My view

Albany places victims and witnesses at risk

By HON. FRANK J. LABUDA
Posted 2/19/20

The new discovery law in criminal cases mandating that the prosecution must reveal all of its evidence within 15 days of arraignment is yet another example of Albany being out of touch with reality, …

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My view

Albany places victims and witnesses at risk

Posted

The new discovery law in criminal cases mandating that the prosecution must reveal all of its evidence within 15 days of arraignment is yet another example of Albany being out of touch with reality, compromising the safety and privacy of citizens and deterring law enforcement.

Here is the chilling effect: The prosecutor’s obligation to turn over the names, addresses and telephone numbers of any person who has relevant information regarding a case to the defense will likely result in citizens refusing to get involved to assist law enforcement in solving crimes. It discourages bystanders who may have useful information from coming forward because they will fear for their safety and fear harassment or retaliation from criminals.

It will jeopardize drug and child abuse cases: Confidential informants and other witnesses to drug trafficking will hesitate to cooperate with police for fear of retaliation from drug gangs. One of the key investigative tools in child abuse/sex cases is information given by neighbors and family members who rely on the promise of anonymity. Likewise, mandated reporters such as teachers, aides, nurses and others will now be reluctant to report child neglect and sexual abuse.

Volunteer firefighters and first responders may now be dragged into criminal trials and proceedings as “discoverable” witnesses because of their life-saving work at a potential crime scene.

The new law permits the defendant to “inspect” the premises and undertake his own investigation of the crime scene. Consider the victim of a crime like burglary or rape, and her horror when she learns that the perpetrator and his lawyer will be allowed back into her home and her bedroom “to take notes.” This is an affront to our right to privacy. It victimizes the victim all over again. Today’s digital technology allows law enforcement to quickly and completely record any crime scene. What do the presence of the perpetrator and his lawyer add?

The result of distrusting prosecutors and law enforcement: The new law is cloaked in a veil of an inherent distrust of prosecutors and law enforcement. Experienced prosecutors’ ethical practices seek to resolve cases, protect witnesses (often child witnesses) and see to it that justice is achieved. To this end, as a prosecutor, I have in thousands of cases provided open discovery and have conferenced, formally or otherwise, criminal cases without exposing the victim and law enforcement to undue publicity and exposure. The new law places additional burdens on law enforcement and opens their complete personnel files to the criminal and his lawyer. Prosecutors must be given the flexibility to disclose witnesses and evidence in a way that does not compromise the victim, as well as community safety or police investigations.

Justice delayed is justice denied: The pace of criminal litigation will be considerably slower. The new law does not streamline criminal cases but rather significantly expands the time frames for pre-plea and pretrial discovery. The new law will slow the disposition of cases, with discovery and protective motions, and overreaching demands for information about potential witnesses, police personnel records and requests to inspect the homes of victims.

In my opinion, and in my experience as a prosecutor and a judge, this new discovery law must be changed not tomorrow, but yesterday! It is up to good prosecutors to fight for the rights and safety of our communities and our citizens and make our justice system better. This new law does not advance any of those objectives.

The Honorable Frank J. LaBuda is a retired judge from the Sullivan County Court and the former Chief Assistant District Attorney of Sullivan County.

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