People v. Stokes

• Citation: 204 N.Y.S.2d 827,24 Misc.2d 755
• Parties: PEOPLE of The State of New York v. Robert STOKES, Defendant.
• Decision Date: 06 September 1960
• Court: New York Court of General Sessions

Page 827

204 N.Y.S.2d 827

24 Misc.2d 755

PEOPLE of The State of New York v. Robert STOKES, Defendant.

Court of General Sessions, New York County.

Sept. 6, 1960.

Frank S. Hogan, Dist. Atty., New York County, for the People; by Vincent J. Dermody and Leonard H. Sandler, New York City, Asst. Dist. Attys.

Joseph Aronstein, Carson DeWitt Baker, Hyman Vogelstein, New York City, for defendant; I. Louis Friedman, New York City, of counsel.

ABRAHAM N. GELLER, Judge.

Defendant, charged with the crime of murder in the first degree, moves for permission to inspect pretrial the medical examiner's autopsy report on the deceased, the police (Bureau of Criminal Identification) record of the deceased, as well as certain written statements made by defendant to law enforcement authorities.

The alleged homicide occurred ten years ago in July, 1950. Defendant was taken into custody nine years thereafter, in July, 1959, when he made two separate statements, one prepared by the authorities and signed by him, the other being oral and transcribed by a stenographer. Although the statements are claimed to be exculpatory, rather than incriminatory, it seems clear from the papers and oral argument that they may be admissible as partial admissions and that the People intend to offer them at the trial. Considering first the request for the statements, it should be noted that we are not dealing here with the question of their availability to defendant at the trial. We are concerned solely with their availability prior to trial. The questions to be decided are whether the court has power to order pretrial disclosure of such statements and, if so, whether sufficient grounds appear to warrant such disclosure.

At early common law, the courts were deemed powerless to compel disclosure of items of prosecution evidence to the accused. 6 Wigmore, Evidence §§ 1845, 1859(g) (3d ed. 1940). As late as 1927, the New York Court of Appeals in the leading case of People ex rel. Lemon v. Supreme Court of State of New York, 245 N.Y. 24, 156 N.E. 84, 52 A.L.R. 200, held that the trial court had no power to order disclosure of notes and memoranda which were not admissible in evidence and left open the question whether it could be ordered even where the items were admissible. Today, however, despite some views to the contrary, it seems to be generally agreed that a court has the discretionary power to direct discovery of items in possession of the prosecution which are admissible in evidence. Silver v. Sobel, 7 A.D.2d 728, 180 N.Y.S.2d 699; People v. D'Andrea, 20 Misc.2d 1070, 195 N.Y.S.2d 542; People v. Higgins, 21 Misc.2d 94, 196 N.Y.S.2d 221, 222; People v. Wilson, 17 Misc.2d 349, 183 N.Y.S.2d 669; People v. Grassgreen, N.Y.L.J., July 27, 1960, p. 7 (Westchester Co.); Comment, Pre-Trial Discovery in Criminal Cases, 60 Yale L.J. 626; See, also, Walker v. Superior Court, 155 Cal.App.2d 134, 317 P.2d 130 and State ex rel. Sadler v. Lackey, Okl.Cr., 319 P.2d 610 where discovery was ordered as to items not ordinarily admissible in evidence. And an increasing number of courts are exercising this discretionary power by directing discovery of written confessions or admissions. People v. Rogas, 158 Misc. 567, 287 N.Y.S. 1005; People v. D'Andrea, supra; State v. Haas, 188 Md. 63, 51 A.2d 647; State v. Johnson, 28 N.J. 133, 145 A.2d 313; People v. Johnson, 356 Mich. 619, 97 N.W.2d 739; State v. Thompson, Wash., 338 P.2d 319; Powell v. Superior Court, 48 Cal.2d 704, 312 P.2d 698; State ex rel. Polley v. Superior Court, 81 Ariz. 127, 302 P.2d 263; Kaufman, Criminal Discovery and Inspection of Defendant's Own Statements in the Federal Courts, 57 Col.L.Rev. 1113; Grady, Discovery in Criminal Cases, Univ.Ill.Law F., Fall, 1959.

Indeed, the District Attorney, apparently acknowledging the trend toward liberal discovery rules with respect to written confessions and admissions, bases his opposition not so much on a lack of power in the court to make the statements available to defendant but on the insufficiency of defendant's showing in support of such relief. He argues that making a defendant's statement available to him in advance of trial would give him the opportunity to fabricate appropriate defenses or perjuriously explain away damaging admissions or inconsistencies and that the courts should therefore proceed cautiously in this relatively unchartered area and require a most compelling showing before granting inspection of confessions until the feared danger of increased perjury can be more realistically appraised in the light of practical experience. The District Attorney then concludes that the basis set forth for the requested relief is not compelling in that there is no claim by defendant himself that he has actually forgotten the details of his statements to the authorities, and that there is no showing that factual investigation would be significantly facilitated by inspection of the statements in advance of trial.

The fear that discovery, particularly in criminal cases, results in fabrication of evidence and perjury is an old one. 'Perjury is one of the great bugaboos of the law. Every change in procedure by which disclosure of the truth has been made easier has raised the spectre of perjury to frighten the profession.' Sunderland, Scope and Method of Discovery Before Trial, 42 Yale L.J. 863, 867. The validity of this fear has been thoroughly debated and analyzed in the cases and by commentators. See, e. g., State v. Johnson, 28 N.J. 133, 145 A.2d 313, supra; State v. Tune, 13 N.J. 203, 98 A.2d 881; People v. D'Andrea, 20 Misc.2d 1070, 195 N.Y.S.2d 542, supra; Fletcher, Pretrial Discovery in State Criminal Cases, 12 Stanford L.Rev. 293. It is therefore sufficient at this time to state that this court shares the views expressed in the convincing and well-considered opinions of Sobel, J. in People v. D'Andrea, supra, and of Weintraub, C. J. in State v. Johnson, supra, that the fear of perjury resulting from pretrial discovery of written confessions is exaggerated and unsubstantiated.

Concededly, such liberalization of discovery in criminal cases may result in some perjury in specific instances. But surely it is neither rational nor just to base upon this assumption alone a general practice of denying all defendants the opportunity to examine their written statements in advance of trial. 'The true safegard against perjury is not to refuse to permit any inquiry at all, for that will eliminate the true as well as the false, but the inquiry should be so conducted as to separate and distinguish the one from the other, where both are present.' Sunderland, op. cit., supra, at p. 868. And Professor Wigmore said as follows: 'The possibility that a dishonest accused will misuse such an opportunity is no reason for committing the injustice of refusing the honest accused a fair means of clearing himself.' 6 Wigmore, Evidence § 1863. Hence, the more rational and just practice would be one where the court grants or denies discovery of such statements on the basis on the facts in each case after evaluating the possibility and extent of perjury and balancing it against other considerations related to the ultimate purpose of a criminal trial.

The purpose of a criminal trial is to determine the true facts from among those in issue. Our system of justice is based on the assumption that the adversary proceeding, wherein the parties are responsible for developing the facts for the trier of fact, is best suited to ascertaining the truth. And pretrial discovery and inspection generally foster a more thorough development of the facts at the trial by reducing the elements of concealment and surprise which typified common law trials (6 Wigmore, Evidence § 1845(a)) and which are still too prominent in today's criminal fact-finding process. See, Orfield, Criminal Procedure from Arrest to Appeal 321-3 (1947). Earlier this year the First Department reminded us in Matter of Roland, 10 A.D.2d 263, 265, 198 N.Y.S.2d 792, 794, of 'the policy of this Department to extend the effectiveness of disclosure proceedings.' It is therefore an anomaly that in criminal actions, where defendants are subject to loss of liberty or life, discovery procedures lag far behind those in civil actions.

Also to be considered in the conduct of a criminal trial are the 'fundamental requirements of fairness' (Roviaro v. United States, 353 U.S. 53, 69, 77 S.Ct. 623, 628, 1 L.Ed.2d 639) to which a defendant is entitled. Included among these requirements is the right of a defendant to prepare his defense (Roviaro v. United States, supra). And, in view of the often crucial role of a confession in a criminal trial, an opportunity for defendant to examine it pretrial may be necessary for him to adequately prepare for trial. As the court pointed out in State v. Johnson, 28 N.J. 133, 137, 145 A.2d 313, 316, supra:

'We must be mindful of the role of a confession. It frequently becomes the core of the State's case. It is not uncommon for the judicial proceeding to become more of a review of what transpired at headquarters than a trial of the basic criminal event itself. No one would deny a defendant's right thoroughly to investigate the facts of the crime to prepare for trial of that event. When a confession is given and issues surrounding it tend to displace the criminal event as the focus of the trial, there should be like opportunity to get at the facts of the substituted issue. Simple justice requires that a defendant be permitted to prepare to meet what thus looms as the critical element of the case against him.'

It should also be borne in mind that a confession is ordinarily obtained in a tension-filled atmosphere and in a setting structured by the authorities. Hence, although the defendant may in fact have been at the scene of the criminal event or otherwise involved in it, his written statement may not always reflect accurately the extent of his involvement or exculpatory facts which may affect the...