While the platitudes have always shown a fondness for the criminal justice system, such as “it’s better that 100 guilty men go free than 1 innocent man is convicted,” the sad truth is that the criminal justice system is the ugly stepchild of the legal system.  This week, we will explore some of the differences.

It comes as a shock to criminal defendants to learn that there is essentially no such thing as discovery in criminal cases.  In New York, there are two discovery mechanisms available to the defense, a “bill of particulars” and a laundry list of pedestrian items for “discovery and inspection” set forth in Criminal Procedure Law  240.20.  The former is routinely ignored, with a response that essentially states that all information the prosecution is required to disclose is already contained in the accusatory instrument.  The latter is simply a joke, with so little information that it makes a Spartan blush.

Compare this with civil litigation.  There are depositions (also known as Examinations Before Trial, or EBTs), which are oral examinations under oath.  The lawyer from one side gets to ask the parties and witnesses of the other questions, and they are obligated to answer.  These can last for hours, days or more.  Depositions in criminal cases?  Nada in New York.

Then there are interrogatories, which are the written form of depositions, to be responded to in writing and under oath.  There there are document demands, where a party demands every document ever produced from the other side.  This is done in advance of depositions, so that the documents become the subject of questioning, as well as the absence of documents which then becomes the subject of additional demands and lots of arguing. 

In civil proceedings, the scope of  CPLR Article 31 discovery is breathtaking.  It covers everything that can in any way be argued might either be “material and necessary” to a cause of action or defense, or anything that might conceivably lead to something that would be material.  Short of the waistband of your Jockeys, everything is fair game.  Civil lawyers litigate for years over discovery issues, and argue how the world will stop turning if they don’t get a copy of little Johnny’s orthodontics records. 

In criminal law, you get squat.  You learn nothing about the evidence against your client, or what the witnesses will say.  You get the most cursory details of the allegations, and too often the flip answer from prosecutors that if you want to know what happened during the alleged crime, “just ask your client.”  This response is one of the key ways of knowing that your prosecutor is particularly unlikeable person.

Whereas a civil trial is structured for the purpose of having no secrets, criminal defense lawyers go into trial blind.  Our clients ask us, and rightfully so, what’s going to happen.  What will the witnesses say.  What if they lie?  How can we put together evidence to show that a witness is lying when you have no idea what a witness will say on the stand?  The best answer is that we try desperately to anticipate, and prepare based upon anticipation.  Because we just don’t know what will happen.

One of my running jokes is that the worst thing that can happen at trial is for the cops to tell the truth.  We’re never prepared for that. 

There are always a series of reforms in the works to improve criminal discovery.  The reason they are always in the works is that they never resolve the problem.  There is a force at work that seeks to intentionally deny the defense a fair fight, a level playing field. 

One of my personal favorite responses to specific discovery demands comes from my good buddies at the United States Attorneys Office for the Southern District of New York.  Before I tell you, bear in mind that federal discovery is a little different than state, with  Rule 16 governing and barely a pretense of a bill of particulars.  When you specifically ask for a piece of factual information that would give you half a chance of understanding why they’ve indicted your client, the answer is “that it would unduly prejudice the government to disclose the information sought by the defense.” 

Now think about that; By disclosing the allegations of fact the government believes to be true, they would be prejudiced.  How are you prejudiced by the truth?  There’s only one way, it would make it a fairer fight.  Anything that would give the defense a fair chance to address the charges would prejudice the government’s right to convict.  Try that in a civil proceeding, and the same judge would hand you your butt. 

But ultimately we do get the bulk of discovery in criminal proceedings, right?  Well, sorta.  In state court it’s called “Rosario” material (from People v. Rosario, 9 NY2d 286 [1961]), and in federal court it’s called “3500” or “Jencks Act” material.  It’s a dump of paper at the very last second, usual after the jury’s been sworn, but sometimes not until the witness has completed his direct testimony. 

This material consists of prior written statements of witnesses.  It doesn’t consist of prior statements of anyone who is not called as a witness, like people who saw something different or disagreed with the cops assessment.  While some may scream ‘Brady”, that’s just a figment of your imagination.  Brady material, or evidence that tends to show that the defendant did not commit the crime, is whatever a prosecutor decides it is, and if he thinks no one will ever know it exists, chances are that you’ll never see it.

In other words, you’re in the midst of trial with about a million things to do, your attention supposedly focused on the trial itself and that’s when they dump all the paper on you.  Accident?  Not likely.  Is there something in there that requires investigation?  Too bad.  Too late.  Proceed, counselor.

Why this disparity between discovery in criminal proceedings versus civil?  It’s about whose money is at risk versus whose life is at risk.  The power behind the respective interests has given us a shockingly different approach, and it is clear that criminal defendants have no champions when its comes to fairness.  Sure, we win when it comes to platitudes, but we’re not even in the game when it comes to reality. 

Why is the discovery system structured for complete discovery in civil cases, but designed to sandbag the defense in criminal cases?  Because our legal system values the money to be won or lost higher than it does the lives of the human beings.