A few months ago North Carolina changed the rules for discovery in criminal cases. Prosecutors are
required to turn over all reports and documents prepared in the course of an investigation. This should be an unremarkable provision.
If the state is going to try to convict someone of a crime it ought to have to lay its cards on the table. The changes
in the law followed a series of high-profile cases in where prosecutors withheld evidence favorable to the accused resulting
in convicting the innocent. (For example,
Alan Gell and
Darryl Hunt).
Getting compliance though is still tricky. I have a run of the mill case where I requested access to the reports
so I could photocopy them. Since I have not seen the prosecution file I don't know how big it is but my guess is that
we are well under 50 pages. Here was the response I got:
STATE: You can look at the file in the DA's office but you cannot make copies.
ME: The statute says the file must be made available for photocopying.
STATE: My legal assistant does not have time to make copies for you.
ME: I am willing to make the copies myself.
STATE: I don't want the file to leave my office.
ME: When can I get copies, then?
STATE: We won't release copies until they have been Bates-stamped by my assistant so there is a record.
ME: How long will that take?
STATE: We don't produce discovery unless the case is going to trial. My legal assistant is very busy with murder
cases.
ME: The statute does not say that I am entitled to discovery only if I am going to trial.
STATE: The statute has no deadline for disclosure.
ME: How long do you need? 30 days? 60 days? 90 days?
STATE: This conversation is over.
This type of crap is what I hate about practicing law. I can't believe I am having to argue with another adult about
photocopying fewer than 50 pieces of paper. It is asinine to require me to go into a little room and read police reports
and make notes rather than get copies. I can't think of one good reason for that. It is sad this all has to happen
on the taxpayer's dime.
This post about washing
everything that comes from the grocery store reminded me of a day in court a few years ago.
A defendant plead guilty to shoplifting a package of steaks from a grocery store. He had stuffed some steaks in
pants, a common M.O. The judge asked the store security person the usual question, "was the merchandise recovered and
resellable?"
"Yes," said security man.
This means some unlucky customer went home with some beef that had spent time (though brief) inside someone's pants.
I won't give the name of the store but it rhymes with Crude Mayan.
Judges and other persons who may be empowered to administer oaths, shall (except in the cases in
this Chapter excepted) require the party to be sworn to lay his hand upon the Holy Scriptures, in token of his engagement
to speak the truth and in further token that, if he should swerve from the truth, he may be justly deprived of all the blessings
of that holy book and made liable to that vengeance which he has imprecated on his own head. (
N.C. Gen. Statute 11-2)
Guilford County judge W. Douglas Albright has
forbidden the use of the Koran in courtrooms for swearing in witnesses. Albright told the News & Record that an oath taken on the Koran is not
an oath under the law because the statute requires an oath on the Holy Scriptures.
He said "Everybody understands what the holy scriptures are, if they don't we are in a mess."
It appears that Muslims called as witnesses are limited to
affirming (which includes no reference to a supreme being).
I don't agree with the judge's reasoning. There is a principle of statutory construction that goes something
like this: when a statute can plausibly be construed in different ways the court should avoid a construction that causes
constitutional problems. Construing "Holy Scripture" to mean the Bible only would cause serious constitutional problems.
It puts the courts in the position of preferring the Bible over other religious texts. That seems a clear violation
of the Establishment Clause. Construing "Holy Scripture" to mean the holy book of that person's religion avoids any
Establishment Clause problems. Notaries, who are authorized to administer oaths in North Carolina, are instructed that
a person taking an oath should use the book that corresponds to his religious beliefs, the Old or New Testament, the Koran
or the Bhagavad-Gita.
It is a shame the Guilford County judges couldn't just accept the Korans and instead went out of their way to
create a federal case out of this.
A couple of interesting things I ran across while looking into this:
-
According to an 1856 North Carolina case (Shaw v. Moore 49 N.C. 25) under English common law "infidels," which inlcuded
Jews, could not be sworn as a witnesses or testify. That case seemed to hold that anyone who feared religious sanction
(whether in this life or the afterlife) as a result of lying under oath could testify regardless of religion.
-
An spokesman for the Administrative Office of the Courts said the law requires a person to fear both spiritual
and temporal punishment for false testimony in order to be a competent witness. That seems to be the holding of the
few cases that cover the point. The position would prevent the testimony of an atheist who believed that there was no
spiritual consequences for false testimony or a religious person who felt that God was OK with false testimony. If this
is true what is the result when a person is subpeonaed to testify but after appearing states that he does not believe there
were any spiritual consequences for lying?
-
There is always someone who brings up a ridiculous hypothetical the contributes nothing to resolution of the controversy,
here it was the spokesman who was quoted as asking what if a person said they worshipped brick walls and wanted to take an
oath on a brick?
Also blogged at Sue's Place.
