MA Court: Defense Must Share Cross-Examining Info


A divided Massachusetts Supreme Judicial Court ruled yesterday that prosecutors are entitled to know before trial what evidence criminal defense lawyers plan to use to cross-examine the state’s witnesses, reports the Boston Globe. Prosecutors say the decision the playing field; defense lawyers say it subverts the judicial system. By a 4-3 vote, the state’s high court said trial judges can order defense lawyers to share evidence they have gathered and intend to use to impeach the credibility of prosecution witnesses, including witness statements, documents, and recordings.

Under rules of evidence across the country, prosecutors already must turn over the findings of criminal investigations to defense lawyers. Most states, including Massachusetts, have required defendants to provide the prosecution only with evidence their own witnesses were expected to testify about, not what the defense had learned to challenge government witnesses. That is unfair, the high court said, even if the state typically has greater resources than defendants. Chief Justice Margaret Marshall, dissenting, said the decision deprives defense lawyers of one of their most potent and constitutionally protected weapons: the ability to surprise a prosecution witness during cross-examination with evidence that shakes his or her testimony. In recent years, courts across the country have updated their rules of criminal procedure to require more sharing of information before trial.


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