A number of changes to the Practice Book went into effect on January 1, 2010 here in CT. Of particular importance to this blog and criminal defense practitioners in the State are the changes to the discovery rules.
The regular discovery section was amended to add the following language:
Without the prior approval of the prosecuting authority or the court, defense counsel and his or her agents shall not provide copies of materials disclosed pursuant to Section 40 -13A to any person except to persons employed by defense counsel in connection with the investigation or defense of the case.
Note the use of the very specific “defense counsel”. Most criminal practice book provisions use the phrase “the defendant” as a substitute for either the defendant himself or his lawyer. But the use of “defense counsel” is particularly notable. The section seeks to exclude the defendant himself from possession copies of police reports, statements, affidavits, etc.
The only way for the defendant himself to get copies is through the permission of the prosecutor or the court. And even then, I suspect (as is the practice for many defense lawyers) they would require that names and addresses be redacted.
The changes to the section were actually agreed upon by a joint task force, comprising prosecutors and defense attorneys. The “compromise” was a much expanded discovery provision, making disclosure of all statements, affidavits and reports mandatory upon written request by the defense.
This, in my opinion, is a major victory. Each court here in the State was its own fiefdom prior to this change. In some jurisdictions you’d get all discovery on the first court date, without even having to ask, and in others the only way you’d get to see a police report is if you sat in the prosecutor’s office and read it – and perhaps copied it by hand – while they stood over your shoulder. Some jurisdictions would give you whatever you wanted and others wouldn’t give you what you were entitled to.
The brand new Section 40-13A provides:
Upon written request by a defendant and without requiring any order of the judicial authority the prosecuting authority shall no later than forty-five days from receiving the request provide photocopies of all statements, law enforcement reports and affidavits within the possession of the prosecuting authority and his or her agents, including state and local law enforcement officers, which statements, reports and affidavits were prepared concerning the offense charged, subject to the provisions of Sections 40 -10 and 40 -40 et seq.
This is a tremendous improvement, making uniform discovery provisions across the State.
But many are not happy with the tradeoff. The local listserve erupted today with a discussion of this. The argument – a valid one – is that the requirement that clients not be given copies of discovery is unethical. The file, after all, belongs to the client and the client only. The police reports are his police reports and the statements are by witnesses accusing him.
There are many clients who don’t want copies, but there are just as many who do. This new requirement might end up straining relations between attorney and client, which is an even bigger problem for already maligned public defenders.
Of course, this is not to say that the defendant can’t view the reports and statements. One could sit there all day and let the client read the documents in your possession; you just can’t make copies and hand them over – not without permission of the State anyway.
The rationale for the State’s position, I suspect, is that there is a risk of retaliation against witnesses whose names, addresses and phone numbers are sometimes printed in reports and on statements.
An easy solution for this, of course, is a requirement that all such identifying information (other than name) be redacted and copy of that redaction be provided to the State as well, as proof that it was indeed redacted.
I suspect the State might balk at this, though, because there are some lawyers who don’t bother to redact anything when they turn over discovery to the client. As I said, my practice has always been to redact, but I know there are some who don’t. The State doesn’t trust them and thus we all have to comply with this rule.
There is no State caselaw that I found addressing this issue. But there will be a challenge at some point – not by a lawyer, I think they’ll get on board with this rule sooner or later – but by a headstrong client running up against a stubborn prosecutor who refuses to give permission.
The argument can be made that as long as the defendant’s legal representative – the defense lawyer – has access to all materials, it is just as good as the defendant having access. The lawyer can, after all, show his client the documents. And it is the lawyer who has to defend the defendant, to advocate on his behalf and to present evidence in his defense.
But that argument belies a fundamental misunderstanding of the nature of the relationship between the defense lawyer and his client. I can imagine that if I were accused of a crime, I would be mightily irked if my lawyer told me he couldn’t give me a copy of the documents of accusation against me. I’d want to hold it, take it home with me, read it over and over again as many times as I wanted.
For some, this will only add another layer to the multi-faceted conspiracy theories about how all lawyers are in collusion and the system is out to get them.
This really is a true “compromise”. The new rule will benefit many, many defendants by providing automatic discovery of all documents in the State’s possession, but at the cost of risking the tenuous relationship between many others and their lawyers.
Do the benefits outweigh the costs? How is it done in your state?