People v. Preston

Decision Date22 July 1958
Citation176 N.Y.S.2d 542,13 Misc.2d 802
PartiesPEOPLE of The State of New York, Plaintiffs, v. John PRESTON, Defendant.
CourtNew York County Court

Edward S. Silver, Dist. Atty., Brooklyn, Frank DiLalla, Asst. Dist. Atty., Brooklyn, for the People.

Jack Baum, for defendant.


The charge is manslaughter. The defense is that the blows struck neither caused death nor were a competent producing cause of death. In short, the defendant contends that the victim died of natural causes in a hospital after his admission thereto following the alleged assault. I am satisfied that such an issue exists in this case. Without such a preliminary determination, defendant would not be entitled to the relief sought.

The defendant has retained as an expert a pathologist. He contends that the pathologist cannot furnish him with expert assistance nor can his Counsel prepare for cross examination on the main issue without certain records.

The defendant therefore requests permission, preliminary to the trial, to inspect----

1. The hospital records concerning treatment of the deceased before his death.

2. Certain portions of the medical examiner's report with respect to his findings and conclusions as to the cause of death.

The novel feature of this case is that the district attorney, not the patient or the patient's representative, raises the question of the privileged nature of the hospital records under section 352 of the Civil Practice Act. And, with respect to the autopsy report, the district attorney contends that it is not available to the defendant by virtue of section 879 of the New York City Charter.

Further the district attorney raises these issues not on the trial but on a motion for pre-trial inspection of these records. I examine this last issue first.


Pre-trial Discovery and Inspection in Criminal Cases.

The law of this State with respect to pre-trial inspection begins, and insofar as it is pertinent to the issue before me, ends, with People ex rel. Lemon v. Supreme Court of State of New York, 1927, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200. The defendant was accused of murdering her husband by poisoning his food. The defendant was granted an inspection of the Grand Jury minutes. She thus obtained all the medical testimony concerning the cause of death. The defendant was not satisfied with this disclosure. She also sought written documents not submitted to the Grand Jury. Included were a confession by her accomplice; complete memoranda of the post mortem examination; all other reports of chemical analysis of the organs of the deceased. All of these additional requests were granted. The district attorney petitioned for an order of prohibition.

Judge Cardozo traced the history of pre-trial inspection in civil cases--(Civ.Prac.Act, § 324). He then stated:----

'When we turn to criminal cases, we find a jurisdiction that is even more restricted. There are expressions of opinion that deny the jurisdiction altogether. There are others that seem to limit the disclosure to documents that are the subject of the charge, thus assimilating the practice to the jurisdiction in civil causes that was known at common law. Others concede or assume a broader jurisdiction, one adequate to prevent a failure of justice, yet narrower than the discovery in equity or under the statutory substitute. Nowhere has there been a suggestion that the jurisdiction can properly be extended to notes or memoranda in the possession of the prosecutor, but inadmissible in evidence either for prosecution or for defense.' 245 N.Y. at page 29, 156 N.E. at page 85.

Judge Cardozo then discussed the cases in this and other jurisdictions. He added:----

'The decision of this case does not require us to affirm or deny the existence of an inherent power in courts of criminal jurisdiction to compel the discovery of documents in furtherance of justice. The beginnings or at least the glimmerings of such a doctrine are to be found, as we have seen, in courts other than our own. * * * We have a statute to the effect that the rules of evidence shall be the same in criminal as in civil causes. Code Crim.Proc. § 392. * * * The time has arrived, so it is argued, when they should be taken over by the criminal courts, and applied to criminal actions by a process of analogy. The appropriation is justified, we are told, by the germinal developments of a like power in the courts of other states, by the public policy implicit in the rule of uniformity of evidence, and by the necessities of justice.

'We leave the question open, for if the power exists at all, this case is not within it.' 245 N.Y. at pages 32-33, 156 N.E. at page 86.

Judge Cardozo then concludes that the memoranda sought would not be admissible in evidence.

'In a word, statements and memoranda collected by the prosecutor are to be exhibited to the defendant, though none of them will be admissible either for her or against her if offered at the trial. She makes no claim that they will be. She takes the ground that she should have them because study of the evidence will be helpful in preparing her defense. This is to enlarge the remedy beyond anything permitted by analogy or precedent.'

The decision in Lemon was written thirty years ago. All of the memoranda or writings there involved were inadmissible. These were pure hearsay. They were inadmissible under the old 'shop book rule' or the 'regular entries rule'. But in 1928, Civil Practice Act, § 374-a, was enacted primarily to overcome some of the deficiencies of the old rule. Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517; Palmer v. Hoffman, 318 U.S. 109, 115, 63 S.Ct. 477, 87 L.Ed. 645.

It has been held applicable and liberally applied to criminal cases. Hospital records are admissible in evidence. People v. Kohlmeyer, 284 N.Y. 366, 31 N.E.2d 490. Similarly the medical examiner's report may and frequently is received in evidence. Thus even under the strict rule of Lemon, supra, defendant is entitled to pre-trial inspection of these records.

But much has transpired since Judge Cardozo foresaw the 'beginnings' and 'glimmerings' of the doctrine that criminal courts have an inherent power in furtherance of justice to compel discovery of documents.

The Federal Courts now permit in broadest terms a right of pre-trial discovery and inspection. Federal Rules of Criminal Procedure, rules 16, 17(c), 18 U.S.C.A. Many states, including New Jersey, have adopted similar rules. N.J.Rules 2:5-8(c), R.R. 3:5-10(c); State v. Cicenia, 6 N.J. 296, 78 A.2d 568; State v. Tune, 17 N.J. 100, 110 A.2d 99. How far other states have gone is evident from an examination of some recent decisions. Discovery and inspection is extended not only to hospital and autopsy reports, but to confessions of the defendant and to statements of other witnesses. State ex rel. Mahoney v. Superior Court of Maricopa County, 78 Ariz. 74, 275 P.2d 887; Jones v. State, 213 Ark. 863, 213 S.W.2d 974; State v. Simpson, 216 La. 212, 43 So.2d 585; State v. Leming, 217 La. 257, 46 So.2d 262; Vann v. State, Fla., 85 So.2d 133. Pre-trial inspection of an autopsy report was permitted in a recent California case. Walker v. Superior Court, In and For Mendocino County, 155 Cal.App.2d 134, 317 P.2d 130.

Some states reject the rule that pre-trial discovery and inspection may extend to the defendant's admissions or confessions or to witnesses statements. This is on the theory, that efforts may be made to pattern a defense or to suborn the witnesses. But very few states now refuse discovery or inspection of physical evidence, public documents or written reports of autopsies, chemical analyses or blood tests. These cannot be altered. There is no purpose served in denying the defendant access to these records unless indeed the People have so great an interest in convicting accused parties as to justify interposing every and any obstacle to the disclosure of facts.

There is a practical aspect to this problem which is certainly worthy of consideration. In the disposition of thousands of cases in this Court, I have never known the district attorney to refuse to open his files to defendant's counsel long before trial for the purpose of effecting a satisfactory disposition. If a defendant's admissions and confessions, witnesses statements and documentary records are so frequently voluntarily disclosed what objection in reason can there be to a disclosure by order of a court. In the trial of many hundreds of cases, I have never known one when the People have been or could have been prejudiced by the disclosure of documents or records. On the other hand I have known many where earlier disclosure would have accelerated the trial and a few where such disclsoure would have prevented a failure of justice. People v. Gezzo, 307 N.Y. 385, 121 N.E.2d 380; People v. Lowe, 285 App.Div. 207, 136 N.Y.S.2d 454. The desire that the State's evidence remain undisclosed until trial partakes of the nature of a game rather than judicial procedure. The state ought to be too jealous of according a defendant a fair and impartial trial to hinder him in intelligently preparing his defense. The dogma that the people's case must at all cost remain secret has been oversold, and contra, its potential for good, underestimated.

Another reason often exists for allowing a defendant pre-trial discovery and inspection. Judge Cardozo in Lemon supra, speaks of a discovery and inspection 'adequate to prevent a failure of justice.' 245 N.Y. at page 29, 156 N.E. at page 85. The Lemon case was decided before the decisions of the United States Supreme Court defining procedural due process. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9. Any action or omission by the district attorney which prevents a defendant from presenting evidence which may establish his innocence may now...

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