Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

Defense Has Right to an Unredacted Police Report

As a criminal attorney one of my great frustrations is that we are not treated by the system as being as trustworthy as our civil counterpart. In civil cases, sensitive information is routinely shared with the other side subject to a protective order, e.g. we agree under the pain of contempt not to further distribute the items. In civil cases, we can send written questions to our opponent about the nature of their case. We can bring witnesses into our office to ask questions and we can demand the right to inspect documents before trial. In criminal cases, we are normally stuck with police reports and very limited additional information about the state’s case. A recent Court of Appeals case improves the situation somewhat.
In People v Jack, the Court of Appeals was tasked with the question of whether the State could keep witness contact information from the defense. The American Bar Association and federal courts have long held that a witness in a criminal case does not belong to either side, yet prosecutors’ continually attempt to frustrate defense access to prosecution witnesses.
The defense is entitled to a copy of the police reports under Michigan Court Rule (“MCR”) 6.201(B)(2). In Jack, the State provided redacted police reports to the defense which excluded the contact information for their witnesses. The defense requested unredacted versions of the report and the State refused. The defense filed a motion to compel the production of these reports. “The trial court noted that the police reports could be redacted if they concerned a continuing investigation, as provided by MCR 6.201(B)(2), or the prosecutor could seek a protective order,” and therefore allowed the production.
The prosecution appealed the matter to the Court of Appeals which upheld the trial court 2-1. The majority held that the Court Rule presumptively entitles a criminal defendant to the disclosure of unredacted police reports. If the state has individualized cause in a particular case to withhold such information, they have a duty to file a motion for a protective order. They simply cannot refuse to produce the non-redacted documents and shift the burden to the defense.
Dissenting Judge Boonstra disagreed. He held that the Court Rules allow such redactions and that the defendant’s redress would be to file a motion for an in camera hearing under MCR 6.201(D) to determine whether the redactions are warranted.
The People are still within the time limit to appeal to the Michigan Supreme Court.

Dissenting Judge Kozinski Recognizes Epidemic of Brady Suppression

Ninth Circuit Judge Kozinski may be a conservative, but he has long ago earned my respect for his honesty and ability to not simply tow the party line. His dissent in United States v Hicks, Ninth Circuit No. 10-36063 is no exception. It is rare that a dissent may be a call to action, but this case may be that exception.
Brady v Maryland prosecutors to disclose all evidence which is exculpatory in nature or which mitigates punishment. Unfortunately, in our adversarial system prosecutors are often tempted to bury this evidence. The problem comes with the fact that the person exercising this judgment has a conflicting obligation Moschus is to try and convict a defendant. What prosecutor is theoretically the Minister of Justice career advancement is normally based on convictions. Prosecutor to conceal evidence rarely phrase discipline for doing so and I virtually never prosecuted.
Kenneth Olsen was charged with developing chemical weapons of mass distraction. There was evidence presented at trial that he was attempting to develop the chemical ricin. The quantities impurities of this drug however were so low that the government was going to have a difficult time proving that the defendant had any intent to injure other people. To overcome this, the assistant United States attorney call Arnold Meinkhoff as their expert witness. Prosecutor concealed an internal investigation which showed huge problems with this expert witnesses integrity or level of care. Fourteen of his one hundred investigations which were audited showed serious problems.
This was never turned over to the defense counsel. The majority of the Ninth Circuit Court of Appeals upheld this nondisclosure. A majority of United States Court of Appeals for the Ninth Circuit then denied en band rehearing.Judge Kozinski not only dissented from the results in that case, but noted that Brady violations had reached epidemic proportions.
Judge Kozinski further wrote:
“The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

The problem is systemic. Prosecutors cannot be trusted to determine what evidence must be turned over to undercut their cases. Courts need to move this determination from the prosecutor to an independent master. Similarly forensics needs to be moved from an adversarial branch government to a branch under the court which is not incentivized in anyway to call a matter in one want manor or the other. These experts also need to be shielded from the other evidence and opinions in the case so that all they are determining is based on the evidence they are charge with investigating.