Discovery

State v. Jackson/State v. Monroe – Telephone Calls From Jail Facilities

July 30, 2019 | By James S. Friedman, LLC

In my experience, client calls from jail or prison facilities come in two forms. Sometimes, a client will call me directly from the facility using the facility’s telephone equipment. On other occasions, I will receive a call from a friend or family member who will then “third-party” the client in from the facility. Both methods of contact present serious problems. The third party call involves having someone on the line who is not part of the case, and has no reason to listen to attorney-client conversations. Thus, this method of calling an attorney presents serious attorney-client privilege issues. I always advise clients to never discuss their case with anyone who has no need to know about it. A criminal case is a sensitive matter; information must be shared on a strictly “need-to-know” basis, and in a manner consistent with applicable rules governing privileged communications.

Direct calls using jail or prison telephones are highly problematic for other reasons. State v. Jackson involved calls made by an inmate at the Essex County Jail outside of Newark, New Jersey. That facility ostensibly allows inmates to make unmonitored and unrecorded calls to attorneys and Internal Affairs. Otherwise, inmates are informed at the beginning of all calls that they may be recorded or monitored. Inmates also sign a release form stating that they understand that calls are subject to monitoring and recording, and may be intercepted, and Jackson signed that form. Similarly, inmates at the Middlesex County Jail, the other facility in this case, receive a pamphlet stating that “[t]elephone calls may be monitored and recorded except calls to the Internal Affairs Unit and legal telephone calls.” Further, the inmate hears “[t]his call may be recorded or monitored” at the beginning of each monitored call.

Defendants in each of these cases made calls from these jails. The Middlesex County Prosecutor’s Office then served grand jury subpoenas on the jails to obtain the recordings, and the defendants moved to suppress. The motion judge suppressed the calls because the subpoenas, in his view, violated the New Jersey Wiretapping and Electronic Surveillance Control Act. He believed that a separate warrant or wiretap order was necessary even though the Wiretap Act allows jails to monitor inmate calls. He also believed that an inmate’s consent or knowledge that calls would be monitored or recorded was invalid because of the imbalance of power between the inmate and the facility. In an effort to be sensitive to inmate privacy concerns, he suppressed the calls in both cases.

New York (Finally) Levels the Discovery Playing Field

May 12, 2019 | By James S. Friedman, LLC

Discovery in New York State criminal cases has long been completely unfair to defendants. The New York discovery rules have not been substantially revised since 1979. More than a dozen reform bills that have been introduced over the last 40 years have been successfully blocked by the State’s district attorneys’ association which has argued, among other things, that providing information concerning witnesses places them in danger.

What little discovery was available in New York included something called a “People’s Voluntary Disclosure Statement”. This basically useless document, which was just a couple of pages in length, was composed of a set of questions and responses drafted by the district attorney’s office with the goal of providing as little case-related information as possible. Because of the lack of meaningful discovery, motion practice was similarly laughable. Defense attorneys would typically file an omnibus motion at the beginning of the case seeking every conceivable form of pretrial relief without really knowing what was needed for their case. Given the absence of information that could be obtained through meaningful discovery procedures, such a motion could not be tailored to the specific needs of a particular case and did little, if anything, to create a record for appeal.

Most criminal cases do not proceed to trial. In fact, between 95 and 100 percent of all criminal cases nationally resolve by way of plea deal. Under the prior New York rules, district attorneys were able to withhold information from defense counsel until just prior to trial. This created two problems. First, defense attorneys were forced to negotiate and evaluate plea offers with virtually no information. Defendants were, therefore, placed in the unenviable position of making major decisions concerning their cases with little, if any, information regarding the strengths and weaknesses of the People’s case. Additionally, if the defendant decided to proceed to trial, counsel would be forced to work through the majority of their trial prep time without important information that could form the basis for investigation of the underlying facts, effective cross-examination of witnesses, and viable defenses.

State v. Brown and the State’s Discovery Obligations

February 13, 2019 | By James S. Friedman, LLC

Our Supreme Court decided State v. Brown on February 4, 2019. The case is very significant because it addresses the ongoing issue of the State’s obligation to produce discovery in a timely manner.

The facts surrounding the discovery violation and its ramifications in this case are somewhat complex. Suffice it to say that a week after the start of trial – after jury selection, opening statements and the examination of four State witnesses – the prosecutor produced 18 reports to defense counsel. These reports concerned facts discussed in the testimony of the officers who had already testified. The following week, the prosecutor produced yet another item of discovery. Ultimately, the defendants were convicted of murder, robbery and a weapons offense. The trial court denied their post-trial motions and imposed sentence, and the Appellate Division affirmed their convictions and sentences.

The Supreme Court reversed and ordered a new trial. The Court found, among other things, that the State’s failure to produce the underlying discovery items until after the commencement of trial was a violation of Brady vs. Maryland, which requires the State to turn over exculpatory material prior to trial. The failure to timely provide the discovery at issue to the defense inhibited counsel’s ability to cross-examine witnesses in a meaningful way, to impeach witnesses, and to present exculpatory evidence and evidence of third-party guilt.

New Discovery Procedure in New York Does Not Go Far Enough

December 10, 2017 | By James S. Friedman, LLC

Discovery rules in criminal cases can vary greatly between jurisdictions. New Jersey has some of the most liberal discovery rules in the nation. It is common for discovery to be produced well before an indictment. Further, under current rules, all discovery must ordinarily be produced at or just prior to indictment. This relatively early discovery production enables defense counsel to quickly come up to speed on the case, identify witnesses, perform any necessary investigations, and identify any areas where expert testimony may be required.

In sharp contrast, prosecutors in some other jurisdictions are not required to produce discovery until relatively late in the proceedings, with the result that important discovery which could impact significantly upon a defense case may not arrive until the eve of trial. New York recently took a very small step toward addressing the problems and issues that result from eleventh-hour discovery production.

New York State’s Chief Judge recently issued an Order requiring district attorneys to review their files for Brady material and produce it at least 30 days before major trials. The Order takes effect on January 1. Brady material gets its name from the landmark 1963 United States Supreme Court decision of Brady v. Maryland, and includes exculpatory material and/or material that could be construed as favorable to the defendant. Continue reading ›

Carpenter v. United States, Third-Party Collection of Personal Information from Electronic Devices, and Fourth Amendment Rights and Protections

September 15, 2017 | By James S. Friedman, LLC

Our personal information is constantly being collected by third parties without our realization. Every time we use one of our devices, we expose personal details and information to collection by any number of entities that use the data for various purposes. Privacy is clearly on the decline as the use of one device or another becomes a standard and unavoidable part of life. An individual cannot be part of modern society absent a cell phone and/or computer. These facts all have serious implications for criminal defendants.

In 1979, the United States Supreme Court decided Smith v. Maryland. There the Court discussed what has become known as the “Third Party Doctrine”, which provides that individuals do not have a reasonable expectation of privacy in information voluntarily given to a third party (e.g., telephone carrier or bank). This information is then available to Government agencies, including law enforcement agencies.

The Court is now scheduled to hear a case that asks what the police and prosecutors can legitimately do with personal data that is collected from third parties. Carpenter v. United States could greatly alter Fourth Amendment principles and procedures as they must be applied in cases involving data resulting from the use of cellphones, computers, and similar devices. Continue reading ›

Turner, et al, v. United States – A Primer on Brady Basics

September 13, 2017 | By James S. Friedman, LLC

It has been said that the defense attorney is frequently the most ignorant person in the room. The reason for this unflattering description is that s/he knows the least about what actually happened at the crime scene. The prosecutor has an army of investigators tasked with developing as much information as possible concerning the alleged underlying offenses. The defendant knows what happened because s/he was presumably present when the relevant events transpired. Defense counsel is the last person to arrive on the scene and, more often than not, lacks the resources to conduct an investigation rivaling that of the prosecuting authority. Thus, the defense attorney’s best (and frequently only) reliable source of information is the discovery received from the State or the Government. Generally speaking, the prosecutor must turn over anything that may be exculpatory or used to obtain a conviction. The failure to do so may violate the principles set forth in Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Brady held, among other things, that the Due Process clause is violated if the Government withholds evidence that is favorable to the defense and material to a defendant’s guilt or punishment. In Turner, the United States Supreme Court rejected a Brady claim because both prongs of this test were not satisfied.

The seven defendants in this case, including Christopher Turner (“Turner”), were indicted, tried and convicted for the kidnapping, robbery and murder of Catherine Fuller (“Fuller”). The centerpiece of the Government’s case was that Fuller was attacked by a large group of individuals. Their direct appeals were rejected. In post-conviction proceedings, the petitioners alleged that the Government withheld seven pieces of evidence that were both favorable to them and material to their guilt insofar as the missing items could have been used to undermine the Government’s “group” theory and suggest an alternative theory, which was that Fuller was attacked by, at most, one or two individuals.

Significantly, the Government did not contest the claim that the withheld items were favorable to the defense, but did challenge the conclusion that these items were material. As to this point, the Court found that evidence is “material” when it is reasonably probable that its disclosure would have changed the result of the proceeding. Reasonable probability of a different result occurs where the fact that the evidence was missing undermines the confidence in the trial’s outcome. To reach these conclusions, the missing evidence must be evaluated in the context of the entire record. Continue reading ›