It’s not at all surprising that some district attorneys’ offices in New York City have found a way around the law, and that their solution is to use an outside party to do their work. This has become the method of convenience for a while, whether for the turnover of discovery, videos, and now witness information.
Now that New York has adopted the radical notion that an accused should know something about the accusations before the morning of trial, prosecutors have been scrambling to get around the new discovery laws. One of which is that the defense is entitled to “adequate contact information” for the People’s witnesses.
Taking a tip from the MTA, which invites you to “download the free app” to find out there are no trains for the rest of the night, the DA’s have concocted an app called WitCom, a portal that defense lawyers are “required” to use if they want to talk to prosecution witnesses.
Did they call it WitCom because it is meant to facilitate witness communication or because only the witless would blindly agree to use it?
The defendant is charged with Attempted Murder in the Second Degree and other related
charges. Pursuant to CPL § 245.20[I][cJ, entitled “Automatic discovery,” defense counsel is
entitled to “[tJhe names and adequate contact information for all persons other than law
enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense.” In place of providing actual phone numbers, the People offered the use of the WitCom system as to two of their witnesses. Yes, there is an app for that!
The purpose of this disclosure is to enable the defense to investigate witnesses. There are provisions to protect witnesses upon application of the prosecution for good cause shown, but other than that, the defense gets to know who the witnesses are and how to reach them. It is not, as hysterics argue, so that defendants can threaten or harm witnesses, although it’s not an impossibility. But few defense lawyers want any harm to come to anyone, witnesses included, and aren’t too keen on their clients having additional charges added to their superseding indictment for doing something stupid and dangerous to a witness.
Regardless, there is the new discovery law.
WitCom is an app available for smartphones developed by Lex Loci Labs. According to
the company website, “WitCom facilitates communication between defense … attorneys and
witnesses without revealing either party’s contact information.
Once a prosecutor registers their witnesses in the WitCom system, a link is sent to the witness’ cell phone introducing them to WitCom and providing a virtual phone number for assigned defense counsel which the witness can then add to their phone’s contacts. Defense counsel, in tum is required to download the WitCom app. Once registered with the app, WitCom serves as a portal, which allows counsel to view the names of witnesses that pertain to a relevant case without revealing the witness contact information. Defense counsel may then text or call the witnesses through the WitCom app. Upon doing so, the defense attorney’s virtual WitCom number is displayed to the witness who then may accept or decline the phone call or ignore or reply to the text message.
For many, this might seem to be a fair compromise between the duty to disclose witnesses and the safety of witnesses whose identities are being disclosed. So what if defense counsel is required (bold in original) to download a prosecution’s app, which could include unknown malware or, more to the point, places a duty on the defense that no statute mandates.
But doesn’t the world happen by apps today, and don’t people download random apps all the time? So what’s the big deal about one more app, courtesy of the district attorney?
To argue that the court should accept the WitCom app because millions of people use Uber, Lyft, Grubhub, etc., is ludicrous. Those apps are voluntarily downloaded as a first-world convenience for the consumer. They are in no way akin to forcing an adversarial party to litigation to use an app absent a court order. Even when the defense attorney makes little or no effort to make contact through the app, one cannot say that a third-party app is “adequate contact information.”
Public defenders, by necessity and their nature, are distrustful of the government. This court, an agent of the government, does not believe that forcing a public defender or other defense attorney to accept an app, paid for by the District Attorney’s Office, another arm of the government, meets the intent of the criminal justice reforms that went into effect this year or the holding of People v. He. While this court does not in away way, shape or form believe that the District Attorney’s Office has any intentions aside from alleviating the worries of their witnesses and allowing defense counsel to do their job, forcing the defense attorney to use the prosecutor’s method does not satisfy People v. He.
Much as the efficacy of this app is in doubt, and it falls short of satisfying the statutory mandate of providing witness contact information, there is a larger issue at stake here: can the prosecution mandate that the defense download and use an app of the prosecution’s choosing?
There is the distrust of government, a not insignificant concern in itself. There is the potential that the app gets hacked and the defender’s information be accessed and sold to the highest bidder. Nowhere does the law require that a criminal defense lawyer’s duty include acquiescing to the “terms and conditions” of third-party app-makers.
In light of the many changes happening with little planning and even less experience with how it will play out, the use of third-party apps to fill the gap serves as an easy convenience for the prosecution, and in this instance, witnesses who would prefer to have their identities and contact information concealed. But as Justice Matthew Sciarrino notes, just because “there’s an app for that” doesn’t mean it suffices to meet the prosecution’s statutory burden or that the defense has to play by the prosecution’s rules.