The Massachusetts Supremes have decided, in their infinite wisdom, that defense attorneys must reveal their cross-examination evidence to the prosecution ahead of time.
One of the few effective tools available to a defense attorney is the chance to show that a prosecution witness is lying. The ruling now permits the prosecution to have access to any evidence developed by the defense ahead of time, and will - obviously - permit prosecution witnesses to tailor their stories to that evidence.
So far as I’m aware, no other court system imposes such a requirement. It’s absolutely outrageous, and upends a system that was designed to mitigate in some small way the huge differences in available resources between the prosecution and defense.
Why don’t they just stick the defense lawyer in a cage and poke him with sharp sticks during the trial?!?
This is an ill-considered and ill-managed move by a court that loves to place itself in positions of power by rewriting the law to suit its own idea of how things should be.
The Procosecution already has such a requirement, and there is no burden on placing the same on the Defence.
That providing evidence about the credubility of witnesses, allows the prosecution to drop unwarrented cases without the expense of trial (something that would be fiscally adverse to some defence teams).
Massachusetts has some of the screwiest legal procedures I have ever heard of. Just a few months ago, the state passed a new drunk driving bill under much controversy. Part of what it did was to allow previous convictions for drunk driving to be directly admissible in court.
Believe it or not, the old system required that all previous convictions for drunk driving be retried to be used as evidence for the new charge. If a person was being tried for a third offense at drunk driving, the prosecution would have to locate witnesses, police etc. and retry charges one and two as well as the new charge. If they didn’t the other charges couldn’t even be used even though the full records for previous conviction were at the courthouse.
That is only one thing that I know about. Who else knows what they have come up with?
I guess I’m confused - isn’t it the rule that in a criminal trial, any previous convictions cannot be mentioned, at least after the verdict is in? In my limited forensic knowledge, I thought that there was a reason - the person is on trial for a supposed crime he committed this time, not last time.
Or are you saying that previous convictions can’t be mentioned even in the sentencing phase?
I guess I don’t see the big deal. While I’m definitely of the opinion that the defense should get as many advantages as possible (within reason), isn’t it illegal to coach witneses like that? Presumably the prosecution wouldn’t be allowed to show the cross-examination evidence to the witness, right? For just that reason.
Well, this statement is contradicted by the article you cite:
The only evidence that they have to turn over is that which they will use to impeach the credibility of the witness, not “any evidence developed by the defense ahead of time.”
But that’s the whole point. The defense has to be able to impeach witnesses by going after their credibility. If the prosecution has to be informed that one of their witnesses is going to get hammered they can tailor questions ahead of time to mitigate the damage, or in the case of expert witnesses they can get a new, more credible witness.
It’s as if O.J.'s lawyers had to tell Marcia Clark that Fuhrman had used a racial slur in the past ahead of time. Think of how the trial might have ended up if Johnnie Cochran hadn’t been able to make Fuhrman look the fool. Clark would have expressly coached Fuhrman to admit it ahead of time to take that ammunition away from O.J.'s lawyers.
It’s stupid, and it stacks the deck against the defendant.
This ruling sounds very problematic to me. In our justice system people have to be proven guilty, and it’s the prosecution’s burden to do that. If they’ve done their job right, guilt beyond a reasonable doubt should be irrefutable by anything the defense could say or do. The prosecution should not be in the business of “overcoming” a valid defense.
Previous DUI convictions couldn’t be used during the sentencing phase as well if they weren’t effectively retried. I read a series of articles about this when they were trying to pass a new law and why it was needed.
I just brought it up because I thought it was another example of a Massachusetts oddity.
They’re set by the legislature, but this case was about the interpretation of Rule of Criminal procedure #13(a)(3)(A), which states: "If the judge grants discovery or inspection to a defendant pursuant to subdivision (a)(2) of this rule, the judge may upon motion by the Commonwealth condition his order by requiring the defendant to permit the Commonwealth to discover, inspect, and copy any material and relevant evidence discoverable under subdivision (a)(2) which the defendant intends to use at trial, including the names, addresses, and statements of those persons whom the defendant intends to use as witnesses at trial ". The majority decided that the phrase “including” meant that there was other evidence that the defense could be ordered to turn over, that was not limited to only items the defense intended to use as a witness, but could also include impeachment evidence. The dissents disagreed with that interpretation, and placed more emphasis on the sanctity of cross examination by defense counsel.
