Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 3, #9©

Issue: Defense counsel's interview notes with defendant

ONE of the best known rules in New York criminal law is the Rosario rule. Embodied in the CPL's discovery article, this requires the prosecutor to provide the defense with prior statements of a prosecution witness relating to the subject of that witness's testimony. People v Rosario, 9 NY2d 286, 213 NYS2d 448 (1961).

Along with the Rosario rule is a "reciprocal Rosario" rule: prior statements of defense witnesses must be turned over by the defense to the prosecutor. The reciprocal rule's genesis was in People v Damon, 24 NY2d 256, 299 NYS2d 830 (1969). CPL 240.44 and 240.45 codify the holdings of Rosario and Damon.

Thus, if a defense witness testifies at a hearing or trial, prior statements in the defense attorney's possession must be turned over to the prosecution. At a hearing, the turnover is upon request (CPL 240.44); at trial, they must be turned over regardless of request (CPL 240.45).

But what if it is the defendant who testifies? Does the reciprocal Rosario rule oblige the defense to turn over statements and notes made by defense counsel?

Plainly not. Turning over notes of interviews with the defendant violates the Code of Professional Responsibility. It is inappropriate for a prosecutor to request such documents from defense counsel.

There are several sources for this rule, but it is bottomed in the attorney-client privilege, CPLR 4503. Additional bases are the Fifth Amendment right against self incrimination, the 6th Amendment right to effective assistance of counsel, the Code of Professional Responsibility and CPL article 240.

In People v Shapiro, 308 NY 453, 459-460, 126 NE2d 559 (1955), the Court of Appeals stated:

When the client, especially one accused of crimes, asks for advice and guidance in the premises, he should be able to speak freely without any fear and in full confidence that what is said by him or to him by his attorney will not be subsequently subject to disclosure if he takes the witness stand during the trial of his case. Any other policy than strict inviolability, unless expressly waived, would seriously hamper the administration of justice, for the client would perhaps refrain from telling the truth or withhold the truth, while the lawyer would be reluctant to give the correct advice and counsel if he thought it would be subject to disclosure in the event his client took the stand to testify in his own behalf. It is for these and other reasons that the rule against disclosure is of such importance and that it may not be waived except as the statute [Civil Practice Act § 353, now CPLR 4503] provides with ‘the express consent' of the client. . . .
We believe that it was wrong to permit interrogation of this defendant witness on what took place between him and his attorneys.
Our attention has not been called to any New York cases holding that a privileged communication is waived when a person takes the stand in a criminal case. In logic and reason a distinction should be made between the waiver deemed to have been made when the defendant witness is interrogated on the issue of his guilt and the rules of evidence relating to privileged communications between himself and his attorney, the disclosure of which would serve to assure the prosecutor a verdict of guilt.

Article 240

Article 240 of the Criminal Procedure Law governs discovery. In addressing the defense obligation to turn over documents as discovery, article 240 at several points refers to witnesses "other than the defendant." See, e.g., CPL 240.30(1)(a), 240.44(1), 240.45(2)(a).

In the original "reciprocal Rosario" decision, People v Damon, following Rosario, the Court of Appeals required the defense to provide the prosecution with statements obtained from defense witnesses. Damon involved not the defendant's statements, but statements from other witnesses:

These statements were not those of the defendant but of witnesses offered by the defendant. In no sense can it be said that he is being compelled to produce incriminating statements of his own. The privilege against self incrimination applies only to evidence of a testimonial or communicative nature obtained from the defendant himself. . .. 24 NY2d at 261.

It is improper for a prosecutor to question a defendant about statements made to the defense attorney. People v Glenn, 52 NY2d 880, 437 NYS2d 298 (1981); People v Ali, 146 AD2d 636, 536 NYS2d 541 (2d Dept 1989). Similarly, there is no obligation to turn over statements that the attorney's staff or investigator takes while interviewing the defendant. People v Drayton, 198 AD2d 770, 605 NYS2d 723 (4th Dept 1993); People v Chmiel, 124 AD2d 1033, 509 NYS2d 214 (4th Dept 1986) (harmless error). Handling a Criminal Case in New York, § 8:27 (West Group 2000).

Work product

The work product of attorneys and their staffs is generally exempt from disclosure. Hickman v Taylor, 329 US 495, 67 S Ct 385 (1947); Adlman v US, 134 F3d 1194 (2d Cir 1998). But where a prosecutor meets with witnesses, any interview statements must be disclosed. People v Consolazio, 40 NY2d 446, 387 NYS2d 62 (1976). This limitation on the work-product doctrine similarly requires the defense to turn over interview notes of witnesses called at hearing or trial. Application of this to both prosecutors and defense attorneys verges when it comes to a defendant's statements: after all, the defense attorney has a client; the prosecutor does not. Handling, § 1:73.

Whether at a hearing or at trial, attempting to obtain privileged information is improper. At a hearing, disclosure of notes might reveal information regarding various aspects of the case, whereas the scope of any pretrial hearing is limited. See, e.g., People v Blackwell, 128 Misc2d 599, 490 NYS2d 457 (Sup Ct 1985) (Huntley hearing, defendant's testimony is limited to voluntariness issue). At trial, raising the issue before a jury is prejudicial. The Court of Appeals has noted that whenever the prosecutor would be requesting the defendant to produce evidence that is arguably privileged, the request should always be outside the presence of the jury. People v Damon, 24 NY2d 256, n. 2.

Requiring a defendant who takes the stand either at a pretrial hearing or at trial to disclose discussions with counsel, or to require the defense attorney to disclose those discussions, impinges on communication twice: first, at the time of the confidential disclosure; second, at the time of testifying. A defendant who knows that the price of taking the stand is that previously confidential statements will be disclosed may well decide to forego testifying.

'"Zounds! I was never so bethump'd with words
Since I first called my brother's father dad."
King John, II, 1, 466


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