With witnesses under persistent attack, it is troubling that the D.C. Public Defender Service is pushing for a new rule that would give defendants on trial for violent crimes early access to the identities of those who will testify against them [Local Opinions, Oct. 30]. This would give these defendants the opportunity to target for intimidation and violence the individuals whose words could send them to jail for decades. The District should forgo any rule that endangers witnesses and creates a chilling effect that discourages other citizens from testifying.
Underlying the argument for open-file discovery is the claim that critical information is first disclosed to the defense at trial, providing little or no time for the defense to investigate or use that information. That is simply not true. The law already requires the government to turn over in a timely fashion information that is favorable to the defendant.
In D.C.’s local court, the parties abide by criminal discovery rules that are, in all material respects, identical to those used in the federal courts and that have been sanctioned by the U.S. Supreme Court. Those rules are crafted to achieve a delicate balance between the rights of defendants and public safety. In violent-crime cases, criminal defendants can adequately prepare for trial without early access to witness identities. Prosecutors can provide information favorable to the defendant and even make witnesses available to the defense without disclosing their names or addresses.
As a former defense attorney, I understand the Public Defender Service’s desire to tip the careful balance established by discovery rules in favor of their clients. But our criminal justice system is not designed to maximize defendants’ chances of acquittal. Our system is designed to protect the innocent and to punish the guilty.
To lend support for a new rule mandating earlier disclosure of witness identities, the Public Defender Service reaches back more than five years to a case where the court found the prosecutor should have shared additional information with the defense. That case — which occurred long before the U.S. attorney’s office implemented more expansive discovery policies — was one of more than 20,000 handled by our office that year alone. Disclosure errors identified by the public defender make up just one-hundredth of 1 percent of the criminal cases we handle. An outlier case does not justify radical change.
Early disclosure of witness information imposes real costs on victims, witnesses and entire communities in jurisdictions where it has been implemented. In Philadelphia, the costs are striking: 13 witnesses or relatives of witnesses killed over a decade and hundreds of people arrested every year for harming or threatening witnesses. Lawmakers there are scrambling for solutions to put an end to witness intimidation.
Similarly, the argument that the Maryland attorney general’s office has implemented an open-file approach fails to recognize that office does not routinely prosecute violent crimes. Violent crimes in Maryland are typically prosecuted by state’s attorneys, many of whom joined me at the summit last week to address the problem of witness intimidation.
We cannot afford to be indifferent to the risks that early-identity disclosure poses to victims and witnesses. Much of our success in driving down crime over the last decade is the consequence of greater cooperation from courageous residents. By working together with law enforcement, residents are finally getting the upper hand on criminals who for too long inflicted violence on our neighborhoods with impunity. Let’s not sacrifice these hard-won gains by putting witnesses’ safety at risk.
The writer is U.S. attorney for the District of Columbia.
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