Fun in the municipal court

This morning I argued a motion to compel with a municipal court prosecutor, who informed our judge that Brady does not apply to an internal investigation of officers who beat the crap out of my client. The argument was something like: a) it is not in my file, so I do not have to disclose it; b) I purposefully did not look at it, so I would not have to disclose it; and c) the defense has the burden of proving what it is that is in the file before the prosecutor can be forced to disclose it.
I point out that in Kyles v. Whitley the U.S. Supreme Court is very clear that the prosecutor has a duty to seek out Brady material and disclose it when it is in the possession of a government agency, but the prosecutor argues that there is no such duty. Eventually we discover that the pros. has not read Kyles v. Whitley (probably has not read Brady for that matter). The result of the hearing is that the pros. should read the case and then let our judge know if the judge still needs to review the materials.
Later in the day, I get a phone call (followed by a written motion) from the pros., who says that the officers have their own counsel, and that the officers, because they have counsel, have standing to object to the disclosure of the Brady material. So, we will have another hearing on the matter.
The same prosecutor today, in an unrelated trial, argues that an accident report, which contains statements from a witness who is not present to testify, is admissible because a) it is the officer’s observations and therefore it is admissible; and b) because they always admit accident reports in the municipal court.
Later, when I tell the jury in closing that they didn’t hear any evidence in this case because the pros. didn’t call any witness that actually saw the accident occur, the pros. objects, arguing that he has no burden to call the “victim” as a witness and that, since I have commented on their failure to call his “victim,” he should now be allowed to comment on the defendant’s failure to testify as well.
I understand that for the layperson, the point of all of this may not be clear. There are some basic rules and principles in criminal law (quite a few, actually), that lawyers are (should be?) taught in law school. Here are some:
1) The prosecution has a duty to disclose exculpatory evidence, including direct evidence of innocence and material that can be used for impeachment purposes at trial. The duty is a legal one and an ethical one. When prosecutors ignore this, or rationalize not disclosing, innocent people get convicted of crimes.
2) Hearsay is inadmissible, with some exceptions that are listed for you in the rules of evidence. Police reports and accident reports, which are based on information provided from people at the scene, are no more admissible than the officer’s testimony as to what witnesses told him.
3) The burden of proof is on the prosecution.
4) Just to be clear, the burden of proof is not on the defendant.
If you are going to prosecute (or defend, for that matter) criminal cases, no matter how large or small, at a minimum you should read the seminal cases in your area of law. Please, read Brady.
Read Kyles v. Whitley.
Read Miranda v. Arizona.
Read Crawford v. Washington.
Read the cases that interpret those cases, and yes they keep coming and it will never end. But you are a lawyer, you can do it.
And please, read the rules of criminal procedure and the rules of evidence. Don’t make shit up when you are arguing to a judge – they often rely on us to give them the law that applies to a given situation, and therefore they rely on us to be truthful and credible. Thanks.
If I am missing something here, please leave a comment and let me know.

2 Responses to “Fun in the municipal court

  • Some prosecutorial legal theories are just precious.
    I once moved to recover documents seized during a search on the grounds that they were attorney-client privileged. (They were letters between the client and me.)
    The local DA solemnly informed me that the privilege had been “burst” by the search and no longer applied.

  • And there was the prosecutor who explained to me that there was no such thing as privilege when the charge was murder.
    Of course (and alas) there’s plenty of proud ignorance on our side of the aisle, too.

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