This is a question about discovery. Does the focus of a criminal investigation have the right to see *internal communications *between investigators and prosecutors? Does he\she have that right even if no charges are brought?
As a general rule: no.
I suppose I might imagine a specific situation in which the texts might have evidentiary value to impeach a witness, or even – and I’m reaching here – to validate some sort of fabrication of evidence claim, even if neither the sender and receiver were prosecution witnesses.
But the bar for showing such relevance is much higher than mere speculation. Even mere speculation from Rudy Giuliani.
Would evidence of mere bias have any legal impact? Are investigators expected to be neutral and unbiased about the subjects they’re investigating, or would you have to show they violated some specific standard of conduct*?
*I’m assuming they’re under some very strict and comprehensive standards (like a lawyer’s or surgeon’s) so it’d be easy enough to break one with just by a lack of mindfulness or breaking procedure,
Thanks Bricker!
Mark Fuhrman comes to mind.
Perhaps more directly germane, if the charge were to be some form of obstruction of justice relating to the FBI investigation, it would potentially be necessary to show that it was reasonably foreseeable that the investigation was going to turn into a criminal proceeding. In that circumstance, I think there’s at least a decent argument for discovery into whether the investigation was conceived of or primarily intended simply as political harassment.
There are three kinds of claims that might be made:
[ul]
[li]Members of the jury, you should not believe the testimony of this witness, because of his obvious bias[/li][li]Your Honor, because this witness is so biased, the jury should not even hear him[/li][li]Your Honor, because all these witnesses are so biased, there is no real way the trial could possibly be fair, so the charges should be dismissed[/li][/ul]
The first claim is very easy to sustain. Even the barest evidence of bias is enough for the defense to argue to the jury that they should give little weight to the evidence. Indeed, that’s the function of a jury: to hear testimony and decide what weight to give evidence.
The second claim relates to admissibility of evidence; it’s a claim that, as a matter of law, a witness is simply so unreliable that he cannot even testify, that no reasonable jury could find him credible.
To make that showing, much more than mere evidence of bias is needed. The idea is that evidence of bias relates to the weight of the evidence; the jury has the job of deciding if they think the bias taints the testimony. It’s ultimately a call for the trial judge to make, and it’s within his “sound discretion.” That’s a standard that means, on appeal, that the appellate court will go along with what the judge decided as long as there is some evidence in the record to support the decision. Considerable and specific evidence of bias and fabrication by a witness would be necessary to sustain a finding that a given witness could not, because of that bias, testify.
The third claim is even more serious: essentially that the general Due Process guarantee of the Fourteenth Amendment forbids a trial that is the result of egregious, pervasive bias. That kind of finding would be an extraordinary remedy for a judge to take, and would require extensive evidence of such pervasive bias and a showing that the bias actually prejudiced a chance of a fair trial. It would be an extremely unusual event for a judge to rule thusly, and equally unusual for an appellate court to decide that a trial judge improperly failed to reach that conclusion.
I don’t say it’s impossible, but in my view it’s more likely that the accused will be bitten by a radioactive spider and escape trial by swinging away on his newfound webs.
I’m not sure I understand. Isn’t the prosecution supposed to be biased against the defendant? I mean, if the prosecutor doesn’t really think you did the crime, shouldn’t he dismiss the charges? I don’t think the prosecutor is supposed to make an opening statement like “the defendant may or may not have done it, let’s all listen to the evidence pro and con and try to figure it out.”
And, as a witness at a battery trial, if I see the guy who hit me over the head sitting at the defense table, I’m going to be biased against him. Should the jury disregard my testimony?
Just what exactly are you accusing me of? :mad:
Plus, IIRC, isn’t it the case that discussions of plea bargains cannot be brought up at trial. If you can’t discuss what the prosecutor said to the defence lawyer, why would you be able to bring up the internal discussions of the prosecutor?
The Furman issue was, if memory serves me, over discussions he had with outside parties and used for the first point - point out an obvious bias. I don’t recall any discussion of internal police-prosecutor communications; did the defense get those?
IANAL but… The standard is supposed to be the prosecutor turns over to the defence any and all evidence relating to the guilt or innocence of the accused. Internal communications, unless they relate to the quality of evidence, I assume are not relevant. If the police told the prosecutor “this should help nail the sonnofabitch” - not relevant. If the email says something like “we are not sure this witness is telling the truth” or “we may have mixed up the bullet casings but don’t tell the defense” - relevant.
I assume Giuliani’s demands, like much of the blatant misinformation (13 democrats, witch hunt, etc.) is laying the back story that the entire process is flawed and biased and a justified refusal to hand over all texts would be cited by the legally illiterate supporters as more evidence of bias.
Good point. It would be rather damaging at a trial. However, I thought we’re still pre-trial on this case, and that’s the situation I meant to ask about.
That was what my second point above was getting at. At least one of the federal obstruction statutes requires that there have been a “proceeding” to be obstructed, and some of the case law has indicated that while an FBI investigation is not itself a proceeding, obstruction could still obtain if it was reasonably foreseeable that the underlying investigation would turn into a criminal proceeding. In other words, one of the elements of proving guilt is that the FBI’s investigation was likely to have led to a criminal charge. In this scenario, I think there’s at least a good argument for discovery into the investigation’s internal communications, to determine whether the investigators believed at that time that they were legitimately pursuing criminal charges, or if they were just running political interference. I don’t think a defendant would get to do this as a fishing expedition in every obstruction case, but here there’s a hook, based on the texts we’ve seen so far, to raise the concern.
This is different from Bricker’s point above. The argument would not be that the obstruction case itself is biased, but rather that it fails because there was no legitimate underlying proceeding to be obstructed.
The key factor in Fuhrman’s case was not that he was biased, exactly. It was that he lied on the stand. Witnesses testified to the fact, and there were tapes backing them up.
But this did not involve any private discussions with the prosecution.
Bias is different from a belief that you’ve got a good case. Bias is emphasising all the evidence against the accused, and trying to hide evidence in his favour. Bias is saying to the police: "We’ve been trying to get this guy before, and this time I’ll make it stick, no matter what the defence evidence is. Bias is saying “All members of that gang are crooks. It’s just a matter of finding something that we can nail them with - doesn’t really matter what.”
Prosecutors have to avoid pre-conceived ideas and tunnel vision. They have to be open to the idea that new evidence might turn up that casts real doubt on their case.
What if two days before the trial you’re overheard in the bar bragging about how you’ve hated the accused for a long time and this is finally your chance to screw him good and get him sent away. If the jury were to hear that, don’t you think that might influence their assessment of your credibility?
Bumped.
TNY: In major shakeup, one of voices in Rudy Giuliani’s head resigns: https://www.newyorker.com/humor/borowitz-report/in-major-shakeup-one-of-the-voices-in-rudy-giulianis-head-resigns?utm_source=nl&utm_brand=tny&utm_mailing=TNY_Borowitz_062520&utm_campaign=aud-dev&utm_medium=email&bxid=5eefb814a84f5a67236091f1&cndid=61463611&hasha=8e32a2fd03bad151d0f84d99ffeedeea&hashb=e7146e39eca509ffa1a0f288fa2b4044bd38d0ea&hashc=464ed99fa12050ede00e126d5196d4ee92b1bd4839e0497b16124608665519eb&esrc=subscribe-page&utm_term=TNY_Borowitz
God I fucking loathe Borowitz. He is to humor what a nice, steaming pile of shit is to a creme brule.
Moderator Note
Please avoid political jabs in GQ. This was not a good reason to bump the thread. No warning issued.
Colibri
General Questions Moderator
Moderator Note
This is also out of place in GQ.
I think it’s best to close this thread.