People v. D'Andrea

• Decision Date: 13 January 1960
• Citation: 195 N.Y.S.2d 542,20 Misc.2d 1070
• Parties: PEOPLE of the State of New York v. Moses D'ANDREA et al., Defendants.
• Court: New York County Court

Page 542

195 N.Y.S.2d 542

20 Misc.2d 1070

PEOPLE of the State of New York v. Moses D'ANDREA et al., Defendants.

Kings County Court.

Jan. 13, 1960.

Edward S. Silver, Dist. Atty., David Diamond, Asst. Dist. Atty., Brooklyn, for the People.

Frank Serri, Brooklyn, for defendant D'Andrea.

NATHAN R. SOBEL, County Judge.

This motion is for a pretrial discovery and inspection of the defendant D'Andrea's written statement given to the police and the district attorney immediately after his arrest. The specific issue here involved has never been heretofore decided by an Appellate Court in this jurisdiction.

The moving defendant and three others have been indicted for the crimes of manslaughter and felonious assault.

I am not advised in the moving or answering papers of the nature of this defendant's statement. I am not told whether it is incriminatory or exculpatory. The only circumstance mentioned is that the statement was made over six months ago and that knowledge of its contents is necessary for this defendant to prepare for trial. Further reference will be made to this circumstance later in this opinion.

This issue was not before me in People v. Preston, 13 Misc.2d 802, 176 N.Y.S.2d 542, affirmed sub nom. Silver v. Sobel, 7 A.D.2d 728, 180 N.Y.S.2d 699 decided a few months ago. Nevertheless I discussed the issue. 13 Misc.2d at pages 803-807, 176 N.Y.S.2d at pages 546-550. In that opinion I quoted at a little length from the opinion of Judge Cardozo in People ex rel. Lemon v. Supreme Court of State of New York, 245 N.Y. 24, 156 N.E. 84, 86, 52 A.L.R. 200, decided in 1927. Lemon is even now the leading case on pretrial discovery and inspection in criminal proceedings. In his opinion Judge Cardozo discusses the history of pretrial discovery in both civil and criminal cases. He foresaw then, in 1927, 'the beginnings or at least the glimmerings' of a broader power of discovery and inspection in courts of criminal jurisdiction. In Silver v. Sobel, supra (7 A.D.2d 728, 180 N.Y.S.2d 699) the issue was the granting of a pretrial discovery and inspection of an autopsy report. The Court there held that the County Court has the power in the exercise of its discretion to grant a motion for the inspection of documents in the possession of the prosecutor which are admissible on the trial as evidence for the prosecution. A written statement taken from a defendant after arrest if a confession or admission, is admissible as evidence for the prosecution. People v. Bretagna, 298 N.Y. 323, 83 N.E.2d 537; Reed v. McCord, 160 N.Y. 330, 54 N.E. 737; Civil Practice Act 374-a Judge Cardozo, in Lemon, supra, referred to documents admissible 'for' or 'against' the defendant. An exculpatory statement is often admissible against a defendant either in whole or in part. It may be used to furnish corroborative or supporting evidence when such evidence is required by law. (And of course, it may be used to contradict or impeach a defendant should be take the stand; but under such circumstances it is not evidence in chief and therefore not admissible as affirmative evidence.)

It is my judgment that the rule enunciated in Silver v. Sobel, supra, is equally applicable to a defendant's own written statement made to the District Attorney or the police after arrest. The granting of such a motion for pretrial discovery and inspection rests in the sound discretion of the trial court.

Before discussing the law on the subject in jurisdictions other than our own, a brief discussion of the practical considerations may help to place the issue in its proper perspective.

In Kings County, unlike most other counties, our district attorney endeavors to obtain a written statement following arrest from every accused charged with a felony. We have therefore had considerable experience with written confessions and admissions. Approximately eighty-five percent of all felony indictments are disposed of by plea of guilty before trial. In the pretrial discussion of such dispositions, our district attorney has never indicated the least reluctance to exhibit to a defendant's counsel any written statement obtained from the defendant. This has been done as a matter of deliberate policy. Our experience has been that it aids in the disposition of many cases which otherwise might necessitate a trial.

After such voluntary pretrial disclosure, a number of such cases have proceeded to trial. I am fully aware of the contention constantly repeated by prosecutors, and by the Courts in opinions, that pretrial disclosure permits a defendant, forewarned with knowledge of the contents of his statement, to 'pattern' his defense upon his written confession or admission. From my personal experience, I am of the opinion that that contention has been much exaggerated and oversold. It disregards the intelligence as well as the integrity of defense counsel. Apart from the legal sanctions against perjury, the dire consequences to the defendant's case of resorting to falsification are well understood by all experienced defense counsel. A voluntary confession (or admission) made by a defendant is very potent evidence and attempts to attack such a statement by perjury or falsification, will usually serve only to strengthen its evidentiary value in the eyes of the jury.

But even if it is conceded that a danger of perjury does exist, such danger is not entirely obviated by a refusal to permit pretrial inspection. Confessions (and most admissions) are introduced in evidence as part of the People's direct case. A defendant willing to risk perjury will always have the opportunity to 'pattern' his defense upon his written statement.

These observations of mine are supported by the experience in the State of New Jersey with pretrial discovery and inspection, discussed later in this opinion. The 'hobgoblin perjury' theory is eloquently discussed and interred by Mr. Justice Brennan (now U. S. Supreme Court Justice) in his dissent in State v. Tune, 13 N.J. 203, 98 A.2d 881, 894, and by Chief Justice Weintraub in State v. Johnson, 28 N.J. 133, 145 A.2d 313.

I conclude based upon experience with many cases where there has been voluntary pretrial disclosure by the prosecution, that the danger of perjury is grossly exaggerated. And contra, the potential for good in aiding disposition, in facilitating and expediting trial and in preventing injustice has been gravely underestimated.

Discovery, it seems to me, is a most effective device for the reduction of the adversary element to a minimum in both civil and criminal cases. See note, 64 Harv.L.Rev. 1011.

In our State, permissive pretrail discovery in criminal cases has not kept pace with the advances in such procedures in civil cases. We do now in this State permit a plaintiff in a negligence action, to inspect pretrial, any written statements given by him to an insurance representative. Wilhelm v. Abel, 1 A.D.2d 55, 147 N.Y.S.2d 475. There is in fact very little difference between such a statement and a written confession or admission taken by the district attorney after arrest. Both are taken before any legal proceedings have been commenced and usually before the party has an opportunity to consult with counsel.

In a few States however pretrial discovery in criminal proceedings is more liberal than in civil proceedings. For instance both Minnesota and Illinois have statutes which make it a condition precedent to the admission of a written confession on the trial, that a copy thereof shall have been given to the defendant at the time of the taking thereof and a written receipt obtained from him. The Illinois statute (1957, July 5, p. 1116, § 1, S.H.A. ch. 38, § 729), applies only to written confessions but the Minnesota statute (Ch. 284, Laws 1951, April 6, p. 367, M.S.A. § 611.033) applies to confessions, admissions and all other written statements. Certainly in these States the hazard of perjury has not been considered greater in criminal cases than in civil cases.

In England and in Canada, under their preliminary procedures in criminal cases, all the evidence in possession of the Crown is in the possession of defense counsel before the trial begins. See State v. Dorsey, 207 La. 928, 22 So.2d 273.

In our Federal jurisdiction, Rules 16 and 17(c) of the Rules of Criminal Procedure, 18 U.S.C.A., grant to a defendant broad pretrial discovery and inspection to all documents. For some reason, which I do not understand in view of the breadth and scope of these rules, some district court decisions deny the power of the Court to grant pretrial inspection of a defendant's confession but allow such inspection of more vital evidence. United States v. Kiamie, D.C., 18 F.R.D. 421; United States v. Patrisso, D.C., 20 F.R.D. 576; United States v. Duncan, D.C., 22 F.R.D. 295. But most district courts concede that the courts have discretionary power to grant such inspection either by virtue of Rule 16 (United States v. Peace, D.C., 16 F.R.D. 423; United States v. Schulter, D.C., 19 F.R.D. 372; United States v. Kaskel, D.C., 23 F.R.D. 152; United States v. Berman, D.C., 24 F.R.D. 26) or as an inherent authority vested in the Federal Courts. United States v. Garrison, D.C., 168 F.Supp. 622.

The one authoritative decision by an Appellate Court is Shores v. United States, 8 Cir., 174 F.2d 838, 844, 11 A.L.R.2d 635. The Court there held----

'Perhaps, as a matter of fundamental fairness, a defendant ought in enlightened criminal administration to be granted the right to have a copy of his confession in any case. But that broad question is not the one with which we are now dealing. Our holding here simply is that, in its present form, Rule 16 does not provide any such right. * * *

* * *

* * * 'In holding, as we have, that Rule 16 does not create in a defendant the right to demand before trial a copy of his confession, the observation may be added that we are not intending thereby to imply that a federal court does not have the power in any situation to...