance, and make it bite them in the tuchus. But don’t put yourself in that position – is it really worth not knowing about your witness’s priors, when the prosecutor will certainly learn of them, and you will not have had the chance to voir dire on them, or question on direct, or even decide not to use the witness?
The Discovery Demand
After arraignment on a misdemeanor accusatory instrument, or an indictment, defense counsel may (and if you ask me, must) file a discovery demand. And so can the prosecutor.
On a felony, there is no right to file a demand for discovery until after indictment. CPL 240.30(1) does not authorize discovery on a felony complaint. Thus, there is no right to statutory discovery while the felony case is in local court, unless there is a hearing as discussed above.
The CPL requires the defense to turn over discovery pursuant to a demand as set forth in CPL 240.30. CPL 240.80 sets forth the period in which a demand must be made. If you do not wish to comply, that statute sets forth provisions for opposing the demand. Otherwise you must comply within 15 days.
What must be turned over? CPL 240.30 answers that question.
(a) any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test, experiment, or comparisons, made by or at the request or direction of, the defendant, if the defendant intends to introduce such report or document at trial, or if the defendant has filed a notice of intent to proffer psychiatric evidence and such report or document relates thereto, or if such report or document was made by a person, other than defendant, whom defendant intends to call as a witness at trial; and
(b) any photograph, drawing, tape or other electronic recording which the defendant intends to introduce at trial.
As you can see, discovery obligations are fairly limited with important caveats. Subdivision (a) only requires disclosure if the defense intends to offer the records at trial, if there will be a CPL 250.10 psychiatric defense, or if the report was prepared by someone you will be calling at trial. Often we explore psychiatric defenses but elect not to use them. THOSE RECORDS DO NOT GET TURNED OVER. Additionally, if you do not know if you are calling a witness at trial, do not turn over the records until you are sure.
As for subdivision (b), if you know you are using these items at trial, by all means turn them over. But if your use depends on what happens during the prosecution case, then you do not have to.
For pre-trial hearings, go back to CPL 240.44. For trial you must comply with the discovery requirements of CPL 240.45(2), which does not require disclosure until the conclusion of the prosecutor’s direct case. That statute is similar to the hearing statute.
So what do you do when the prosecutor asks for all of your photos, and you do not intend to offer them? Just say no. We all want to be liked, so it might be hard to say no. Maybe easier if you’re a parent. But you don’t want to give the prosecutor anything that you don’t have to, especially if it might hurt your case. You can say “no” with a smile if you like, but they still may not like you. What if the DA asks the judge to order you? In my case, the judge looked at me and asked if I was going to give the prosecutor the photos. I said I wasn’t using them (I”d already turned over the ones I was using) and said no. The judge looked at the prosecutor. The prosecutor requested he order me to turn them over, and the judge said no.
Similarly, the attorney in the recent trial, when the prosecutor asked for the complainant’s statement recanting, as given to her investigator, she politely declined. (Never turn that over at trial if you are not legally required to – they had their chance to do the right thing.) And the judge did not order her to provide it.
