Attorney Sam returns to you today on the heels of a fairly long jury trial. I tell you this for two reasons. The first is by way of explanation as to why there were no blogs posted by me last week and yesterday’s blog is being posted today. As you know, my first responsibility must be to my clients and trial, which is basically war in the criminal justice trenches, takes a great deal of attention.

The second reason I share my recent battles is to tell you that the relationship between trial and discovery is ever-fresh in my mind.

We left off discussing what the Commonwealth can do to prevent the defense from getting discovery.

We have discussed the “why”. Now the “how”.

You might think, given our presumption of innocence and all, that the defendant’s right to a fair trial would be sacrosanct when it comes to preparing for and even conducting the trial. Well, the truth is that the defendant’s rights are not all that is considered. Weighed against that, rather heavily I might add, are the rights of other witnesses, particularly the complainant.

“You mentioned this last time, Sam. You wrote about the Commonwealth’s concern for the complainant’s safety.”

Yes, but that is not the only concern. You see, at least until we are defendants, we all have certain rights to privacy. This is a right of the complainant’s that can often prohibit a defendant’s right to discovery and, at times, a fair trial.

For example, Lulu Lunatic has brought a sexual assault charge against Harry Hands. Harry claims that they had been dating for about a year, had consensual sex many times and that Lulu is simply bringing this charge against him because he dumped her. Harry also leans over the table during his first interview with counsel and says, “By the way, she is bi-polar and has all kinds of issues, which is probably why she reacted the way she did. I know she has been in therapy for it many years.”

You might assume that the defense attorney can now simply summons those records and, if they say what Harry says they do, it will be very helpful at trial.

You would be wrong.

First of all, Harry does not know the name or address of the therapist.

“Big deal, Sam! Lulu knows…the prosecution can simply ask her, right?”

Nope. Under the law, the prosecutor is under no obligation to ask the complainant or her family this question. As a result…they won’t.

“What if Harry does know the name and address of the therapist? Done deal, right?”

Nope. First the defense attorney will have to bring a motion reflecting exactly what he expects to find in those records and how it is relevant. I mean specifics. Such as how you know that these records contain this specific material so as to show this is not a “fishing expedition”.

“Well, just tell them what Harry said.”

Not likely to cut it. He is the defendant and so, although presumed innocent (allegedly) he is going to be assumed a liar under these circumstances.

“Well, how would you know specifically what was discussed unless you were actually at the sessions? That does not make sense!”

How about that?

“But the rest of Harry’s life is at stake and the prosecution is trying to bring into evidence everything about his background…!”

Oh yes….but that is what we call “Justice”, you see?

“Well, in cases where you get the records…you can use them then, right?”

Not necessarily. But then, that is another blog for another day.

Many are the war stories defense attorneys can tell you about issues such as these. It is what gives us extra giggles as we bang our heads against the wall at night while reading about how the primary problem with the criminal justice system is the sleazy defense attorneys who are able to pervert justice through an system that is overly concerned with defendant’s rights.

Well, I still have a few brain cells left despite the banging. And I am ready to fight.

For you.

If you have criminal justice problems, give me a call.

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