[A version of this article
about discovery in criminal cases in New York City was
published in the Queens County Bar Association Journal in March, 2002.]
A common question from those accused of
crimes in New York City is "Where is my paperwork" and it
certainly is a legitimate one. In the investigation of crimes in
New York the police complete numerous forms that relate to a case.
Many of these forms contain information crucial to an understanding of
the case against a person accused of a crime. In addition,
witnesses testify before the Grand Jury in many cases, and their
testimony is of vital interest, naturally, to anyone who has been
accused of wrongdoing by these witnesses.
The natural assumption of most people who
are unconnected to the legal world is that of course a person accused of
a crime and facing prison would be entitled to know what people have
said about him and would be entitled to know what is the nature of the
evidence against him. Indeed most people assume that such is the
case along with the generally accepted principle that "defendants
have all the rights".
And anyone who has ever been involved in
a civil lawsuit has this notion reconfirmed because of the incredible
level of discovery that takes place in civil lawsuits over money.
In civil lawsuits over money, the parties are entitled to virtually
every form of discovery imaginable, and well in advance of trial.
Parties in civil lawsuits over money are entitled to take depositions of
all witnesses and ask them as many questions as they like without
interference so that the nature of their testimony is known well in
advance of making the decision of whether or not to go to trial.
Parties in civil lawsuits over money are entitled to discovery of all
reports, documents, and other papers, without question, well in advance
of a trial. Parties in civil lawsuits over money are entitled even
to request that opposing parties make admissions as to specific facts or
respond to detailed written questions well before trial.
All of this discovery is available to you
in New York, just as long as your lawsuit involves a dispute over MONEY.
On the other hand, in New York State, if
the stakes are not MONEY, but instead the FREEDOM OF A HUMAN BEING, the
story is not only different, but APPALLINGLY WORSE.
One might reasonably conclude that our
society values freedom more than money, but that theory is certainly not
supported by New York's rules about discovery in criminal cases.
In criminal cases in New York, it is
considered acceptable and legal to withhold from a defendant most of the
most critical and relevant police reports, prior testimony, and other
evidence until the very moment of trial (and sometimes literally in the
middle of trial).
A felony trial of mine, for example,
was a complex and bizarre Kidnapping, Robbery, and Burglary case in
which my client was facing a minimum of 5 and a maximum (far more likely
if convicted) of 25 years in prison. Despite what amounted to
repeated begging for some of the discovery before trial, I did not
receive anything of significance until the morning of the day I had to
begin selecting a jury. On the morning of the day I was expected
to begin selecting a jury, I received from the Assistant District
Attorney a stack of paperwork that included about 50 pages of police
reports and about 100 pages or more of testimony from a variety of
witnesses who testified before the Grand Jury. This was not only
considered appropriate by the law, but actually represented,
technically, a gift. Believe it or not, because this case was
"only" about whether or not a human being would spend the next
20 years in prison instead of something far more important to New
York State like MONEY, the materials were presented to me actually
slightly EARLIER than the law required.
That meant that I had to absorb 50 pages
of police reports, and 100 pages of Grand Jury testimony, and
incorporate all of it into some sensible cross-examinations ON THE FLY
as the trial progressed. Needless to say I didn't get much sleep
during the course of the trial.
Fortunately, we were nevertheless
successful at trial despite the handicap permitted and approved of by
the State of New York.
Other states do not attempt to cripple
the ability of criminally accused to defend themselves. The State
of Florida, for example, a state not exactly known for its liberal
approach to crime (judging from the frequency of its executions) has an
almost civil law like approach to discovery. In Florida, witnesses
must be made available for depositions in most cases. Police
reports are provided early on in Florida. Florida apparently
recognizes what New York seems not to recognize -- that the reasons that
justify significant discovery in cases about MONEY ought apply to cases
about FREEDOM.
Therefore, if you are charged with a
crime in New York and are wondering why your lawyer doesn't have any of
the police reports or prior testimony of witnesses against you, don't
blame your lawyer. Take it up with the New York State Legislature
that apparently places a higher value on money than human freedom.
