Witness Statements
In New York State during a criminal trial or a criminal pretrial hearing, the prosecution is required to give to the defense any prior written or recorded statements of a witness who the prosecution will call to testify at trial or during a hearing. This is known as the Rosario Rule pursuant to People v Rosario, 9 NY 2d 286 and CPL 240.44, 240.45.
Reason for the Rosario Rule
A prior witness statement is useful during cross-examination. Many times prior statements will contain omissions, contrasts, or contradictions that can be used by the criminal defense attorney to attack the prosecution's witnesses. At the very least, prior inconsistent statements can be used to attack the witness's credibility.
Types of Rosario Written Statements
1. Police officer's notes
2. Notes made by the prosecution during the interview of a witness
3. Affidavits in support of search warrants
4. Videotaped interviews
5. Tape recordings, including voicemail messages
6. Arrest reports
7. Police "blotters"
8. 911 tapes
9. Grand Jury testimony
10. Undercover officer's notes
It is important for the criminal defense attorney to review these statements and use them to attack the prosecution's witnesses. The top criminal defense attorneys pay very close attention to prior statements since it is common that stories may change over time and it can give insight into the prosecution's strategy of the case.
Defense Obligation
The criminal defense attorney also has an obligation to turn over defense witness's prior recorded statements. Recorded statements of the defendant do not and must not be disclosed. A criminal defense attorney should not ask a witness to write any notes or take notes to limit the information that may need to be disclosed to the prosecution.
The Rosario rule is an important tool in every criminal case including DWI trials and even traffic matters.