If Trump won't balance law and order with reforms, Congress should

Criminal justice cognoscenti make clear that we can’t expect too much criminal justice reform from a Trump Administration. 

He campaigned as the “law and order” candidate; he likely won’t try to lower draconian sentences; he’s not offended by mass incarceration. But there is a place where his administration – and a Republican Congress – might be willing to help reform the system, and it wouldn’t present as pro-defendant (or, “pro-crime” as some prefer).

Truth is, the general public doesn’t realize that the information given by a prosecutor to a defendant to prepare for trial is microscopic in comparison to what a civil defendant gets.


Indeed, attorneys who defend civil cases will admit that by the time the case comes to trial, there will be no secrets in what the plaintiff will prove. Virtually every witness will have been deposed (i.e., given testimony about the claims), and pretty much every document that either side plans to introduce will be well known long before trial.

But not so in a criminal case. There’s no mechanism for a defendant to require witnesses to speak with him, much less under oath. So, unless the prosecution witness volunteers to talk to the defense (and the prosecutor has not put constraints in the way, e.g., a cooperation agreement discouraging the witness from talking to the defense), the defense will be able to ask questions for the first time at trial. Not before. Remarkable, really, when you think about a person’s liberty being at stake.

It actually goes further – if there are notes of interviews conducted by law enforcement, or written statements of witnesses – depending upon the idiosyncratic practices of the presiding judge or the nature of the case – defense counsel may not see them until the trial is underway, or maybe even until the witness testifies.

In truth, the rules will not change – a defendant will never have the right to depose a prosecution witness. If an Obama Administration wasn’t interested, a Trump Administration won’t be. But here’s where a Republican leadership can do something worthwhile, even while maintaining its “law and order” mantle. 

In criminal cases, prosecutors explore records, discussions, and the whereabouts of witnesses in a never-ending process.

And given that just about no one communicates by snail-mail (or even telephone) anymore, emails, texts, social media posts, and videos must all be in the mix of what the prosecution looks to. So, putting aside non-complex drug cases or street offenses, the amount of documents that must be shared with the defense pre-trial under what is called Rule 16 (of the Federal Rules of Criminal Procedure) has become Herculean.

Not uncommonly, prosecutors provide literally millions of documents to a defense in discovery, and the documents are produced digitally, often with no index explaining what they are or their relevance. And, almost always, the prosecutor provides no list whatsoever of which of these documents he will produce at trial until just before trial.

So, as the defense catalogues those millions of pages trying to figure them out, he is told as the trial is about to begin that, say, 212 documents will be presented to the jury. The problem has grown worse in our digital world, but is hardly novel. 

In a pre-digital, complex racketeering conspiracy case I handled some years back in South Carolina, the prosecutor walked me into a 20’ by 20’ room filled, wall-to-wall and floor-to-ceiling, with boxes of documents and said “Here’s your discovery, tell me what you want copied. By the way, the exculpatory material is in there too . . . somewhere.”

And to be clear, unlike in the civil case where “discovery” can be almost Magellan-like, the criminal defense won’t have the benefit of the prior statements or grand jury testimony of the prosecution witness who will introduce the specific exhibit at trial, and explain its significance, meaning and relevance.

So why should President Trump care? Trump is regularly engulfed in civil lawsuits, and prides himself on knowing more about civil litigation than almost anyone on earth. Thus, his own experience tells him that learning the strengths and weaknesses of the case from both sides will invariably lead to settlement and, if not, allow the parties to identify and synthesize the real issues prior to trial.

Unquestionably, that should be true in the criminal world as well. Can Trump argue with the simple premise that the system works far more effectively when guilty defendants plead guilty — saving the expense, time and uncertainty of trial?

As a practical matter, then, the more information provided to the defense attorney about the strength of the prosecution’s case, the more likely he’ll be able to persuade his client that proceeding to trial will be a losing battle – a prosecutor’s “slam dunk.”

Or that pleading guilty may actually help his client cut his losses by receiving a potentially far lower sentence. 

Venerable organizations such as the New York Council of Defense Lawyers (NYCDL) and the National Association of Criminal Defense Lawyers (NACDL), hardly a bunch of whiny defense lawyers, have advocated changes to Rule 16.

Most specifically, the proposed amendments would require the prosecution to produce materials quickly after a defendant is arraigned (and a sufficient time before trial). The documents would be produced with an index, with such basic information as the source of the materials, and where they were found.

Perhaps most importantly, the proposal would require a tentative exhibit list significantly before trial. These changes would allow defendants a fairer shot at determining just what the prosecution intends to prove, and how – and thus, whether to plead guilty.

And, in truth, getting this information out earlier should not harm prosecutors – they are obligated to “do justice” or, as a corollary, not engage in “trial by ambush.” Prosecutors should want clarity, and mandated deadlines, as well.  While some judges will tolerate the “over-production” of material, more and more will not.

They will hold feet to the fire and require prosecutors to meet with judicially-set deadlines.

So, even if President Trump may not be concerned about leveling the playing field for defendants, he is a pragmatist. In an increasingly litigious society, wouldn’t the courts be better off by helping clear the dockets and making defendants more knowledgeable – earlier – about what they’re up against? Being able to make the courts work better could result in a tweet by the president that would likely be well received, and widely so.

But if this seems all too naïve – expecting Trump to willingly appear soft by “helping” criminal defendants (who, incidentally, are presumed innocent) – the Congress can simply introduce legislation on its own initiative. It, too, has a compelling interest in ensuring that the courts run efficiently. It is one of those things that the executive and the legislature should easily agree upon.

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. An adjunct professor at Fordham Law School, he regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications. Dale J. Degenshein of Stroock assisted in preparing this article.

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