Friday, January 31, 2014

The Obligation of a Defendant in New York to Provide Discovery

Jill Paperno, author of

Representing the Accused: A Practical Guide to Criminal Defense

Sometimes we're so busy focusing on getting discovery and subpoenaed documents, we forget about our own discovery obligations.  What do we have to give and when do we have to give it?  Even experienced defense attorneys are sometimes confused by the rules.  Of course, if you've got a great statement from a complainant about how they lied about everything, feel free to give it to the prosecutor if you think it will resolve your case.  (But if the only thing that will happen is that the prosecutor will threaten and bully the witness, keep it in your pocket until you are required to disclose.)
This topic came up recently in a friend's trial, when the prosecutor asked defense counsel for the statement defense counsel's investigator had taken from the complainant.  It reminded me of a case I had years ago when the prosecutor asked me for all of the family photos I had collected for use in a sex offense trial. 
 So what do we have to turn over, when do we have to turn it over, and what do we do when the prosecutor's request or demand goes beyond what they are entitled to.
 First - what do we have to turn over?
 Defense discovery, like prosecution discovery, is governed by Article 240 of the Criminal Procedure Law.  As with the prosecutor's discovery obligations, our obligations vary depending on the stage of the proceedings.  For felonies, the obligations must be considered from the time of the PH (Preliminary Hearing).  The next stage is following a prosecutor's demand.  Then hearings, then trial.  For misdemeanors, other than the PH, the stages are the same. 
 Because you have to turn over statements of witnesses, whether signed or written by your investigator (or you), you must make conscious, strategic decisions about whether you want to take a statement or have your investigator take notes, or instead simply remember what was said.  There are pros and cons to each:
 Factors favoring preserving witness statements in writing or by some form of recording:
 If an investigator has spoken with the witness, and it was a while ago, the investigator may forget inconsistencies that arise in court proceedings;
 A witness may be better able to deny a prior statement that was not preserved;
 An investigator may appear less professional when testifying if there are no notes about the witness's statement;
 If the witness is frail, or a child, you may want to "show how it's done" to the jury and demonstrate that your questions didn't confuse the witness or trick them in some way (in contrast to those prosecutor witnesses) as you record and ask non-leading questions if the video becomes necessary at trial.  I've done this in sex offense cases, first vetting the questions with a mental health professional, and making sure my tone, body language and questions, as well as the setting and circumstances of the child, are all appropriate.
 On the other hand:
 The greatest concern defense counsel have in preserving statements of witnesses, especially favorable ones, is that we are creating prior inconsistencies that can be used against them at a later date.  We revel in the opportunity to cross on prior statements and testimony of opposing witnesses.  Why give the prosecutor that tool?  Even those who tell the truth are likely to say something different on a later date.
 Once a statement has been preserved, you have to keep it and turn it over.  If a defense witness's version becomes more favorable over time, and you put the witness on, you still have to turn over the more damaging version, which will be used by the prosecutor to undermine your witness's version;
If the witness testifies early in the case (less common), the prosecutor may learn of your defense or key strategy and you can lose the element of surprise.  For example, if an investigator who took witness statements testifies at a hearing about measurements, you may have to turn it over.  (Although the statute limits disclosure to material "which relates to the subject matter of the witness's testimony" don't bank on winning the argument that the notes of the witness statements don't relate.  Some judges allow prosecutors to avoid turning over certain documents at hearings on this ground, but I'm not usually feeling that lucky.)
 My general rule of thumb is to get written notes or statements from prosecution witnesses, since it's not likely those notes will damage my case, to take statements from favorable witnesses who may become unfavorable in the future - on-again-off-again girlfriends or boyfriends, for example, and no statements from solid, favorable witnesses.  ( I may jot some things down in trial preparation as work product.). If I do take notes during a witness interview, I use abbreviations and my sloppiest handwriting - which is pretty sloppy.  I have to turn it over but I don't have to interpret it.  Sometimes during witness preparation I just write down the questions I will ask the witness, based on our discussion.  I let them know that's what I'm doing so if asked, they'll know I wasn't taking notes.
 Remember - your experts' raw notes are also subject to discovery.  Let them know this when you first meet so they don't make stupid doodles or inappropriate comments on their notes.
 You must also remember your clients' statements are protected by privilege(as long as you didn't meet with third parties during your conversations) or whether your information is work product.  Neither has to be disclosed but the records or notes must meet certain criteria to qualify and thus be exempt from disclosure.
 So what has to be turned over at a hearing?  And when?
 First take a look at 240.44 -
 § 240.44 Discovery; upon pre-trial hearing.
Subject to a protective order, at a pre-trial hearing held in a criminal court at which a witness is called to testify, each party, at the conclusion of the direct examination of each of its witnesses, shall, upon request of the other party, make available to that party to the extent not previously disclosed: (emphasis added)
 As you can see, the statute says you don't have to turn it over unless requested by the prosecutor, and until the conclusion of your direct.  But the same rule applies to the prosecutor.  Do you wait?  Do you fail to turn it over unless requested?  This depends, I think, on where you practice, how your opponents operate, and what kind of reputation you want to develop.  Where I practice, it is expected that counsel will provide prior statements of the witness (also referred to as Rosario material, see People v. Rosario) without request.  Failure to do so would be perceived as sharp practice, and if you're caught - say you don't turn it over, the judge asks if Rosario has been provided and you say, "No, but they didn't ask", you will develop a reputation for being sneaky even though you were technically correct.  And wait to see what happens the first time you forget to ask.  And you will.
 As for timing, the prosecutors where I practice uniformly provide Rosario before the hearing so you don't have to waste time in the middle of the hearing recessing to read it.  If I know I am calling witnesses, I provide mine at the beginning of a hearing unless there is a strategic reason to wait - like the prosecutor may show the notes to a witness who might tailor their testimony.  If I don't know if I'm calling a witness I wait till just before my direct.  (I will forget right after cross and the judge will get irritated - to me, it's just not worth it.)
 So what has to be provided at the hearing? CPL 240.44:
 1. Any written or recorded statement, including any testimony before a grand jury, made by such witness other than the defendant which relates to the subject matter of the witness's testimony.
2. A record of a judgment of conviction of such witness other than the defendant if the record of conviction is known by the prosecutor or defendant, as the case may be, to exist.
3. The existence of any pending criminal action against such witness other than the defendant if the pending criminal action is known by the prosecutor or defendant, as the case may be, to exist.
 Some prosecutors claim they don't know of prior convictions or pending actions in an effort to avoid having to turn material over.  So get that information yourself, feign ignorance, and make it bite them in the tuchus.  But don't put yourself in that position - is it really worth not knowing about your witness's priors, when the prosecutor will certainly learn of them, and you will not have had the chance to voir dire on them, or question on direct, or even decide not to use the witness?
The Discovery Demand
 After arraignment on a misdemeanor accusatory instrument, or an indictment, defense counsel may (and if you ask me, must) file a discovery demand.  And so can the prosecutor.  
On a felony, there is no right to file a demand for discovery until after indictment.  CPL 240.30(1) does not authorize discovery on a felony complaint.  Thus, there is no right to statutory discovery while the felony case is in local court, unless there is a hearing as discussed above.
 The CPL requires the defense to turn over discovery pursuant to a demand as set forth in CPL 240.30.  CPL 240.80 sets forth the period in which a demand must be made.  If you do not wish to comply, that statute sets forth provisions for opposing the demand.  Otherwise you must comply within 15 days.
 What must be turned over?  CPL 240.30 answers that question. 
 (a) any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test, experiment, or comparisons, made by or at the request or direction of, the defendant, if the defendant intends to introduce such report or document at trial, or if the defendant has filed a notice of intent to proffer psychiatric evidence and such report or document relates thereto, or if such report or document was made by a person, other than defendant, whom defendant intends to call as a witness at trial; and
(b) any photograph, drawing, tape or other electronic recording which the defendant intends to introduce at trial.
 As you can see, discovery obligations are fairly limited with important caveats.  Subdivision (a) only requires disclosure if the defense intends to offer the records at trial, if there will be a CPL 250.10 psychiatric defense, or if the report was prepared by someone you will be calling at trial.  Often we explore psychiatric defenses but elect not to use them.  THOSE RECORDS DO NOT GET TURNED OVER.  Additionally, if you do not know if you are calling a witness at trial, do not turn over the records until you are sure.
 As for subdivision (b), if you know you are using these items at trial, by all means turn them over.  But if your use depends on what happens during the prosecution case, then you do not have to. 
 For pre-trial hearings, go back to CPL 240.44.  For trial you must comply with the discovery requirements of CPL 240.45(2), which does not require disclosure until the conclusion of the prosecutor's direct case.  That statute is similar to the hearing statute.
 So what do you do when the prosecutor asks for all of your photos, and you do not intend to offer them?  Just say no.  We all want to be liked, so it might be hard to say no.  Maybe easier if you're a parent.  But you don't want to give the prosecutor anything that you don't have to, especially if it might hurt your case.  You can say "no" with a smile if you like, but they still may not like you.  What if the DA asks the judge to order you?  In my case, the judge looked at me and asked if I was going to give the prosecutor the photos.  I said I wasn't using them (I''d already turned over the ones I was using) and said no.  The judge looked at the prosecutor. The prosecutor requested he order me to turn them over, and the judge said no.
 Similarly, the attorney in the recent trial, when the prosecutor asked for the complainant's statement recanting, as given to her investigator, she politely declined.  (Never turn that over at trial if you are not legally required to - they had their chance to do the right thing.) And the judge did not order her to provide it. 

Sunday, January 12, 2014

Subpoenas and Social Websites

Jill Paperno, 
author of
Representing the Accused: A Practical Guide to Criminal Defense

The subject of subpoenas used to obtain records (duces tecum) is one that you can spend a career trying to master, and never quite get there.  Among the questions you may have to consider when issuing subpoenas are the following:
Can you issue on your own authority or do you have to prepare a judicial subpoena duces tecum?
Do you have to give notice to the other side or third parties?
Do you have to file a motion?
Are there specific laws that govern the type of records you are seeking - medical, mental health, Child Protective, etc.?
Is there specific language that must be used or a specific showing in your application or motion?
Is an order required in addition to the subpoena?
Can you apply ex parte so as not to alert your opponent to the defense theory?
If the material is considered discoverable, can you get it by subpoena?
Does the prosecutor have standing to object?  (Just because they have notice doesn't mean they have standing.)
Where must the materials be sent?
Are they properly certified so the records will be admissible if necessary?

If the prosecutor is trying to subpoena records, in addition to some of the above, there are other issues to consider when trying to prevent issuance of subpoenas:

Do they have the authority to get those records?
Must they be on court order?
Does the defense get notice?
Does the defendant have standing to object?
Does compliance with a prosecutor's subpoena for your client's records violate a privilege?

The answers to these questions will vary from jurisdiction to jurisdiction, but there are some areas that we must all become familiar with no matter where we practice.  One increasingly important area is social media content and metadata.  How many times have we wanted to obtain and introduce the Facebook posts of a complaining witness, or prayed the prosecutor wouldn't see our clients' pages, replete with photos of weed and guns?

If our clients' Facebook entries and Twitter tweets are communications between family and friends, isn't there a Fourth Amendment privacy issue? The following is a (non-exhaustive by any means) discussion of this burgeoning area of law.
There is a federal statute, the Stored Communications Act (SCA), that governs disclosure of social media information.  Based on this law, these companies will not comply with non-judicial subpoenas for certain social media information.  We must become familiar with it, both to obtain records and to oppose the disclosure of our clients' records.  The law distinguishes between newer and older communications, and whether the material sought is content, or the information relating to times, dates, recipients, etc. (metadata).  (Although we easily understand the importance of content, metadata can be very informative too.  For an interesting short lecture on the significance of metadata, see "The Power of Metadata", a Ted talk that can be found on youtube.)

The SCA, 18 U.S. Code Sections  2701 et. seq., governs disclosure by providers of communication services to the public.  For an in-depth discussion of its history and interpretation, see "Discovering Facebook: Social Network Subpoenas and the Stored Communications Act", Harvard Journal of Law & Technology, Volume 24, Number 2 Spring 2011.

Section 2703 addresses disclosure of information through subpoenas and search warrants.  This statute was written years ago, well before social media became commonplace.  So its application has required courts to interpret and reinterpret the law.  The statute distinguishes between information held on an RCS (Remote Computing Service) and ECS (Electronic Communication Services) -  RCS's being entities that store information and ECS's being entities that provide services that enable communication. Some providers may be considered both.

Seeking records

Section 2703(f) requires that an entity that is subject to this law must preserve information upon request of a governmental entity.  The statute (Section 2711) defines governmental entity as "a department or agency of the United States or any State or political subdivision thereof."  Does this mean defense counsel cannot obtain the records?  Maybe we can get a court to order the prosecution to subpoena.  But more often, we will have to go after it.  As defense counsel, we will have to raise the arguments we raise when seeking other records protected by statute, that the constitutional rights trump statutory protections.  (See, e.g., Davis v. Alaska, 415 U.S. 308 and Pennsylvania v. Ritchie 480 U.S 39.)  In the George Zimmermann prosecution, the trial judge granted defense subpoenas for social media records of Trayvon Martin and his girlfriend.  So it can be done.

In U.S. v. Zhuta, 2011 WL 1330855 (W.D.N.Y.), 2 (W.D.N.Y.,2011) Magistrate Judge Hugh Scott denied defendant's numerous subpoenas, including social media subpoenas, without prejudice and without reference to the SCA, instead considering constitutional grounds. But the case did not squarely address a defendant's rights to the material.  We will have an uphill battle as we litigate these cases.  We will have to urge courts to find that our clients' constitutional rights to Due Process, Fair Trial, Confrontation and Compulsory Process under the U.S. Constitution (and your state's parallel state constitutional rights) mandate disclosure.

In "Social Media Evidence in Criminal Proceedings - An Uncertain Frontier", at, Justin Murphy and Adrian Fontecilla highlight the issues and arguments we will be facing and making.

For some suggestions on how to obtain records by request, (remember metadata?), take a look at "Obtaining Records From Social Networking Websites",

Opposing subpoenas

In Crispin v. Audigier a California District Court, citing two other federal court decisions, found the party whose records were sought had standing to contest the subpoenas. 

At least two district courts have concluded that individuals have standing to move to quash a subpoena seeking personal information protected by the SCA. In J.T. Shannon Lumber Co., Inc. v. Gilco Limber, Inc., Civil Action No. 2:07CV119, 2008 WL 3833216 (N.D.Miss. Aug. 14, 2008), the district court found that because the documents sought by the plaintiff are the personal documents and the details of the email accounts of the defendant employees, the defendants have standing to seek to quash this subpoena as they have a personal interest in the documents sought from the internet service provider. Id. at *1. The court finds J.T. Shannon Lumber persuasive. Specifically, it concludes that an individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and bank records.

Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 974 (C.D.Cal.,2010)

Other courts have ruled there is no third party standing.  See, e.g. People v. Harris, 36 Misc. 3d 868.

Interestingly, the SCA does provide a basis for opposing subpoenas related to your client.  If you learn of the subpoena and have standing - another question addressed by some courts - you can argue the prosecution has not made the proper application requiring factual assertions and the assertions do not meet the legal standard  for disclosure under the statute:

(d) Requirements for Court Order. A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.

Additionally, the Sixth Circuit in U.S. V. Warshack 631 F.3d 266 held that despite the SCA, defendant Warshack had a reasonable expectation of privacy protected by the Fourth Amendment, and the release of emails pursuant to the SCA without a warrant based on probable cause violated the defendant's Fourth Amendment rights (though the Court found that the police had a good faith basis to believe the search was lawful).

Other challenges may involve arguing a provider is not covered by the definition of the statute, and therefore issuance of subpoenas or search warrants pursuant to the statute was unlawful, and evidence obtained should be suppressed.  For a review of these (unsuccessful) efforts in one case, see U.S. V. Orisakwe, 2013 WL 4836084.

Friday, December 20, 2013


Jill Paperno, Second Assistant Monroe County Public Defender 
and author of  Representing the Accused: A Practical Guide to Criminal Defense

As described in an earlier post, the law provides guidance as to which decisions are made by a client and which are made by the defense attorney.  Decisions that are considered fundamental - generally those that are granted to a defendant by the Constitution, or cases interpreting the Constitution - are to be made by the client.  Ideally (and we should be striving for the ideal) those decisions are made after thoughtful, informed and considered review with counsel.  Decisions that are strategic are to be made by the defense attorney.  Ideally (yes, striving again) those decisions are made after thoughtful, informed and considered review with the client.

So which type of decision is the right to testify before the grand jury?  If it is a fundamental right we have to discuss it with our clients and they have to waive the right.  But day after day I see defendants appearing in court whose attorneys have never discussed grand jury testimony with them.  How do I know?  In some cases they are meeting counsel for the first time on a preliminary hearing date even though counsel was assigned before the grand jury date.  In the holding area they ask me, a lawyer they don't know, who their lawyer is.  When their case is called the prosecutor presents a grand jury certification to the court, so we know the case went to the grand jury without the client having been advised of grand jury rights.

The right to be prosecuted on an indictment is contained in the state constitution.  (The U.S. Constitution has been interpreted as not requiring indictment for prosecution on all felonies, so different states handle this issue in various ways - see And the New York state Constitution does not include the right of a defendant to testify - that is contained in the Criminal Procedure Law, section 190.50.  So this right looks different than some of the other rights we know are fundamental and are protected by the Constitution, and which only a client can waive.  And grand jury decision-making happens behind the scenes.  There is no judge asking for the client's decision or whether the client is aware of the right.  (But remember - the decision of whether to appeal is not in the Constitution and happens behind the scenes, and it is fundamental.)

There is a split among the attorneys I know about whether the right to testify before the grand jury is a fundamental right.  I believe it is for the reasons that follow.

The Court of Appeals has stated that it is not per se ineffective assistance for defense counsel to fail to facilitate a client's appearance before the grand jury.

This case is indistinguishable from People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845 (1996), where defense counsel arrived at the grand jury after the indictment had been voted. Indeed, until the indictment was handed down there was no felony charged. Here, defense counsel also failed to secure defendant's appearance before the grand jury In Wiggins, we held that failure of defense counsel to facilitate defendant's testimony before the grand jury does not, per se, amount to the denial of effective assistance of counsel. In this case, defendant failed to establish that he was prejudiced by the failure of his attorney to effectuate his appearance before the grand jury. Significantly, there is no claim that had he testified in the grand jury, the outcome would have been different.

People v. Simmons, 10 NY3d 946.

But there are cases that reverse convictions when defense counsel has failed to effectuate a client's desire to testify before the grand jury.  In a Kings County Court 2002 decision Judge  Reichbach noted the lack of clarity and guidance from the courts on this issue:

The initial question presented is whether, as a matter of constitutional right, the decision to testify before the Grand Jury is one that can only be made or waived by the defendant. This requires a determination as to whether or not a defendant's right to testify in the Grand Jury is a fundamental or constitutional one. Both the United States Supreme Court and New York's Court of Appeals have enumerated these decisions that are so fundamental that they can only be made by the defendant, not his attorney. The United States Supreme Court in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), noted that decisions such as whether to waive a jury, whether to testify at trial and whether to take an appeal are so fundamental that they can only be made by the defendant (citing ABA Standards on Criminal Justice, On Defense Functions, Standard 4–5.2 [Second Edition] ). In People v. White, 73 N.Y.2d 468, 541 N.Y.S.2d 749, 539 N.E.2d 577 (1989), New York's Court of Appeals likewise found that fundamental decisions include whether to plead guilty, whether to waive a jury trial, whether to testify on one's behalf and whether to take an appeal. The Court of Appeals in People v. Ferguson, 67 N.Y.2d 383, 502 N.Y.S.2d 972, 494 N.E.2d 77 (1986) indicated that this list was not exhaustive. The Court of Appeals has made it plain that the right to testify before a Grand Jury is not one of constitutional dimension, but rather a right provided by statute.   People v. Smith, 87 N.Y.2d 715, 642 N.Y.S.2d 568, 665 N.E.2d 138 (1996). While not of constitutional dimension, nevertheless the Court of Appeals has determined it to be a “valued” right, a “significant and substantial” right which must be “scrupulously protected”. People v. Evans, 79 N.Y.2d 407, 414, 583 N.Y.S.2d 358, 592 N.E.2d 1362 (1992); People v. Smith, 87 N.Y.2d 715, 720, 721, 642 N.Y.S.2d 568, 665 N.E.2d 138 (1996); People v. Corrigan, 80 N.Y.2d 326, 332, 590 N.Y.S.2d 174, 604 N.E.2d 723 (1992). While clearly, an attorney has the right to make day-to-day decisions governing a case, and those decisions will be binding on a client, People v. Jordan, 96 A.D.2d 1060, 466 N.Y.S.2d 486 (2nd Dept., 1983) there is apparently no New York authority indicating whether this significant statutory right to testify before the Grand Jury, once invoked, may be waived without the defendant's permission.

People v. Edwards, 192 Misc.2d 473, 475-76, 747 N.Y.S.2d 688, 690 (N.Y.Sup.,2002)

In a great summary of the law and conclusions to be drawn about whether a client gets to make his decision, Judge Reichbach, citing numerous cases, wrote:

Many cases hold that a failure by defense counsel to secure a client's right to  testify before the Grand Jury by failing to file a cross Grand Jury notice is not, by itself, ineffective assistance of counsel. People v. Sturgis, 199 A.D.2d 549, 606 N.Y.S.2d 241 (2nd Dept., 1993); People v. Bundy, 186 A.D.2d 357, 588 N.Y.S.2d 167 (1st Dept., 1992); People v. Otis, 186 A.D.2d 828, 589 N.Y.S.2d 816 (2nd Dept., 1992) .... On the other hand, appellate courts have found that subsequent to the filing of a cross Grand Jury Notice, errors by counsel which have the effect of precluding the defendant from testifying constitute ineffective assistance requiring dismissal of the indictment. People v. Jimenez, 180 A.D.2d 757, 580 N.Y.S.2d 393 (2nd Dept., 1992); People v. Lincoln, 80 A.D.2d 877, 436 N.Y.S.2d 782 (2nd Dept., 1981); People v. Moskowicz, 192 A.D.2d 317, 595 N.Y.S.2d 464 (1st Dept., 1993).

Judge Reichbach continued by setting forth his interpretation for the basis for these two seemingly inconsistent lines of cases, and reconciling them.  He found that the distinction was between cases in which a defendant's desire to testify had already been communicated to the prosecution, in which failure of counsel to act was clearly in conflict with a client's stated interest, in contrast with those where no such notice had been filed.  (But he also noted another court's seemingly accurate but differing conclusion that this rationale wold find it was worse to do half the job - serving notice but not following through - than no job at all.  And that makes no sense, right?) (For a review of factors leading a different court to conclude the decision is strategic, see People v. Cox, 2007 WL 5160499 (N.Y.Sup.), 4 (N.Y.Sup.,2007.))

So if failing to inform a client is not per se ineffectiveness, are we off the hook?  I don't think so, for a few reasons.

First, if the client has this right and we are striving to provide client centered representation, honoring our clients' rights to be involved in charting their course, it seems completely inconsistent to fail to advise them of this process and their right to participate in it.

Second, the statute clearly protects a client's right to testify before the grand jury. The decisions that fail to find ineffectiveness when a client claims the attorney did not enable him or her to testify before the grand jury seem to reflect that the issue was not preserved, or raised on the record below.  Of course it wasn’t – the client was not aware it was an issue or had to be raised.  Perhaps the client didn’t even know s/he had the right to testify. 

And in the recent Fourth Department decision, People v. Brumfield (Fourth Dept., Sept. 27 2013), the Court emphasized the importance of a defendant's right to testify before the grand jury, stating,

It is well settled that a defendant’s statutory right to testify before the grand jury “ ‘must be scrupulously protected’ ” (People v Smith, 87 NY2d 715, 721, quoting People v Corrigan, 80 NY2d 326, 332). We conclude that, because defendant complied with the requirements of CPL 190.50 (5) but was nevertheless denied his right to testify before the grand jury, the court erred in denying defendant’s motion to dismiss the indictment.

Additionally, if we are required to discuss the grand jury right with a client, how can we then decide the client does not get to exercise that right.

Given this emphasis on the importance of a defendant's right to testify before the grand jury, we should be at least as vigilant in protecting it as the Fourth Department, right?’

And if the failure of the prosecution to allow a defendant to testify is a violation of a client’s rights so substantial that an indictment gets dismissed when the defendant is deprived of that right, how is it less of a violation if we cause the deprivation?

Finally – sometimes we get it wrong.  In a case I handled recently, I begged and pleaded with a client not to testify.  The client went in (after we prepared for the testimony I so feared) and the case was no billed.  What if I had decided not to let him testify?

The alternative view raises the concern that if we let our clients testify in ways that damage their cases, then we may be held ineffective.  But if we write those CYA letters to the file and client, then how is this different from any other circumstance when our client has made a fundamental decision that we disagree with –such as taking a case to trial when we believe the evidence against them is rock solid and they should be pleading.

So although the right is not usually described as a fundamental right, I believe that it is – and that at some point the Court of Appeals will recognize the obligation of defense counsel to honor a client’s decision to testify even if defense counsel disagrees.


Jill Paperno and Brian Shiffrin


    Courts divide the decision-making between counsel and client into two categories – fundamental and strategic. If a decision is “fundamental” it is reserved to the defendant.  If it is strategic, it is reserved to the attorney.  People v. Colville 20 N.Y.3d 20.

A defendant having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case (i.e., whether to plead guilty, waive a jury  trial, testify in his or her own behalf or take an appeal; Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987; People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77 supra )

People v. White, 73 N.Y.2d 468, 478, 539 N.E.2d 577, 582-83 (1989).  See also, Jones v. Barnes, 463 US 745.

These holdings are consistent with the proper role of the attorney and the client. While defendant has a fundamental right to counsel and a fundamental right to represent himself, he has no right to “hybrid” representation (People v. Mirenda, 57 N.Y.2d 261, 265–266, n., 455 N.Y.S.2d 752, 442 N.E.2d 49 n.). Thus, a defendant who has a lawyer relegates control of much of the case to the lawyer except as to certain fundamental decisions reserved to the client (see, People v. Jordan, 96 A.D.2d 1060, 1061, 466 N.Y.S.2d 486, affd. 62 N.Y.2d 825, 477 N.Y.S.2d 605, 466 N.E.2d 145).

People v. Ferguson, 67 N.Y.2d 383, 390, 494 N.E.2d 77, 81 (1986)

    The United States Supreme Court explained division of authority in New York v Hill, 528 U.S. 110 (2000):

What suffices for waiver depends on the nature of the right at issue.“[W]hether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.” United States v. Olano, 507 U.S. 725, 733 (1993). For certain fundamental rights, the defendant must personally make an informed waiver. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464—465 (1938) (right to counsel); Brookhart v. Janis, 384 U.S. 1, 7—8 (1966) (right to plead not guilty). For other rights, however, waiver may be effected by action of counsel. “Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has–and must have–full authority to manage the conduct of the trial.” Taylor v. Illinois, 484 U.S. 400, 417—418 (1988). As to many decisions pertaining to the conduct of the trial, the defendant is “deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ ” Link v. Wabash R. Co., 370 U.S. 626, 634 (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326 (1880). Thus, decisions by counsel are generally given effect as to what arguments to pursue, see Jones v. Barnes, 463 U.S. 745, 751 (1983), what evidentiary objections to raise, see Henry v. Mississippi, 379 U.S. 443, 451 (1965), and what agreements to conclude regarding the admission of evidence, see United States v. McGill, 11 F.3d 223, 226—227 (CA1 1993). Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last


1.  Right to testify

    “One of the fundamental precepts of due process is that a defendant in a criminal proceeding has the right to testify, which right is guaranteed under both the Federal and New York State Constitutions (cites omitted).”  People v. Mason 263 AD2d 73, 76.  See also, People v. White, 73 NY2d 468.

    This is a decision the defendant gets to make; defense counsel may beg, plead and cajole the client not to testify, but may not prevent the client from testifying. 

    An attorney must inform the defendant of the right to testify, even if the attorney disagrees with it.  People v. Cosby, 82 AD3d 63. 

    Sometimes attorneys do not advise their clients of upcoming grand jury proceedings, but it is clear that a defendant has the right to testify before the grand jury as well.  (People v. Brumfield, __ AD2d __, 9/27/13 (Fourth Dept.)

2.  Whether to plead guilty

    A defendant has the right to decide whether to plead guilty or go to trial.  People v. White, 73 NY2d 468.

3.  Whether to waive a jury and proceed with a bench trial

    A defendant has the right to decide whether to waive a jury trial and proceed with a bench trial.  People v. White, 73 NY2d 468. 

4.  Whether to appeal a conviction

     A defendant has the right to decide whether to appeal his or her conviction.  People v. White, 73 NY2d 468.

5.  Certain defenses

    A defendant is entitled to make the decision of whether to proceed with the defense of Extreme Emotional Disturbance (People v. Petrovich 87 NY2d 961).

    A decision of whether to pursue a defense of insanity may be one that is reserved to the defendant as discussed in dicta in People v. Washington, 5 Misc. 3d 957, reversed on other grounds Washington v. Poole, 742 F.Supp. 2d 3323, although the Third Department decision in People v. Copp 184 AD2d 859 suggests that decision is one reserved for the attorney.  See also, People v. Rizzo, 301 AD2d 682.

6.  Whether to be present during court proceedings

    A defendant has the right to be present at trial and certain pretrial proceedings.  The attorney cannot waive that right on behalf of the defendant.  Whether a proceeding is one for which the defendant has the right to be present depends on the nature of the proceeding.

In determining whether a defendant has a right to be present during a particular proceeding, a key factor is whether the proceeding involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position. If so, as in Anderson (supra) and Turaine (supra), then the defendant has a right to be present. The Sandoval hearing in this case was such a proceeding.

People v. Dokes, 79 N.Y.2d 656, 660, 595 N.E.2d 836, 839 (1992)


        These are among the decision a lawyer can make unilaterally.  However, just because you can, doesn’t mean you should.  It’s always better if you and your client can reach a decision together after discussing all of the options.

    1.  Selecting a defense or requesting lesser included offenses

         A defendant does not have the right to determine whether to request a lesser included offense be charged to the jury with certain exceptions.

        This decision is a difficult one, as on the one hand, without lesser, the jury has to decide whether defendant is guilty of the top count or not, and the decision is “all or nothing”, while on the other hand, if there is insufficient proof on the top count, and a lesser is read to the jury, a jury may compromise and convicted on a lesser, instead of acquitting on everything.  Counsel should consult with the defendant, but counsel may not leave the decision entirely up to the defendant without advice of counsel.  People v. Colville, 20 N.Y.3d 20. 

    2.  Mistrial

        The defendant does not have to agree to the defense counsel’s request for a mistrial.  People v. Ferguson, 67 N.Y.2d 383.

    3.  Closure of the courtroom 

        Whether to consent to the closure of the courtroom is a decision that does not require the defendant’s consent.  People v. Vanegas, 243 A.D.2d 261.

    4.  Challenge to a particular juror

        Defense counsel retains sole authority to challenge jurors People v. Colon, 90 NY2d 824.

        5.  Foregoing second suppression hearing, waiving statutory speedy trial rights and other issues

The decision to forego a duplicate suppression hearing as superfluous is precisely the type of day-to-day decision making over which an attorney, in his or her professional judgment, retains sole authority (compare, People v. Colon, supra [jury selection involves tactical decisions entrusted to attorney];  *652 People v. Ferguson, 67 N.Y.2d 383, 502 N.Y.S.2d 972, 494 N.E.2d 77 [decision to consent to a mistrial is reserved to attorney]; People v. Trepasso, 197 A.D.2d 891, 602 N.Y.S.2d 291, lv. denied 82 N.Y.2d 854, 606 N.Y.S.2d 606, 627 N.E.2d 527 [decision concerning waiver of statutory speedy trial right is reserved to attorney]; People v. Johnson, 150 Misc.2d 1024, 570 N.Y.S.2d 773 [decision to waive operation of CPL 180.80 is reserved to attorney], with People v. Petrovich, 87 N.Y.2d 961, 641 N.Y.S.2d 592, 664 N.E.2d 503 [decision to request submission of extreme emotional disturbance defense to jury falls to the defendant]).

People v. Parker, 290 A.D.2d 650, 651-52, 736 N.Y.S.2d 162, 165 (2002)

Thursday, December 19, 2013

Basics of Grand Jury Practice In New York

Jill Paperno, Second Assistant Monroe County Public Defender

and author of  Representing the Accused: A Practical Guide to Criminal Defense
      Article 190 of the Criminal Procedure Law sets forth the rules relating to grand jury presentations.  As defined in Section 190.05 of the Criminal Procedure Law,
 A grand jury is a body consisting of not less than sixteen nor more than twenty-three persons, impaneled by a superior court and constituting a part of such court, the functions of which are to hear and examine evidence concerning offenses and concerning misconduct, nonfeasance and neglect in public office, whether criminal or otherwise, and to take action with respect to such evidence as provided in section 190.60.
            In Monroe County, there are usually at least two grand juries sitting at any one time.  The grand jury sits for a term of the court (CPL 190.15), which is usually a month in length, although upon application of the D.A. the period can be extended (190.15[1]).  As the grand jury sits, its decisions as to which cases are indicted, which are returned to lower court and which are dismissed are publicized periodically in a document called “the risings.”  (Not the Bruce Springsteen rising.)  So there are times that a prosecutor may commence a grand jury presentation, but delay the grand jury’s decision to see whether your client is accepting an offer.  The prosecutor may tell you that the grand jury has its “final rising” on a particular date, and that the prosecutor must know your client’s decision prior to that date. 
            Proceedings of the grand jury are not valid unless at least sixteen members are present (CPL 190.25).  At least twelve members must agree for a charge to be indicted (CPL 190.25). 
             The Grand Jury is a secret process (See CPL 190.25[4][a]); only specified individuals may be present during the grand jury’s work.  The list of those who may be present is contained in CPL 190.25(2).  The public may not be present.  Your client may not be present unless s/he chooses to testify, and then may only be present during his/her testimony.
             Although the Court and the District Attorney are the legal advisors to the grand jury, there is no judge presiding in the room during grand jury conduct.  Instead, the prosecutor reads the law to the grand jury and generally runs the show.  If you have a dispute about something that is occurring in grand jury in one of your cases, you may seek to have the County Court Part I Judge resolve the matter by requesting to see the judge with the prosecutor. 
             Section 190.30 of the Criminal Procedure Law sets forth the evidentiary rules applicable to the grand jury.  Notably, there are certain types of hearsay evidence that are admissible in grand jury, but hearsay is limited to the specific types of evidence set forth in that statute. 
             If you represent a witness who may appear before the grand jury, or a defendant against whom a case is being presented, you must become familiar with the statutes relating to compulsion of evidence and immunity (CPL 190.40), waiver of immunity (CPL 190.45), the statute that addresses who may call witnesses and the procedures when a defendant is a witness (CPL 190.50), and the statute that addresses an attorney’s role before the grand jury when representing a witness (CPL 190.52). 
             If you represent a defendant before the grand jury, unless s/he is a cooperating witness who has been offered immunity, you will be expected to review with your client the law relating to immunity and waiver of immunity.  Your client will have to sign a waiver of immunity that you will witness.
             Although the District Attorney’s Office has traditionally requested that the defendant sign an extensive waiver that exceeded the language of the Criminal Procedure Law, and also required that defense counsel sign an affirmation and acknowledge its signature in grand jury that defense counsel knows his/her role, a recent case decided by the Fourth Department (and discussed previously in this blog) confirms that the practice of requiring waiver beyond what the statute sets forth is unlawful.
          In People v. Brumfield, in which the defendant was convicted after trial, the Fourth Department ruled:
 CPL 190.50(5) provides that, if a defendant serves upon the People a notice of his intent to testify before the grand jury, appears at the appropriate time and place, and signs and submits to the grand jury “a waiver of immunity pursuant to [CPL] 190.45,” the defendant “must be permitted to testify before the grand jury” (CPL 190.50[5][b]; see CPL 190.50[5][a] ). In the event that the defendant complies with those procedures and is thereafter not permitted to testify, the appropriate remedy is dismissal of the indictment (see CPL 190.50[5][c] ). The parties do not dispute that defendant complied with the first two requirements of the statute. The only dispute is whether defendant signed “a waiver of immunity pursuant to section 190.45” (CPL 190.50[5][b] ). CPL 190.45(1) provides that a waiver of immunity “is a written instrument” in which a person who is to testify before the grand jury stipulates that he or she “waives [the] privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to [CPL] 190.40, as a result of giving evidence in such proceeding.” Here, the paragraphs in the waiver of immunity form that defendant left intact stated that defendant waived his privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40. Thus, defendant signed a waiver of immunity form that complied with the requirements of CPL 190.45(1) and was therefore required to be permitted to testify before the grand jury (see CPL 190.50[5][b] ). It is well settled that a defendant's statutory right to testify before the grand jury “ ‘must be scrupulously protected’ “ (People v. Smith, 87 N.Y.2d 715, 721, quoting People v. Corrigan, 80 N.Y.2d 326, 332). We conclude that, because defendant complied with the requirements of CPL 190.50(5) but was nevertheless denied his right to testify before the grand jury, the court erred in denying defendant's motion to dismiss the indictment. We therefore reverse the judgment of conviction, grant the motion, and dismiss the indictment without prejudice to the People to re-present any appropriate charges under counts two through five of the indictment to another grand jury (see generally People v. Pattison, 63 AD3d 1600, 1601, lv denied 13 NY3d 799).
 People v. Brumfield --- N.Y.S.2d ----  (Fourth Dept. Sept. 27, 2013).  Although the Court ruled on the waiver issue and did not reach the attorney affirmation issue, it seems that a refusal to allow defendant to testify because the attorney refuses to sign an affidavit not required by the statute or acknowledge it in grand jury might also result in a reversal. The District Attorney has been granted leave to appeal the Fourth Department’s holding to the Court of Appeals.

Practical tips
            Because handling preliminary hearings requires a working knowledge of grand jury practice, you must read the grand jury statutes (CPL Article 190).  You should be aware of the following:
 1.  If your client wishes to testify before the grand jury, you must send the prosecutor a written notice of your client’s intent to testify.  (CPL 190.50[5][a]).  If the prosecutor is presenting on short notice, do your notice by email and fax, with an explanation included that you cannot send the letter by U.S. mail because of the short notice you received. 
     Some attorneys send these notices on each case both in order to preserve the client’s right and to preserve any potential issue of the prosecutor presents the case without providing the defendant with the opportunity to testify.  But if you choose to engage in this practice, you must notify the prosecutor if your client is not testifying before the grand jury, as your client will be body-ordered to the grand jury, and may be left sitting, without you there, initially bewildered and eventually angry.
 2.  Often, it’s a bad idea for your client to testify before the grand jury.  You don’t yet know the evidence the prosecutor has in the case, you don’t yet know whether your client’s version varies greatly with that evidence or with any statement s/he may have made to the police, the client’s testimony can be used at trial, the grand jury is likely to indict any case the prosecutor presents to them, and you may be revealing more than you should to the prosecutor prior to trial, allowing the prosecutor to try to prepare the witnesses to refute your defense.  There are exceptions to the bad idea rule, but not many. (I should note that some of my colleagues engage in a more vigorous and less conservative grand jury practice than I do, with greater success.)
 3.  You are entitled to reasonable notice of the prosecutor’s presentation of the case if your client has been held for action of the grand jury on an undisposed of felony complaint and/or if notice has been served by the defense: 
 The Criminal Procedure Law imposes a new obligation on prosecutors under CPL 190.50(5)(a): a defendant must be informed that a Grand Jury proceeding against that person is pending, in progress or about to occur, if that person has been arraigned on an undisposed felony complaint charging an offense which is a subject of the prospective or pending Grand Jury proceeding. CPL 190.50(5)(a) then adds in pertinent part that “[w]hen a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his [or her] own behalf if, prior to the filing of any indictment * * * he [or she] serves upon the district attorney of the county a written notice making such request” (emphasis added). Once an accused serves such notice requesting an appearance before the Grand Jury, the District Attorney “must notify the fore[person] of the grand jury of such request, and must subsequently serve upon the applicant * * * a notice that [the applicant] will be heard by the grand jury at a given time and place. Upon appearing at such time and place * * * such person must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration” (CPL 190.50[5][b] ). The District Attorney must afford defendant “reasonable  *413 time” to exercise the right to appear as a witness at the Grand Jury (CPL 190.50[5][a] ).
 People v. Evans, 79 N.Y.2d 407, 412-13, 592 N.E.2d 1362, 1364 (1992)
             Reasonable notice is not five or ten business hours after you’ve been assigned. (See CPL 190.50[5][a], People v. Degnan, 246 AD2d 819, “Insofar as is pertinent to this appeal, CPL 190.50(5)(a) provides that the District Attorney must notify the defendant or his or her attorney of a pending Grand Jury proceeding in such manner as to afford the defendant reasonable time to exercise his or her right to appear as a witness therein. Defendant asserts that the one-day notice provided by the People here was insufficient to allow him a reasonable opportunity to exercise his right to appear as a witness in the Grand Jury proceeding. We agree.”  People v. Degnan, 246 A.D.2d 819, 820, 667 N.Y.S.2d 808, 809 (1998)) If you get notice that is unreasonable, send a letter to the prosecutor that the notice is unreasonable, and that you will be filing a five day motion seeking dismissal of the case after indictment if they do not provide you with reasonable notice.
 4.  A defendant has the right to testify before a grand jury that has not voted the case if the defense serves timely notice. 
 Our reading of CPL 190.50(5) together with its history and purpose warrants the conclusion that the Legislature intended that individuals who give timely notice reasonably prior to the prosecution's presentment of evidence and prior to the Grand Jury vote on an indictment are entitled to testify before the vote.  People v. Evans, 79 N.Y.2d 407, 413, 592 N.E.2d 1362, 1365 (1992)
 So ask your prosecutor if they have voted the case yet; if they have, do not have your client testify.  They will not tell you if you do not ask (and may not tell you if you do!).  Tell them you will be filing a five-day motion (CPL 190.50[5][c]) unless they withdraw the case from that grand jury and present to another that has not voted the case.
 5.  If a defendant is out of custody on a felony and the case is no longer pending in local criminal court, the defendant is not entitled to notice of the presentation of the case unless the defendant has requested the opportunity to testify in writing (as 190.50[5][a] has been interpreted by courts).  Similarly, if the case has been referred to the grand jury following a preliminary hearing or a defendant waives the preliminary hearing, you are not entitled to notice.   
 As a general rule, the target of a Grand Jury investigation is not entitled to any sort of notice that a Grand Jury proceeding against him is in progress or about to occur. The one exception is where a person has been arraigned on a “currently undisposed of felony complaint” charging the offense to be presented to the Grand Jury (subd. 5[a]). The purpose of this is to preserve some opportunity for a defendant to negate probable cause and avoid indictment. Thus the exception does not apply where defendant waives a preliminary hearing at arraignment or if the case is presented to the Grand Jury after the defendant has been held for the Grand Jury on the basis of a preliminary hearing.
Commentary N.Y. Crim. Proc. Law § 190.50 (McKinney)
             Because many judges in Monroe County do not adhere strictly to Article 180, a question remains as to whether a defendant with an adjourned date for “screen” has an undisposed of felony pending in local criminal court, as undisposed of felonies are addressed in a statute that doesn’t specifically describe this situation.  To be on the safe side, if your client wants to testify before the grand jury, serve notice whether or not the client is in custody or the case has been adjourned in local court.
             If notice is served, it must notify the prosecutor of intent to testify on either all charges pending before the grand jury, or the specific charge the defendant wants to testify about.  A notice served on one charge will not be deemed notice on another matter.  See People v. McNamara, 99 A.D.3d 1248, 951 N.Y.S.2d 816 (2012) leave to appeal denied, 21 N.Y.3d 913, 988 N.E.2d 893 (2013). 
            And if the prosecutor does not provide notice of grand jury presentation when s/he is required to, the defense must file a “five day motion” to properly challenge the failure:
 Special note should be taken of the fact that, although a motion to dismiss an indictment for failure to honor a defendant's request to appear before the Grand Jury is, technically speaking, a “pretrial motion” (see CPL §§ 210.35 [4], 255.10), the timing is not governed by the forty-five day period specified in CPL § 255.20. This motion must be made within five days after arraignment or it is waived (see CPL § 190.50[5(c)]).  (Emphasis added)
 Commentary, N.Y. Crim. Proc. Law § 190.50 (McKinney).