Defense must show its hand

April 02, 2006|By NEW YORK TIMES NEWS SERVICE

BOSTON -- It is the stuff that courtroom dramas are made of: the gotcha moment when a lawyer confronts a witness on the stand with evidence that the witness is lying.

Maybe the lawyer discovered that the witness had been out of town the day he supposedly saw the crime or learned that the witness had told different stories.

"I do it in almost every case," said James L. Sultan, who has represented several high-profile defendants in Boston. "That's what we do as criminal defense lawyers."

Now, Massachusetts lawyers are likely to have far fewer of those moments, following a ruling by the state's highest court.

The ruling, which split the Massachusetts Supreme Judicial Court 4-3, said that judges in criminal trials can compel defense lawyers to give the prosecution evidence they plan to use to cross-examine prosecution witnesses.

That makes Massachusetts one of three states with such a rule, experts said. The others are New Jersey and Minnesota, although courts in some states, including New York, have ordered the defense to produce such information, Sultan said.

Federal courts and most state courts do not require defense lawyers to tell prosecutors about information that could impeach the credibility of a prosecution witness.

Legal experts say the decision is striking because Massachusetts is considered a judicial trend-setter and is perceived as liberal.

But some defense lawyers in New Jersey and Minnesota said mandatory disclosures could lead to more pleas and dismissal before trial.

"I was taken aback that we had to tender that information to the prosecution," said William M. Ward, chief public defender of the 10th Judicial District of Minnesota, who previously worked in Illinois, where no such requirement existed.

"But by having this open-book policy, it helps resolve cases. We've had more dismissals."

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