This is different state and trial, but gives some overview of evidence sharing ideas.
QuoteSJC says defense must share evidence
Some lawyers warn change is radical
By Jonathan Saltzman, Globe Staff | March 15, 2006
A deeply divided Supreme Judicial Court ruled yesterday that prosecutors are entitled to know before trial what evidence criminal defense lawyers plan to use to cross-examine the state's witnesses, a decision prosecutors say levels the playing field but defense lawyers argue subverts the judicial system.
By a 4-3 vote, the state's high court decided that trial judges can order defense lawyers to share evidence they have gathered and intend to use to impeach the credibility of prosecution witnesses, including witness statements, documents, and recordings.
Under rules of evidence across the country, prosecutors already have to turn over the findings of criminal investigations to defense lawyers. But most states, including Massachusetts, have required defendants to provide the prosecution only with evidence their own witnesses were expected to testify about, not what the defense had learned to challenge government witnesses.
That is unfair, the high court said, even if the state typically has greater resources than defendants.
''The role of cross-examination, and the existence of an imbalance, should not override the right of the people and the victims of crimes to have the evidence evaluated by a truly informed trier of fact," Justice John M. Greaney wrote in the majority opinion.
The ruling drew sharply worded dissents from Chief Justice Margaret H. Marshall and Justice Robert J. Cordy, who were joined by Justice Roderick L. Ireland.
Marshall said the decision deprives defense lawyers of one of their most potent and constitutionally protected weapons: the ability to surprise a prosecution witness during cross-examination with evidence that shakes his or her testimony.
''This is not 'trial by ambush,' " she wrote. ''To the contrary, it permits the jury to assess for themselves the reliability of a witness's memory or whether an accuser is truthful."
Yesterday's decision, she added, ''all but guarantees constitutional challenges in the future."
Cordy, a former federal prosecutor, said the ruling was a ''sea change" that put Massachusetts at odds with federal courts and courts in most states. Invoking the phrase of a notable legal scholar, Cordy said the ruling will disable the ''greatest legal engine" ever invented to uncover the truth: cross-examination of witnesses.
In recent years, courts across the country have updated their rules of criminal procedure to require more sharing of information before trial. In Massachusetts, for example, rules require defendants to disclose alibi defenses and defenses based on mental illness to ensure that both sides will be able to prepare for key issues during a trial.
In the case that the court ruled on yesterday, the court said Superior Court Judge Margot Botsford had the authority to order Patrick John Durham, a murder defendant represented by a court-appointed lawyer, to turn over information gathered by a defense investigator to cross-examine prosecution witnesses. (Durham pleaded guilty to manslaughter while his lawyer appealed the ruling, making the issue moot to his case.)
The majority of the high court said that the rules of evidence supported Botsford's ruling and disputed Durham's lawyer's argument that it violated federal and state constitutional protections, including the right to confront one's accusers.
Suffolk District Attorney Daniel F. Conley applauded the ruling. He said it puts prosecutors on equal footing with defense lawyers, who often seek to catch witnesses off guard with prior statements they have made that contradict their testimony.
''This may deny some defense attorneys a Perry Mason moment when they surprise a witness and say, 'Gotcha!' " Conley said. ''But it's not television. It's not movies. It's real life."
He said the ruling will make the courts more open and fair and that his prosecutors will now ask for such evidence before trials.
But several defense lawyers predicted the decision will radically change the dynamics of criminal trials. Prosecutors, they said, now have the green light to share evidence with witnesses who will then change their stories before they are cross-examined.
''If you think of cross-examination like a test for the witness, this is like giving the witness the questions in advance of the test," said James L. Sultan, a lawyer for Durham who appeared before the high court.
Peter Krupp, who submitted a brief on behalf of two associations of criminal defense lawyers, said the ruling will make it harder for defense lawyers to challenge prosecution witnesses.
For instance, he said, in a murder case he worked on, a witness who testified for the state claimed he saw the defendant on a certain day, but Krupp confronted him on the stand with a record that proved he had been wrong.
Jonathan Saltzman can be reached at http://www.boston.com/news/local/articl ... _evidence/
Exactly my point. That is why this is not commonly acceptable. It goes against the basic principle of consitutional rights - mainly to do with right to just trial.
