Tagged: effective impeachment

Oh My Brady! Who Art Thou?

Although the New York State Court of Appeals decision in People v. McCray, will likely not be a hot topic of conversation in many legal circles, it will definitely have a palpable impact on prosecutorial practices regarding the handling of Brady disclosures in New York.

In McCray, the defendant was accused of raping an 18-year-old female acquaintance. At trial, the prosecution alleged that the defendant and the complainant had gone on a date and that the defendant physically forced the complainant to engage in sexual intercourse while inside an abandoned building. The defense claimed that the sexual encounter was consensual, and an altercation arose when the complainant demanded money in exchange for having sex with the defendant. The defense also contended that a physical struggle occurred when the defendant attempted to stop the complainant from running off with his “pants.”

Unquestionably, the case presented a “classic he-said she-said credibility determination.” And “[t]he outcome of the case obviously depended on which witness the jury believed.”

Prior to trial, the prosecution requested that the court conduct an in-camera review of the complainant’s mental health records. The prosecution didn’t believe that all of the reports were discoverable, and sought the court’s guidance as to which documents were Brady-Giglio material. The trial court found that only 28 pages out of the thousand records it reviewed should be disclosed to the defense –although the undisclosed records referenced, among other things, the complainant’s tendency (1) to confuse dates of events or misunderstand events, (2) to have hallucinations or distorted perceptions, (3) to misrepresent the truth in an effort to please her mother, (4) to engage in wishful thinking about relationships with males with whom she is recently acquainted, and (5) to fabricate occurrences of sexual assault and attempted rape by her father –allegations which were ultimately deemed “unfounded.”

The Court of Appeals observed that “[t]his case differs from the typical Brady case in that it involves confidential mental health records, and the decision to deny disclosure was made not by a prosecutor, but by a judge after an in camera review of the records sought.”  Nevertheless, it concluded that the key inquiry remained whether there was a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”

The Court held that the undisclosed records were “either cumulative or of little if any relevance to the case.” The Court explained that they “contain other examples of what could be called hallucinations or distorted perceptions, but the other examples were no clearer or more dramatic than the ones the defense already had….” The Court also found that any prior fabrications would be immaterial because the “accusation [against] her father was far removed in time and quite different from the[se] accusation[s]…” The Court concluded that “[i]t is hard to imagine, however, a juror who could attribute the complainant’s testimony here — a claim of rape, made immediately after what defendant testified was consensual sex followed by a dispute over payment — to a failure of recollection or a misunderstanding, however susceptible to those failings the complainant may have been.”

Dissenters were critical of the Court’s failure to protect the defendant’s right to consider and explore all legitimate avenues of information relevant to his defense and to the victim’s testimony and potential cross-examination. (Dissenting Judges: Jenny Rivera, Jonathan Lippman, Eugene Pigott).  They explained that “[w]ithout access to documents concerning reliability of the witness, the defendant cannot properly develop and pursue questioning favorable to the defense or address facts and related issues important to the truth finding process.”

Unfortunately, the long-standing importance of the Brady-Giglio rule has not been fully appreciated by all members of the Court and decisions like McCray reaffirm the need for legislative reform in order to address the stark imbalance in discovery practices.  Likewise, the result-affecting test conducted by the Courts to determine Brady violations is simply a farfetched and imperfect process -as “[w]hat influences juries, courts seldom know.” (Chief Judge Jerome Frank). The imperfection of this process is further illustrated by the illogical fact that the majority in McCray found it “hard to imagine” that a juror might reach a different outcome–while members of its own bench implicitly found that they would have reached a different outcome in this case had they know of the undisclosed reports.

The McCray decision simply fails to recognize that the right to disclosure of exculpatory and impeachment evidence under the Brady-Giglio rule is the cornerstone to ensuring a defendant the right to a fair trial, and ensuring that the “goals of seeking the truth through the trial process” is legitimate.  Without access to favorable evidence, a defendant is unable to either effectively prepare for trial, or present facts important to the “truth finding process.”

All the parties in McCray, except the defense, were permitted to decide how the complainant’s mental health records may be useful to the accused. In my opinion, such a vetting process is unsound, and should not be representative of how future Brady-Giglio materials should be handled by prosecuting offices. As an alternative,  these Brady-Giglio materials, even if  referencing “private matters” of the complainant, should have been turned over to the defense under a protective order, or subject to preclusion after the court heard arguments from both sides. Of course, such an alternative process would at least respect the fundamental principle that the right to favorable evidence is one of constitutional dimension -and the “privacy concern” of a witness is not.

To decide what may be favorable to a defendant, while keeping him blindfolded in his prison cell, does not comport to the notions of fairness and justice for all.


Recent SCOTUS Decision Restricting Fifth Amendment Protection

In Kansas v. Cheever, the Supreme Court recently held that when a defendant presents evidence of lack of mens rea through a psychological expert who has examined him the government may, consistent with the Fifth Amendment, rebut that evidence with testimony from a different expert who examined him in a pretrial, court-ordered examination.   In doing so, the Court clarified and arguably extended its holding in Buchanan v. Kentucky, 483 U.S. 402 (1987), where it allowed such proof to rebut a defense of extreme emotional disturbance, and where the court-ordered examination had been requested by both parties.  The Cheever Court held that the defendant’s assertion of voluntary intoxication that relied on an expert was sufficient to permit the prosecution to rebut because it is a “mental status” defense, even though voluntary intoxication is not a “mental disease or defect” under Kansas law.

Of course, in 1981 in Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court held that a court-ordered psychiatric examination violated the defendant’s fifth amendment rights where the defendant neither requested the examination nor put his mental capacity in dispute at trial.

The Cheever decision was unanimous.  Yet it is not clear why the content of a defendant’s discussion with a court-appointed expert should be revealed to a jury to rebut the testimony of another expert.  The Court indicated that this was essential to fair and effective impeachment, but, of course, the defendant’s expert is wholly subject to cross.  Certainly, in such a case, the defendant is being “compelled” to be a witness against himself, and, given the prosecution’s ability to cross examine that expert, fairness does not really justify that.  Moreover, although the court likened the situation to allowing a defendant to waive his privilege as to some subjects and not others, that is really not the case, since the defendant did not waive his privilege at the time when he spoke with the court-appointed expert, nor was the same psychiatric issue being investigated.   To the extent that it makes candor costly, the Cheever decision may well have a negative impact on the reliability of court-ordered pre-trial examinations that frequently are conducted for a variety of psychiatric reasons.

Cheever also claimed that if the rebuttal was properly permitted, the testimony exceeded proper limits in that it described broad subjects that had been discussed, i.e., the shooting from his perspective, intimated that he had  a personality disorder and discussing his alleged infatuation with criminals.  The Kansas Supreme Court had not addressed this issue, however, and the Supreme Court declined to address it in the first instance.