# Ruling affects cross-examination info



## policelaborlaw.com (Mar 7, 2006)

*Ruling affects cross-examination info*

SJC disclosure decision a blow to defendants

*By Pam Belluck THE NEW YORK TIMES
**BOSTON- *It is the stuff that courtroom dramas are made of: the gotcha moment when a lawyer confronts a witness on the stand with evidence that the witness is lying.

Maybe the lawyer discovered the witness had been out of town the day he supposedly saw the crime or learned that the witness had told different stories.

"I do it in almost every case," said James L. Sultan, who has represented several high-profile defendants in Boston. "That's what we do as criminal defense lawyers." http://adx.telegram.com/apps/adx.dl...1/COLUMNIST/3878/;URL=http://www.thesole.com/ 

Now, Massachusetts lawyers are likely to have far fewer of those moments, after a ruling by the state's highest court.

The ruling, which split the Massachusetts Supreme Judicial Court 4-3, said that judges in criminal trials can compel defense lawyers to give the prosecution evidence they plan to use to cross-examine prosecution witnesses.

That makes Massachusetts one of three states with such a rule, experts said. The others are New Jersey and Minnesota, although courts in some states, including New York, have ordered the defense to produce such information, Sultan said.

Federal courts and most state courts do not require defense lawyers to tell prosecutors about information that could impeach the credibility of a prosecution witness.

"It's very unusual," said Myrna Raeder, a professor at Southwestern University Law School in Los Angeles.

Legal experts say the decision is striking because Massachusetts is considered a judicial trend-setter and is perceived as liberal.

"Most people view Massachusetts as being one of those states that has always been very concerned about the rights of criminal defendants," Raeder said.

"That's why this case is interesting, because it seems to go to a different direction," she said. "How in the world are you going to be able to raise reasonable doubt unless you can impeach prosecution witnesses in a manner that they will clearly be surprised as opposed to being able to put together a plausible story?"

But some defense lawyers in New Jersey and Minnesota said mandatory disclosures could lead to more pleas and dismissal before trial. "Trust me, I was taken aback that we had to tender that information to the prosecution," said William M. Ward, chief public defender of the 10th Judicial District of Minnesota, who previously worked in Illinois, where no such requirement existed. "But by having this open-book policy, it helps resolve cases. We've had more dismissals."

Still, some Massachusetts lawyers say the ruling will have a crushing effect on their cases. Peter Krupp, a defense lawyer, said that before the court issued its ruling on March 14, when cross-examining a witness "you could have in your back pocket 27 things that show that X isn't quite X, and Y isn't quite Y, and Z is outright false."

With the new rule, "a lying witness will become a better liar," Krupp said.

The court's decision, written by Justice John M. Greaney, was based on the concept of reciprocal discovery, which requires both sides to turn over information so that neither side is ambushed at trial. Discovery is common in civil trials, but in criminal trials there are different rules.

Greaney said that Massachusetts, like most states, required prosecutors to give the defense investigation results. He said that even though the government usually had more resources to conduct investigations, the judicial process was fairer if the defense also shared its results.

"Criminal trials," Greaney wrote, "are matters of justice and not sporting events in which the side that has the strongest advocate (employing advantages to which he or she is not entitled) gains the upper hand."

The court's ruling concerned a motion in a murder case in which the defendant, Patrick John Durham, pleaded guilty to manslaughter before trial, so the ruling has no impact on that case.

Chief Justice Margaret H. Marshall, in one of two dissents, said the ruling would have a broad impact, citing the importance of cross-examination to a defendant's constitutional right to confront an accuser.

"The effectiveness of cross-examination often depends on being able to surprise a witness, particularly an accusing witness, with evidence that contradicts or is inconsistent with his trial testimony," Marshall wrote, adding, "It permits the jury to assess for themselves the reliability of a witness's memory, or whether an accuser is truthful."

Robert P. Mosteller, a law professor at Duke University, said the trend has moved from little discovery to more disclosure from prosecutors, to requiring defense lawyers to reciprocate with some types of evidence.

Many states, for example, now require defense lawyers to tell prosecutors if they are planning an insanity or alibi defense and to share information about expert witnesses.

Politically liberal states often lead these trends, Mosteller said, because they champion open exchanges of information, even if it shrinks defendants' options.

"In many situations the only way discovery is going to expand very much is that it's going to cost the defense something," Mosteller said. "The question is, does it cost too much?"

Prosecutors and defense lawyers in Minnesota and New Jersey say it does not. John C. Eastlack, a defense lawyer in New Jersey, said he would advise the Massachusetts lawyers to "calm down, take a deep breath." Eastlack said he had tried many cases in federal court, where he does not have to disclose cross-examination evidence and where he receives limited discovery from the government. He said he preferred the two-way information sharing of the New Jersey system.

"Sometimes it can lead to a plea that more comports with justice," he said, instead of a defendant "perhaps getting hammered in a way they shouldn't or being able to walk out the door when they shouldn't because the prosecutor was surprised by something."

Eastlack and Ward both said the rule affected their strategies, especially whether to have their investigators interview prosecution witnesses before trial.

Such interviews must be given to prosecutors, so deciding not to interview a witness, and therefore having nothing to give prosecutors, may preserve the element of surprise. But it may also prevent the defense from learning critical information.

Robert M.A. Johnson, the district attorney for Anoka County in Minnesota, said that in 10 percent to 20 percent of cases, "we would get something from the defense counsel which would say your impression on the case is not correct, and sometimes that leads us to dismiss the case."

In Massachusetts, Martha Coakley, the Middlesex district attorney, said she expected a similar effect and dismissed defense lawyers' concerns. "If they really believe that their case turns on being able to surprise a witness, I think their case rests on fairly thin threads to begin with," Coakley said.

In addition, she said, "if a witness is surprised" with unexpected defense evidence, "what if it's wrong? The defendant gets an unfair advantage."

Sultan said he was hoping to challenge the decision in the U.S. Supreme Court, although the court does not usually agree to hear cases if the underlying criminal trial has been resolved, as Durham's has.

"The way to find out whether a witness is lying is to basically confront that witness," Sultan said. "Does the witness squirm, does the witness sweat, does the witness not have a ready answer? It's that moment that's at the heart of the trial."


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## cr2649 (Jun 29, 2004)

What a shocker that Marshall was one of the dissenting opinions.


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