Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
A Delicate Task: Talking to Prosecutors About Prosecutorial Misconduct
August 13, 2010
John and I lectured for two days this week for the New York Prosecutors Training Institute. Our hosts have been wonderful and gracious but Syracuse was just as hot as Northern Virginia. And it's straight uphill to get to the law school!
Our primary mission was to talk about Ethics and E-Discovery, which mean ttackling the subject of prosecutorial misconduct. Honestly, there is not much to be found specific to this kind of misconduct in the e-discovery world. Here are a couple of real-life stories that we told:
In one case, law enforcement took a chat log (between a young teenage girl – a law enforcement officer of course – and someone seeking sex with young girls) and cut and pasted from the chat log into a Word document. Never a good idea, because this is obviously not the 'best evidence" and it lends itself to the temptation of altering or excluding portions of the evidence. In this case, it was clearly not the full chat log – material had been removed, presumably something that might have helped the defense. The log had obvious holes where cuts had been made. When asked for the original evidence, the claim was that the hard drive the evidence was on had failed and had been discarded. Somehow, this didn't seem very credible. The case was thrown out, as well it should have been.
In a murder case, John found evidence on a computer that a camera and a scanner had been attached to the victim's computer. When asked in court why those items had not been provided to the defense, the prosecution represented that it had examined the evidence and determined it not to be relevant. This proved to be a blatant lie. The curious thing was WHY the prosecutor chose to lie since the evidence, once obtained upon order of the court, supplied a motive for the murder. The victim had taken photos of the defendant and then used the scanner to produce posters advising local merchants that the victim was a shoplifter. The defendant was thereafter found guilty. The right result, but certainly a failure to be truthful with the court.
One of biggest controversies regarding prosecutors and e-discovery today is "open file access" – where the prosecutor gives defense counsel full access to his/her case file. These days, that often results in a large volume of electronic data being turned over. The claim is that this satisfies the Brady requirement that all exculpatory evidence be provided to the defense. In the electronic era, this is equivalent to providing defense counsel with a haystack and inviting counsel to discover the needle. So far, courts, even the U.S. Supreme Court, have allowed this tactic, though I believe it often violates the spirit of Brady. If electronic data is turned over, it seems to me that the "Brady evidence" should be noted in a cover letter or in a file index. Some courts have noted that the result might be different if it is clear that the evidence is padded with irrelevant material. Respectfully, I think the spirit of Brady requires more specificity to ensure that justice is done.
It seems as though Brady evidence will often remain hidden from counsel in a data dump and that data dumps are likely to proliferate as a way of making the Brady material more difficult to discover.
Thanks to the many prosecutors we met on the streets of Syracuse who stopped to say how much they enjoyed the presentations (even if we DO primarily work for defense counsel). And if you are ever in Syracuse, try Francesca's Cucina – great Italian food.
Listen to the Podcast
