Monday, February 11, 2013

Um, no.

Every great once in awhile, I will run into a prosecutor who doesn't seem to totally understand how the rules of discovery work in a criminal case. Maybe it's because they don't do criminal work as their main focus?? I don't know? Thankfully, these prosecutors are very rare, and I've only run into them maybe 3 times total my whole legal career, but I always come away thinking to myself, "Um, so, no..." 

Here's the basic situation that I'm talking about. Say, for example, I am representing a client who is charged with violating a harassment restraining order. In the discovery that the prosecutor sends to me, I will find the police reports, a copy of the ticket or the complaint, and maybe a CD that contains the audio recordings of the interviews with the involved people. What I will not have is a copy of the actual harassment restraining order. Which is kind of an important thing in a case where supposedly my guy violated that order. 

When we get to court, I'll either move to dismiss for lack of probable cause (because, helloooo, the state has not provided any evidence of an actual harassment restraining order being in existence) or move to compel discovery of the order. It depends on what stage of the proceedings we're in. Keep in mind, by this time, I will have already asked for all the relevant discovery in a letter that was sent to the prosecutor's office. 

The response from the prosecutor will be that the harassment restraining order is available in the court file and that it is available to me so I need to go to the court administrator's office and get a copy for myself and my client. But, that's not the way it's supposed to work. 

See, as the defense attorney, I'm not supposed to go out finding things that hurt my client's case. And if I know of the existence of information that will hurt my client and/or the case, I'm supposed to keep my damn mouth shut--that's that whole "attorney-client privilege" thing. People don't really love that whole idea that a client can tell me, "Hey, I killed like 62 people and I've got all their bodies buried under my front porch!" and I have to take that shit to the grave with me, but that's the way the whole thing works*. So while the order is accessible to me if I went to the court admin office and asked for it, that's the exact opposite of what I should be doing for my client. So, no, I'm not going to go get it. 

I'm the defense. I don't have to prove anything. I can sit on my butt during a trial and do absolutely nothing if I want. That would likely not be the best trial strategy, but technically, I could. You, dear prosecutor, have the burden of proving my client broke the law. In this hypothetical example, that means you have to prove that there was a valid order in existence and the rules of evidence require that you present at trial a certified copy of said order. And the rules of criminal procedure require that if you're planning on using some sort of evidence at trial, you have to disclose it to the defense attorney before trial. Which means, you, as the prosecutor, must get a copy of the order from court admin yourself and you must have your staff make a copy of that order and then you must have it sent to me as the defense attorney.  You are not allowed to just tell me to go get it myself. Well, I suppose you could, but I would then object to that evidence coming in at trial because you failed to properly disclose it, and then you would likely end up losing the trial because you don't have the evidence you need to prove that the order ever existed. 

So, please, don't tell me that I can or should get it myself from court admin or ask me, "What? Do you need me to send you a copy of this?" or something else along those lines. It's really your call, but if you plan on using it against my client, you can't unless you're going to disclose it.  

*Fun fact: if the person told me they had 62 alive people in their basement that they were planning on killing at some point in time, I would then have the option of reporting that to police and breaking attorney-client privilege in order to prevent substantial bodily harm or death to those people, but I'm not required to do so.  It would be my choice if I wanted to tell the police. However, if the people are already dead, then they can't suffer any substantial bodily harm or death, so the damage is already done and I am not allowed to ever say anything to anyone. Crazy, huh? 

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