Back in July of 2008, I posted about one of Mark Bennett’s posts on “NSL’s” – nasty little surprises. A NSL is essentially exculpatory evidence which either the prosecution/State has not provided, or which they are completely unaware of. The point was, since the deck is stacked against you to begin with, why disclose NSL’s which you discover in the course of investigating and preparing for your criminal jury trial? After all, the chances of us winning to begin with are slim, and much of that is due to the way the system is set up. If we let the prosecutor on to our theory of the case before our opening argument, he or she will inevitably do everything possible to shoot it down – either by offering deals to slum rats to testify to something different than what they have previously said, or by prepping the investigating officer to pontificating on the subject in such a way as to steal our thunder. Of course, in a perfect world you should share exculpatory evidence with the prosecution/State so they could dismiss the case. But that’s not usually how prosecutors work unfortunately. They want a conviction, they want to win. Many would rather diffuse your NSL and move ahead with prosecution.
The only problem is that in West Virginia, the defense is obligated to provide “discovery” to the State/prosecutor.
First of all, someone please tell me how that doesn’t violate the 5th Amendment of the US Constitution? As defense attorney, I represent the defendant obviously. In the United States, defendants in criminal trials have no obligation to ask even a single question, call even a single witness, or introduce even a single item of evidence. They have the 5th Amendment right to remain silent. But the state rules say that if I do call a witness or present evidence, I have to provide disclosure of such before the trial – sometimes by a particular date.
As if the system didn’t make it easy enough for prosecutors already…. If you hear prosecutors talk about trying cases, they make it sound as if they have such a difficult task. They have to come up with such an enormous amount of evidence, and they have to prove so much…. In reality, being a prosecutor is a piece of cake. You are set up to win. In fact, to actually lose a case due to an acquittal in West Virginia, all 12 jurors have to unanimously vote “not guilty.” With that low of a bar, it’s pretty hard not to win. And yet, the State has mandated that we cannot ambush prosecutors with some types of NSL’s.
The practice of prosecution is basically preparing for, and conducting, direct examinations. They’re their witnesses, they’re mostly cops or victims, or people with plea deals that come with a noose around their neck, held by the prosecutor, which require them to do the prosecutor’s bidding, or else. And they prepare the witnesses and ask open ended questions and check off on their legal pad everything the person is supposed to say. That’s pretty much it. As defense attorneys, we engage in guerilla warfare with all of these witnesses. We almost exclusively cross examine witnesses. We have to learn, develop and master the art of cross examination. It is much, much more difficult. And more unpredictable.
When we call a NSL witness, we reverse the roles and put the prosecutor on defense – something they are not used to.
The “discovery” rules do not mandate that we provide all of our NSL’s to prosecutors. We have to disclose the names and addresses of any witnesses, though generally not the substance of their testimony (as in civil cases). Of course the prosecutor is free to have someone contact or interview the person to see what they are going to say. Unfortunately, sometimes that consists of running criminal background checks on the person, and otherwise investigating the person as if they were a suspect in a crime. We also have to provide copies or access to any exhibits or tangible evidence we intend on presenting.
The loophole here is in the substance of the witness testimony. The prosecutor doesn’t necessarily have any idea what I will ask the witness on the witness stand. He can interview the person before hand, but he may not be able to put 2 and 2 together before I do so for him/her in front of the jury.
I recently revealed some NSL’s to a prosecutor/court/jury during the course of a criminal jury trial. The prosecutor was upset because I only revealed the identities of the witnesses the day before the trial, and he strenuously asked the judge to “suppress” my witnesses due to failure to comply with discovery rules by disclosing the witnesses well in advance of trial.
There are several problems with this:
(1) I only found these particular witnesses at the last minute, and therefore I could not have disclosed them earlier; (2) The witnesses had exculpatory evidence and law enforcement knew about them in advance, yet failed to disclose them to the defense; (3) If these witnesses had exculpatory evidence, shouldn’t the prosecutor, who’s job it is to see that “justice” is done, also be interested in that information – in finding the truth – and is it ever proper for the prosecution/State to suppress exculpatory evidence from a jury – a jury who is in the process of deciding the fate of a young man who otherwise would have a long, hopefully happy, life to live?
Of course the practical reality also is that, if the court did exclude/suppress these witnesses, it would be per se ineffective assistance of counsel and a mistrial would have to be declared. So in reality, even if the court sympathizes with the prosecutor, the greater interest is in judicial economy, and no judge wants to declare a mistrial if it can be avoided. Moreover, no judge wants to invite a reversal if no mistrial is declared and exculpatory evidence is suppressed due to failure of counsel to disclose or provide “discovery.”
When you really think about these things, you come to the realization that this is a scary world we live in. There are so many damn laws, just about everything is illegal. And prosecutors can be like dictatorial tyrants. If they, or law enforcement, want you convicted of something, they will do it. Only a defender of people – a defender of the constitution – may be able to save you. And if you have to depend on the public defender or court appointed defense counsel to do this, they may not have the time/motivation/resources to conduct their own investigation and find exculpatory evidence. The best protection from wrongful conviction is money. Even if you have to borrow it, do so. Hire a criminal defense attorney, the best you can afford. Hire a private investigator. Fight for your life.
– John H. Bryan, West Virginia Attorney