New Year 2020 is upon us, and we all know what that means: [chiller typeface] the new discovery laws take effect!
“Discovery” is legal jargon for letting the accused know who’s accusing him-or-her of what. It means, if you remember My Cousin Vinnie, that the prosecution tells the accused who the witnesses against him are. Which enabled Vinnie to find out, in time to demonstrate to the jury, that the main eyewitness was as vision-impaired as a bat.
How fortunate that Attorney Vinnie was defending his innocent cousins in one of those backward Southern states. Because if he’d been in New York, the discovery laws would have allowed the prosecutor to withhold the witnesses’ names until the morning of trial.
That’s supposed to change as of January 1, 2020. Under the new law, the prosecution will have to cough up pronto the names and “adequate contact information” for its witnesses. Meaning anyone with relevant information, not just the ones they decide to call at trial.
The prosecutorial howling that’s going up! Or, as our progressive female-pronouned head of the criminal practice put it – the hysteria!
Here are the nightmares envisioned by the DA’s:
Prosecutor Nightmare #1:
Cop #1: Look, there’s a perp beating up a vulnerable person!
Cop #2: Leave him alone, Paddy. Under the new discovery laws, if we arrest him, our names and work affiliation will be disclosed to the defense lawyer.
Cop #1: Heavens to Betsy! We’d better not make any more arrests!
(Civilization descends into chaos).
Prosecutor Nightmare #2:
Prosecutor: (to supervisor) The suspect was caught pickpocketing in Yankee Stadium during the final game of the World Series.
Supervisor: Well, you’d better get busy, because the new law requires you to interview everybody who was there that night.
(DA’s Office collapses due to drain on its scarce resources).
Prosecutor Nightmare #3:
Defense lawyer: (to client) You’ve been charged with selling umbrellas in Times Square without a license.
Client: I was merely standing around with a shopping cart full of umbrellas. It just happened to be raining.
Defense lawyer: Not to worry. Thanks to the new discovery laws, I have your accuser’s adequate contact information. He’ll wake up tomorrow morning with a horse’s head in his bed.
(Civilization descends into chaos as nobody dares report a crime).
Besides threatening to get protective orders for every witness, the DA’s offices have come up with a device called WITCOM. When a defense attorney is assigned to a case, the prosecutor requires her to register by sending her name, contact information, a “description of the issue” and “any applicable screenshots.” The attorney is then allowed to contact witnesses on her cell phone after being “assigned a proxy number so witnesses will not see your real number and you will not see theirs.”
The WITCOM website provides a sample of how it’s supposed to work:
Defense attorney: (texting) Hello, I’d like to talk to you about a case you’re a witness on. When would be a good time for us to talk?
Witness: Tomorrow at noon would be good.
Defense attorney: Okay, I’ll call you then, thanks.
Of course it’s not going to work like that. More likely:
Defense attorney: Hello, [etc.]
Witness: Who the hell are you?
Defense attorney: I’m the attorney for Joe Shmo. You know, the guy you identified from that unnecessarily suggestive lineup whose face is forever imprinted, etched and chiseled into your memory.
Witness: What kind of lawyer makes anonymous phone calls? I never heard anything so fishy in my life. Take a hike.
We went through that Chicken Little routine several years ago when Texas adopted the most sweeping discovery reforms in America. The prosecutors’ lobby has yet to experience its predicted wave of witness tampering, nor have they been rendered bankrupt by all the required “copying” — perhaps because virtually all discovery can be transferred electronically.
There will be problems, mostly because of cops failing to be diligent in turning things over to ADAs and judges forgiving failure. Bigger problem is the guy who wants to cop a quick ACD or CD plea and not go back to court, miss a day of work, but can’t because he hasn’t gotten discovery yet.
Or the deft retains private counsel, who then can’t get the PD to send it over or return the phone call, and the ADA refuses to send it a second time saying “that’s your problem, pal.”
The reform was desperately needed, but whether this Rube Goldberg solution is structurally workable remains to be seen.
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The DA’s in their wisdom and foresight have created a “waiver of discovery” form to be offered at arraignment, presumably to cover that scenario. But informed sources, i.e., people we met at a New Year’s party, say the DA’s are automatically seeking protective orders in every case!
A few notes:
●How much do the prosecutors learn about defense’s communications? Site seems cagey.
●Witcom.io’s FAQ saith:
Are my messages saved in a WitCom database?
Answer: Like text messages, your WitCom messages are only stored locally on your device and not in any WitCom database.
But my students tell me that TMs are stored on your SIM card and by the phone co. (According to TechWalla, they can be stored on a SIM but in smartphones they tend to be stored in device memory or on a memory card instead.) Who ya gonna believe?
●Witcom.io’s FAQ warns that if you change your device you lose all records of the TMs. But there are several ways to send and receive TMs on your computer, which might allow you to get around that:
(Other carriers have similar systems)
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