The Adversarial System in Criminal Cases: Achieving Justice?

Jay Goldberg

11-17-2005


The recent decision of the U.S. Court of Appeals for the Second Circuit in United States v. Yakobowicz1 raises issues that are fundamental to the administration of criminal justice that go well beyond the precise question decided by that court.

It held that in criminal cases it is prejudicial to require interim jury summations. The reason the court so held is that there is "limited discovery by defendants in criminal cases whereas the prosecution has grand jury subpoenas at its disposal. The government generally has, therefore, a clearer vision of the entire case than the defense . . . ." The court further stated that the defense has an "informational disadvantage," therefore it is unfair to require the defense to set forth its opposition to the points made by the prosecutor.

In civil litigation it is required that there be mutual disclosure of each party's evidence. This is based on the belief that mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. Justice Robert H. Jackson wrote that the adversarial system is best suited for civil litigation.

The Issue

The question remains whether the adversarial system as applied in a criminal case, is best suited to serve the ends of justice. We posit that it is not. The adversarial system is founded on the long-held belief that when opposing sides are before a jury, each will be in a position to put forth their side of the case in order to benefit the jury in its fact finding function. Justice Lewis F. Powell wrote "the adversarial system is best suited to advance the public interest in truth and fairness."2

The framers of the Declaration of Independence specifically noted the objection by colonists to the longstanding deprivation of trial by jury, labeling it as an intolerable act committed by the King. When the proposed Constitution was debated, delegates expressed the need for an accused to have the protection of an informed jury against the actions of an overzealous prosecutor and a compliant judge.3

Only an informed jury is in a position to render a just verdict. Too often, when the prosecutor withholds evidence the defense is unable to effectively contradict proof the prosecution presents to the jury. If the prosecutor is in possession of material covered by Brady v. Maryland,4 but chooses not to make it available, then not only is the defense prejudiced, but the jury is deprived of information it should have.

Courts in the U.S. District Courts for the Southern and Eastern Districts of New York, in particular, leave to prosecutorial authority the judgment as to what information an accused is entitled to receive. This deference may well be the result of the way justices of the Supreme Court have long characterized the role of the prosecutor as compared with that of defense counsel.

Prosecutor Holds Special Place?

In Berger v. United States,5 a unanimous court wrote that the prosecutor held a special place in the administration of criminal justice. It was the prosecutor's function, wrote the court, not merely to "win a case, but [to insure] that justice shall be done."

Justice Byron White characterized the conduct of a defense lawyer as having no obligation whatsoever to present the truth. If obfuscating the truth be in the client's interest, defense counsel can put the government's case in the worst possible light regardless of what counsel knows to be the truth. "[A]s part of our adversary system . . . we countenance conduct which in many instances has little, if any, relation to the search for truth."6

If this distinction is not lost upon jurors, it is likely to affect the way judges weigh a prosecutor's representation, whether it be in the area of discovery or otherwise. There is no clearer example of how courts defer to the prosecution than the way the Brady obligation is dealt with.

When Brady was decided, the defense bar believed that the "sporting theory of justice" was at an end. Following that decision in 1963, it was believed that on demand the defense could obtain exculpatory material from the prosecutor. Closely following Brady was Giglio v. United States7 requiring the turnover of impeachment material. Brady together with Giglio were believed to be major steps in leveling the playing field. However, that optimism was short lived when in 1976 the Court decided United States v. Agurs.8

Over the past 30 years the Supreme Court so modified the Brady/Giglio rule that hardly any of the principles that the bar believed these cases stood for remain. Prosecutors are not required to make available information which would equalize the information possessed by advocates in the adversarial process. Difficult as it may be to comprehend, today the prosecutor alone has the authority to make a "prediction," prior to verdict, as to whether a reasonable probability would exist that the outcome of the trial would be different were the material not withheld.9

Claimed Brady violations are considered by an appellate court only post-conviction. Completely devoid of any question of the good or bad faith of the prosecutor, the reviewing court determines whether the prosecutor's "prediction" was correct. That is, had the disclosure been made would there have been a different verdict. Since such an analysis follows only after a jury renders a guilty verdict, courts more often than not may well be disposed to rule that the withheld evidence probably would not have affected the outcome of the trial and therefore there was no Brady violation. That being so, the element of materiality is lacking and there would be no "Brady" violation.

This approach not only does damage to the ability of an accused to have fully prepared counsel, who may make effective use at trial of withheld evidence, but it deprives the accused of decision-making by the jury for that body is constitutionally charged with the role of deciding the effect of evidence or the lack thereof.

Undue Power

To allow prosecutors to have the power to withhold evidence, perhaps relying on a belief that the appellate court would not likely overturn a conviction after trial, is to place undue power in the hands of the prosecutor.

Law reports are rife with instances of purposeful acts of prosecutorial misconduct involving suppression of evidence. Suppression of evidence is the leading cause of wrongful convictions. In 1994, a then-district court judge, now sitting on the Court of Appeals, fined (the fine later set aside) the United States Attorney for the Eastern District of New York, for what the court believed was an endemic problem in failing to honor the Brady/Giglio obligation.10 Coppa provides a mechanism for courts to alter the approach to the government's Brady/Giglio obligation. The court stated that trial courts retain the power to establish standing rules with respect to the turnover of exculpatory and impeachment material as part of "sound case management." However, virtually none of the district courts in the Southern and Eastern Districts of New York has taken the reigns in order to control the decision-making of prosecutors. It is a common refrain by trial judges that their hands are "tied" by Coppa and as a result all must be left to the judgment of the prosecutor. That is just not so.

Other federal judicial districts, such as the District of Massachusetts, provide a standing rule binding on all judges in the district which sets forth both the nature of the material to be disclosed and the timing of the turnover.

In virtually every case where the prosecution makes use of a cooperating witness who has a criminal record, Brady/Giglio exists. This is so, because the practice in every prosecutor's office is that, before using such a cooperating witness, the witness is required to inform the government of any and all crimes the witness committed so that the government can adequately prepare the witness. It is a verity that such information constitutes Brady/Giglio material. Let us examine the way this is dealt with in post-Coppa cases.

In the case of United States v. Underwood,11 a highly regarded trial court was to commence a 20-defendant narcotics trial. Given the likely cast of cooperating witnesses in a case of this kind, there would have to be a great deal of Brady/Giglio material. At a motion session, the court nonetheless expressed its satisfaction that: "The government has made a good faith representation to the court and defense counsel that it recognizes its disclosure obligations under Brady, [and] that currently no Brady material exists . . . ." Courts repeatedly accept without more the government's representation that it is "well aware of its Brady obligation."

As earlier noted, a trial court wrote that in light of past errors in judgment, the blanket assurance by the government would no longer be accepted given that constitutional rights were involved.12

The Challenge

The challenge is simple: what has happened in the past 31 years that gives confidence that prosecutors have changed, if you will, and more readily accept their role to see that justice is done? What distinguishes prosecutors from the Southern and Eastern Districts of New York from those of the District of Massachusetts? The standing rule in the federal district courts in Massachusetts, followed a careful study and report by members of the bar and the judiciary which concluded that in matters of Brady/Giglio discretion could not be left to the prosecution. Close to half of the federal judicial districts have rules that accord with the District of Massachusetts. Still, the Southern and Eastern Districts remain silent with no standing rule.

It is not only in the Brady/Giglio area that prosecutors are permitted to exercise their authority in such a way as to prevent defense counsel from conducting an adequate investigation both for the benefit of the accused and for the jury. For example, prosecutors often identify the borrower of funds from a "loan shark," this in violation of 18 USC §892, as "Victim 1." They refuse any identification of the person. How such a practice advances the search for truth, if defense counsel is called upon theoretically to investigate one among the billions of people, is of course impossible to fathom. Still prosecutors press to their "right" to so designate the borrower.

It was not too long ago, when counsel inquired of a judge as to how the defense could prepare for trial with this failure of identification, only to be met with the response "why don't you ask your client?" The adversarial system simply cannot function with courts countenancing an informational advantage to one side, founded perhaps on the view that the presumption of innocence is more imagined than real.

Criminal Procedure Rules

The defense bar believed that with the passage of the Federal Rules of Criminal Procedure the demand for particulars under Rule 7(f) held promise that an accused would be furnished with details of the charges so that they would be able to prepare a defense and present it to the jury.

Despite high hopes, courts routinely deny demands for particulars, leaving the defense without needed information. An accused is bound at trial by out-of-court statements of co-conspirators and aiders and abettors. However, the identities of such persons are not likely to be furnished until the trial is under way.

The framers of the Federal Rules of Evidence, sought by Rule 806 to provide an effective way for an accused to be able to impeach an out-of-court declarant just as though the declarant were testifying in court. The rule had a laudatory purpose. However, if the identity of the declarant is not made known until the trial is under way, it is virtually impossible for the defense to be able to conduct the kind of investigation essential to provide the jury with facts that bear on the declarant's credibility, and so Rule 806 is rendered nugatory. Nonetheless, courts still deny demands which pretrial seek the identity of such persons.13

It is enough for prosecutors to frame allegations of criminal conduct as having occurred "in or about" a certain month. As to the allegation of where the conduct occurred, it is sufficient to recite that it happened in the Southern or Eastern District of New York. However, the defense must be in a position to present its evidence to a jury, but they can only do so if furnished with these particulars so that the accuracy of the charges can be determined. The standard response of courts to a demand for particulars in that regard is that a bill of particulars is not a discovery device and an accused is sufficiently apprised of the charges when the indictment tracks the language of the statute and approximates the time of the claimed offense and judicial district where the alleged crime was committed.14

No Justification

There is, we submit, no justification to deny the defense such particulars given, the informational advantage prosecutor's have.

Under the Federal Rules of Evidence Rule 404(b), the government may offer evidence of prior bad acts to demonstrate, among other things, motive, intent, preparation, plan or absence of mistake or accident. Such evidence cannot be offered if its sole purpose is to show an accused's propensity to commit the crime charged. An accused may find that while there is a modest amount of discovery with respect to the crime charged, there is no discovery permitted with respect to the other crimes evidence. Reasonable notice as to the general nature of any such crimes is all that is required.15

As a result the accused is kept in the dark as to specific alleged crime the government will prove and, certainly, without the ability to investigate the accuracy of the government's other crimes evidence. This impacts directly on the role of the jury. If the defense is unable to bring forth proof that would lead a fact finder to reject the testimony as to other crimes, all by reason of lack of sufficient time to prepare, the jury is deprived of information that it must have.

Aside from 404(b) proof, there are as we have noted, statutes that permit the government to offer proof that there were "victims" other than the one referred to in the indictment. Here too, courts routinely deny particulars as to the identity of those "other victims" and the accused has to wait until the witness door opens before he learns the identity of the supposed "other victims."

A glaring example of what the jury should not have, but the prosecutor eagerly makes available to all, is a government document which is not bona fide, but a stratagem to blunt cross-examination of government witnesses. For example, if the government intends to use a witness with a long criminal record, the witness pretrial will sign an agreement which provides that unless his testimony is truthful, the witness can be prosecuted for all crimes the witness committed. Post-trial interviews of jurors find this cooperation agreement compelling on the theory that the witness would not risk lying for then she would face prosecution for everything she has done. Every trial judge permits the jury to have this document during deliberations. Yet, it was conceived by a United States Attorney's Office in conjunction with a witness' attorney and never intended to be enforced, but only to be used to buttress the witness' testimony. No witness, later found to be lying, has ever been so prosecuted, except for the crime of perjury. A proper hearing would reveal the gross manipulation of the jury. However, no judge has seen fit to order such a hearing.

Throughout a criminal proceeding, courts resolve disputes as to what prosecutors need to turn over and what the defense is entitled to. Never is a word said about what the jury may need or how the information could be of assistance to the jury. In short, the jury is all but forgotten in the contest between counsel.

Conclusion

There must be a remedy for the disparity in the ability to gather information. As we began, we urge that the Southern and Eastern Districts of New York adopt "open file discovery" to insure equal access to information. In addition, there is no reason that justifies the way the trial courts in the Southern and Eastern Districts deal with Brady/Giglio disputes. Trial courts should not simply accept the government's "good faith representations." A reading of the Massachusetts study leaves no room for doubt that there must be a standing rule as to the Brady/Giglio obligation. Coppa, extended that authority to trial judges, but it has been ignored.

In the end, justice, as a learned member of the Court of Appeals wrote, "is still the main business of a court." That goal eludes us by the unbending application of the adversarial system and the willingness to repose full and complete confidence in the prosecutor.

Jay Goldberg is a principal in the Law Offices of Jay Goldberg.

Endnotes:

1. 2005 WL 2605007 (2d Cir. Oct. 14, 2005)

2. Polk County v. Dodson, 454 US 312, 318-319 (1981)

3. Duncan v. Louisiana, 391 US 150 (1972)

4. 373 US 83 (1963) (exculpatory material)

5. 295 US 78 (1935)

6. United States v. Wade, 388 US.218, 256-258 (1967)

7. 405 US 150 (1972)

8. 427 US 97 (1976)

9. United States v. Coppa, 267 F3d 132 (2d Cir. 20001)

10. See United States v. Prince, 1994 WL 99231 (EDNY)

11. 2005 WL 927012 (SDNY)

12. See United States v. Deutsch, 373 FSupp 289, 290 (SDNY 1974)

13. United States v. Tripp, 171 FSupp2d 230, 240 (SDNY 2001); United States v. Rheinhold, 994 FSupp 194, 200-201 (SDNY 1998); United States v. Torres, 901 F2d 205, 233-234 (2d Cir. 1990).

14. See e.g. United Stated v. Needham, 2004 WL 1903061 (SDNY); United States v. Gallo, 1999 WL 9848 (SDNY); United States v. Rittweger, 259 FSupp2d 279 (SDNY 2003); United States v. Nachamie, 91 FSupp2d 565 (SDNY 2000)

15. See United States v. Russin, 889 FSupp 1034 (N.D. Ill. 1995); United States v. Stoecker, 920 FSupp 876 (N.D. Ill. 1996)