OF COUNSEL. BRIAN P. KEENAN: BRIAN KEEN. CLAUDE CAROLINE HEFFRON:
CLAWED CAR LINE HELP RON MAN MAN MATH ANDLY FOR THE STATE. CHIEF JUSTICE RABNER:
GOOD MORNING COUNSEL AND WELCOME. MR. KEENAN AND, PLEASE GO AHEAD.
BRIAN P. KEENAN: KEEN, MAY I RESERVE TWO MINUTES FOR REBUTTAL. CHIEF JUSTICE
RABNER: THAT'S FINE. BRIAN P. KEENAN: MAY IT PLEASE THE COURT THE COURT,
THIS CASE IS NOT ABOUT WHETHER A DEFENSE CORPS DE POSITIVES TOWER CRIME ASSESSED
BY THE STATE OR SICK VENTING THE DEFENSE ATTORNEY TO TURN OVER PHYSICAL FRUITS OF
A CRIME. RULING IN FAVOR OF THE DEFENSE HERE WILL DO NEITHER. THIS CASE IS
ABOUT THE NATURE AND PURPOSE OF THE DISCOVERY PROCESS AND THE OBLIGATIONS OF THE
DEFENSE THERE IN. THE PURPOSE OF THE DISCOVERY IS TO PREVENT TRIAL BY
SURPRISE AND TO ALL THE PARTIES LEGAL ANALYSIS AND FOR THE TRIAL COURT TO PRESENT
RIGHT-HAND ARGUMENTS TO THE JURY BASED ON EVIDENCE THAT WILL BE PRESENTED.
OUR COURTS HAVE REPEATEDLY STATED THAT DISCOVERY IS NOT A TOOL FOR THE STATE
TO BUILD ITS CASE AGAINST THE DEFENDANT. AS I NOTED IN MY BRIEF IN ADDITION TO THE
FEDERAL COURTS 38 STATE COURTS EXPLICITLY EXPERIMENT MATERIALS DEFENSE DOES NOT
INTEND TO INCLUDE AT TRIAL. THE LANGUAGE OF OUR COURT RULES ON THE DEFENSE TO DISCOVERY
OBLIGATIONS FOR ALMOST 50 YEARS IS CONSISTENT WITHOUT LIMITATION. THE
DECISION IN FAVOR OF DEFENSE WILL UP HOLD THE WRONG UNDERSTOOD PRINCIPLES OF
DISCOVERY WHILE PROTECTING THE DEFENDANT'S RIGHTS TO COUNSEL TO REMAIN SILENT AND
TO DUE PROCESS. THE TRIAL COURT'S EXISTING ORDERS ALLOWED TO STAND IF SUCH AN AFFIDAVIT
EXISTS IN THE POSSESSION OF DEFENSE COUNSEL THE IT WILL NOT GET TO ACCESS AN
AFFIDAVIT BUT THEY WILL ALSO BE ABLE TO TELL THE DEFENDANT IN VIE LEGS OF THOSE
RIGHTS. ADDITION IN FAVOR OF DEFENSE WILL DO NOTHING TO INHIBIT THE STATE'S
ABILITY TO OBTAIN SUCH EVIDENCE. THE STATE CAN SEEK A SUBPOENA TO ATTEMPT TO OBTAIN
SUCH MATERIAL FROM DEFENSE COUNSEL IN ITS INDIVIDUAL CAPACITY. THE CASE LAW
IN THE CONTEXT IS SUBSTANTIAL. IT PROVIDES FOR SAFEGUARDS NECESSARY TO ASSURE
THAT A DEFENDANT'S RIGHTS TO REMAIN SILENT TO COUNSEL ARE RESPECTED. ADDITIONALLY
AS NOTE IN THE ATTORNEY GENERAL'S BRIEF LAWS PROHIBITING OBJECTING INSTRUCTION OF
THE STATE'S OBJECTION AND ATTORNEYS ETHICAL OPERATIONS PROVIDE ADDITIONAL MEANS
FOR THE STATE TO RECEIVE SUCH MATERIALS FROM THE DEFENSE COUNSEL WHERE APPROPRIATE.
A DECISION IN FAVOR OF THE STATE WILL UP END THE FUNDAMENTAL UNDERSTANDING
THAT EVERY DEFENSE LAWYER IN THIS STATE HAS ABOUT THEIR DISCOVERY OBLIGATIONS
AND SO DISTRUST BETWEEN LAWYERS AND THEIR CLIENTS. BUILDING TRUST BETWEEN
DEFENSE ATTORNEY AND THEIR CLIENT IS ON WHICH A DIFFICULT PROCESS. ESPECIALLY WHEN
THE CLIENT IS LET BAD I APPOINTED ATTORNEY THEY DID NOT CHOOSE. CLIENTS IN
THESE SITUATIONS OFTEN BELIEF THAT THEIR ATTORNEYS ARE WORKING WITH THE
PROSECUTOR AGAINST THEIR THERE WAS. CREATING A RULE WHERE BY A CLIENT WHO RECEIVES
SUCH AN AFFIDAVIT WILL BE INCULPATED BY THE ATTORNEY SEEKING LEGAL ADVISES WOULD
FURTHER ERODE THAT TRUST AND VIOLATE THE STATE AND FEDERAL PROTECTIONS AGAINST
SELF INCRIMINATION. MOREOVER, AS THE THE RACK LAD NOTES IN ITS CLIENTS CASES
IN VIOLATION OF THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY CREATING A
SITUATION WHERE THEY'RE RELUCTANT TO RECEIVE FACIALLY EXCULPATORY INFORMATION FROM
UNANIMOUS SOURCES OR OTHER CLIENTS WHICH THEY COULD BE FORCED TO TURN OVER
TO THE STATE WITHOUT PROTECTION BASED ON ALLEGATIONS OF CRIMINALITY. FOR THESE
REASONS THIS COURT SHOULD REVERSE THE TRIAL COURT'S DISCOVERY ORDER. CHIEF
JUSTICE RABNER: ARE YOU DONE WITH YOUR OPENING STATE. BRIAN P. KEENAN:
I AM. CHIEF JUSTICE RABNER: THERE'S NO ASSERTION BY THE DEFENDANT IN THIS CASE
THAT EITHER COUNSEL OR DEFENSE INVESTIGATOR HAD ANY ROLE IN THE PREPARATION
OF THIS AFFIDAVIT, IS THAT CORRECT. BRIAN P. KEENAN: THAT'S CORRECT.
CHIEF JUSTICE RABNER: IT'S SIMPLY THE STATE CERTIFYING THAT THEY BELIEF A THIRD PARTY
HANDED IT OVER TO DEFENSE COUNSEL. BRIAN P. KEENAN: THAT'S CORRECT. THAT'S
JUST A BELIEF NOT BASED ON ANY INFORMATION. CHIEF JUSTICE RABNER: I KNOW
YOU SAID AT THE OUTSET WHAT THIS CASE NOT ABOUT. BUT TELL US WHAT WOULD THE
OBLIGATION BE IF A MURDER WEAPON IN A HOMICIDE CASE HAD BEEN TURNED OVER BY
THE DEFENDANT OR A THIRD PARTY TO COUNSEL. BRIAN P. KEENAN: YOU SHOULD RULE
3.4 OF THE DEFENSE COUNSEL WOULD HAVE AN OBLIGATION TO TURN THAT OVER AND INDEED
IF SOMETHING LIKE THAT WERE TO APPARENTLY HANDED TO DEFENSE COUNSEL THEY SHOULD
REFUSE TO TAKE IT AND INDICATE THAT IT SHOULD BE. JUSTICE PATTERSON: I'M
SORRY COULD YOU SLOW DOWN A BIT PLEASE. CHIEF JUSTICE RABNER: SO HERE
WE HAVE AN ASSERTION BY THE STATE AND THIS AFFIDAVIT IS TANGIBLE PROOF OF A CRIME.
THE CRIME OF WITNESS TAMPERING. CONCEPT TALLY HOW DOES THAT DIFFER FROM A MURDER
WEAPON IN A HOMICIDE CASE THAT'S BEEN TURNED OVER TO THE DEFENSE ON ATTORNEY.
BRIAN P. KEENAN: WELL FIRST THE AFFIDAVIT IS NOT FACIALLY INCULPATORY.
IT'S FACIALLY EXCULPATORY AND THE DEFENSE COUNSEL WOULD HAVE AN OBLIGATION
TO THEIR CLIENT TO RECEIVE SUCH INFORMATION AND TO INVESTIGATE IT AND TO FIGURE
OUT ITS FERIAS AT THE. CHIEF JUSTICE RABNER: BUT THE REQUEST NOT FOR
ANYTHING THAT COUNSEL MAY HAVE DONE TO INVESTIGATE IT. IT'S FOR THE AFFIDAVIT
ITSELF CORRECT. BRIAN P. KEENAN: THAT'S CORRECT. CHIEF JUSTICE
RABNER: HOW HOW DOES THE AFFIDAVIT ITSELF DIFFER FROM THE MURDER WEAPON. BRIAN
P. KEENAN: IT DIFFERS IN THE FACT THAT DEFENSE COUNSEL WOULD HAVE TO TAKE IT IN
THE FIRST PLACE AS OPPOSED TO THE MURDER WEAPON WHICH THEY MIGHT SAY REFUSE.
IN EITHER CASE THERE IS AN ETHICAL OBLIGATION TIED TO THE FRUITS, THE
ALLEGED FRUITS OF THE WITNESS TAMPERING CHARGE T DIFFERENCE IS THAT --
JUSTICE WAINER APTER: HOW CAN IT NOT BE INCULPATORY AS TO THE WITNESS TAMPERING
CHARGE. I UNDERSTAND WHY IT WOULDN'T BE AS TO THE ORIGINAL CHARGE BUT AS TO
THE SUPERSEDING INDICTMENT FOR CONSPIRACY TO COMMIT WITNESS TAMPERING, WOULDN'T
IT BE FACIALLY INCULPATORY AS TO THAT. BRIAN P. KEENAN: IT WOULD BE. IT WOULD
BACK UP THOSE ALLEGATIONS, IT WOULD BE BUT DEFENSE ATTORNEY AT THE TIME THAT
THEY'RE RECEIVING IT WOULDN'T KNOW THAT. AND SO THEY WOULD WANT TO TAKE IT
IN AND INVESTIGATE IT. JUSTICE FABIANA PIERRE-LOUIS: CAN YOU FINISH ANSWERING
THE QUESTION THE CHIEF ASKED THE DIFFERENCE BETWEEN THE GUN AND THIS AFFIDAVIT
I THINK YOU WERE GETTING THERE. I WANTED TO HEAR. BRIAN P. KEENAN: THE
DIFFERENCE BEING THE AFFIDAVIT IS ONLY INCULPATORY IF WE BELIEVE WHAT THE
INITIAL -- THE OTHER EYES KNIGHT HAD TO SAY ABOUT IT. ON ITS FACE IT DOESN'T APPEAR
TO BE SOMETHING THAT'S INCULPATORY OF DEFENDANT. IT APPEARS TO EXCULPATORY.
ONLY WHEN WE LEARN YOU KNOW WHAT ZAY'S ALLEGATIONS ARE IN CONNECTION TO THE
PRODUCTION OF THAT AFFIDAVIT AT THAT POINT THAT CALLS INTO QUESTION YOU KNOW
WHETHER THIS IS NOW THE FRUIT OF A CRIME. JUSTICE FABIANA PIERRE-LOUIS:
COULDN'T YOU MAKE THE SAME ARGUMENT WITH REGARD TO A GUN IF SOMEONE WERE TO
PRESENT A GUN ALLEGEDLY USED IN THE COMMISSION OF A CRIME YOU COULD MAKE THE
SAME ARGUMENT THE GUN IN AND OF ITSELF HAS NOT YET BEEN TIED TO THE MURDER WEAPON
UNLESS FURTHER STEPS ARE TAKEN AND THERE'S AN INVESTIGATION DONE SO COULDN'T
YOU MAKE THE SAME ARGUMENT. BRIAN P. KEENAN: YEAH I THINK IN CERTAIN
CIRCUMSTANCES LIKE A GUN WOULD NEED TO BE INVESTIGATED BY DEFENSE COUNSEL BUT
ULTIMATELY THAT WOULD NEED TO BE TURNED OVER TO THE STATE ALSO TO DO TESTING
ON IT. THERE WOULD NEED TO BE PROTECTIONS IN TURNING THE GUN OVER TO THE STATE,
THERE ARE CASES OUT THERE PEOPLE V LOOK FOR EXAMPLE WHERE SOMETHING COMES TO DEFENSE
COUNSEL, THAT'S OBVIOUSLY INCULPATORY, THE SNEAKERS IN THAT CASE. BUT IN CASES
WHERE THERE IS A GRAY AREA YOU KNOW THE STATE OR THE DEFENSE COUNSEL SHOULDN'T
ALTER YOU KNOW THE ITEM THAT COMES INTO THEIR POSSESSION IN ANY WAY. BUT THEY
MIGHT NEED TO DO SOME INVESTIGATION PARTICULARLY IN THIS CASE WHERE WE HAVE
THIS AFFIDAVIT WHICH ONLY BECOMES INCULPATORY BASED ON THE ALLEGATIONS FROM ZAY
YOU KNOW DEFENSE COUNSEL MAY HAVE SOME PAUSE AS TO TURNING THAT OVER AT THIS
POINT OR UNTIL THIS LITIGATION IS RESOLVED YOU KNOW TRYING TO DETERMINE --
DEFENSE TOWN. JUSTICE PATTERSON: I'M SORRY WHAT LITIGATION ARE YOU REFERRING
TO. BRIAN P. KEENAN: WHAT WE'RE TALKING ABOUT HERE IN ADDITION TO. Q (By
Justice Patterson) YOU'RE TALKING ABOUT THE DEFENDANT'S -- THE PROSECUTION OF THE
DEFENDANT IS THAT RIGHT UNDER THE SUPERSEDING INDICTMENT THAT BRINGS IN THE WITNESS
TAMPERING CONSPIRACY CHARGE? BRIAN P. KEENAN: NOT IN THE CASE IS RESOLVED
BUT YOU KNOW THE CASE. CHIEF JUSTICE RABNER: YOU MEAN THE OUTCOME OF THIS
ARGUMENT. BRIAN P. KEENAN: YEAH, YEAH, YEAH. SO ULTIMATELY I THINK THAT WOULD
HAVE TO BE TURNED OVER BASED ON THE GRAND JURY'S INDICTMENT ON THOSE CHARGES.
CHIEF JUSTICE RABNER: SO AGAIN ULTIMATELY YOU BELIEVE THE AFFIDAVIT
WOULD HAVE TO BE TURNED OVER. YOU CAN SHORTCUT THIS ARGUMENT THEN.
BRIAN P. KEENAN: I ULTIMATELY BELIEVE THAT THE PROPER WAY TO TRY TO GET THIS IS
A SUBPOENA. AND I'M NOT -- CANNOT PREJUDGE HOW ANY ARGUMENTS COUNSEL MIGHT
MAKE ABOUT THAT BLOW BUT IN THE NORMAL CASE WE'RE TALKING ABOUT SOMETHING THAT'S
BEEN DECLARED. CHIEF JUSTICE RABNER: UP UNTIL NOW HAS THE DEFENSE SUGGEST THAT
HAD A SUBPOENA WOULD BE ADEQUATE IMPORTANT THE DISCLOSURE OF THIS AFFIDAVIT.
BRIAN P. KEENAN: ULTIMATELY AS I SAID I CAN'T PREJUDGE WHAT ARGUMENTS
DEFENSE COUNSEL MIGHT MAKE IN SUBPOENA CONTEXT BUT THAT WOULD BE THE RIGHT WAY
TO GO ABOUT GETTING THIS ITEM. JUSTICE FABIANA PIERRE-LOUIS: IT DOES SEEM
YOU ARGUE IN YOUR GRIEF EITHER A SUBPOENA OR SEARCH WARRANT WOULD HAVE BEEN THE
PROPER METHOD BUT THEN ARGUE THAT EVEN IF A SUBPOENA OR SEARCH WARRANT HAD BEEN
SERVED THIS AFFIDAVIT STILL WOULD BE FROM DISCLOSURE. IS THAT WHAT THE ARGUMENT.
BRIAN P. KEENAN: I CAN'T PREJUDGE WHAT YOU KNOW WOULD TRANSPIRE IN THAT
SORT OF CONTEXT. I'M ARGUING THAT IF THE ITEM WAS IN THE HANDS OF THE DEFENDANT,
THE SEARCH WARRANT WOULD BE PROPER IF IT'S IN THE HANDS OF DEFENSE COUNSEL
THE WAY TO GO ABOUT THAT IS TO GET A SUBPOENA. JUSTICE PATTERSON: WHAT
DOES THAT MEAN. YOU'RE SAYING THAT PROCEDURALLY PROPER BUT YOU ARE NOT
SAYING THAT IT WOULD -- THAT THE AFFIDAVIT WOULD BE IF IT EXISTS WOULD BE
PRODUCIBLE IN RESPONSE TO THAT. BRIAN P. KEENAN: THE CASE LONG SEEMS TO STRONGLY
INDICATE THAT IT WOULD BE. BUT AGAIN, I DON'T KNOW THE NATURE -- THERE'S TOO MUCH
THAT'S UNKNOWN ABOUT THIS AFFIDAVIT. I DON'T KNOW WHAT ARGUMENTS DEFENSE
COUNSEL WOULD MAKE IN OPPOSING THAT IN AN EFFORT TO QUASH THE SUBPOENA. BUT.
CHIEF JUSTICE RABNER: WHY NOT? YOU REPRESENT THE DEFENDANT IN THIS CASE.
BRIAN P. KEENAN: I REPRESENT HIM ON THIS MATTER, THIS DISCOVERY ORDER.
CHIEF JUSTICE RABNER: LET'S EXPLORE THE REASONS YOU'VE ANSWERED AS TO
WHY THIS SHOULDN'T BE TURNED OVER. YOU SAID IT WOULD CHILL AN INVESTIGATION.
HOW IS THAT THE CASE HAD HAD THE REQUEST IS FOR AN ARGUMENT THAT THE DEFENSE
HAD NO ROLE IN CREATING PERIOD? BRIAN P. KEENAN: BECAUSE AS THE ORDER SUBSTANCE
RIGHT NOW -- DEFENSE COUNSEL IS ENTIRELY PROPER IN TAKING THIS IN. WHETHER
RECEIVED THROUGH DEFENDANT OR WHETHER IT WAS RECEIVED FROM A THIRD PARTY THAT THEY
SHOULD PROBABLY TAKE THIS DOCUMENT IN AND INVESTIGATE IT. IF THE ORDER STANDS
TODAY STATE'S FOG TO BE ABLE TO GET UP THERE AND SAY HEY WE GOT THIS FROM DEFENDANT,
FROM DEFENSE COUNSEL. FURTHER INCULPATING MY CLIENT. JUSTICE PATTERSON:
ISN'T THAT SOMETHING THAT THE TRIAL COURT WOULD ADDRESS AT TRIAL. BRIAN P.
KEENAN: IT COULD AND SHOULD DO THAT. CHIEF JUSTICE RABNER: WHAT IF THIS
COURT WERE TO SAY THAT CAN'T HAPPEN. BRIAN P. KEENAN: THAT WOULD BE THE
CORRECT THING TO SAY AS WELL. HOWEVER, WE ALSO HAVE THE PROBLEM OF THIS NOT
FITTING WITHIN DISCOVERY RULES. AND IT ALSO ALL THE THIRD DEGREE THE DISCOVERY
FRAMEWORK THAT WE'VE HAD THE STATE FOR OVER 50 YEARS STARTING YOU KNOW WITH
CASES PRECEDING WILLIAMS BUT ULTIMATELY IN WILLIAMS WHERE THIS COURT ANALYZED THE
DISCOVERY RULES IN THE CASE WHERE THE STATE WAS SEEKING OR WAS ABLE TO GET DEFENSE
NOTES AND PHOTOGRAPH AND THE WAY IT ANALYZE THAT HAD QUESTION IS IT LOOKED
AT THE RUIZ AND IT LOOKED AT THE PURPOSE OF THE RULE. JUSTICE PATTERSON:
BUT WILLIAMS IS WORK PRODUCT, WHIM IS NOTES THAT ARE TAKEN BY AN ATTORNEY AND
HAVE OBVIOUSLY ALMOST GARDEN VARIETY WORK PRODUCT THAT ARE LITIGATED ALL THE TIME
AS TO YOU KNOW WHETHER THERE'S INFORMATION THERE THAT'S NOT WORK PRODUCT AND SO FOR THE.
BUT THAT IS STANDARD WORK PRODUCT. THIS IS SOMETHING AS FAR AS I CAN TELL
NOBODY IS EVEN REMOTELY INDICATING THAT THE ATTORNEY OR ANYONE INVESTIGATOR ON THE
ATTORNEY'S BEHALF HAD ANYTHING TO DO WITH. BRIAN P. KEENAN: THAT'S CORRECT.
HOWEVER IN WILLIAMS THERE WERE -- THIS WAS A DEFENSE INVESTORS NOTES OF UN,
THE INTERVIEW WITH THE STATE'S WITNESS AND ACCORDING TO THE RULE AS WRITTEN
THAT WOULD COME IN. HOWEVER, THE COURT SAID YOU CAN'T READ THE RULE JUST AS ITS
REASON. THE COURT SAID THE STATE IS READING THAT RULE TOO LITERALLY. AND
YOU NEED TO READ IN THE PURPOSE OF DISCOVERY INTO THE RULE. AND SO IN WILLIAMS
THE CASE WAS DECIDED BASED ON THE NATURE OF THE RULE AND THE PURPOSE OF DISCOVERY
IN ADDITION TO THE SIXTH AMENDMENT. JUSTICE PATTERSON: WASN'T THE COURT
SIMPLY I SAYING THE WORK PRODUCT IMMUNITY IS THE UMBRELLA OVER ANYTHING THAT MIGHT
OTHERWISE BE PRODUCE I BELIEVE UNDER THIS RULE. WE'RE NOT GOING TO READ THE
RULE TO SAY THAT IT CAN BE APPLIED IN A WAY THAT VIOLATES WORK PRODUCT. BUT
THIS SITUATION YOU'RE NOT CONTESTING THERE IS ANY WORK PRODUCT AT ALL INVOLVED HERE.
BRIAN P. KEENAN: I'M NOT AND ALSO IN WILLIAMS IT WASN'T STRICTLY WORK
PRODUCT WHAT THEY WERE CONCERNED WITH. THEY WERE CONCERNED WITH PRIVILEGED
COMMUNICATIONS AS WELL AND THAT GOES BACK LIEU THE STATES -- THE DECISIONS FROM
MELVINS, AND OTHERS. JUSTICE PATTERSON: AGAIN, PRIVILEGE IS IT WOULD BE
A VERY SERIOUS MATTER IF THESE ALLEGATIONS HAD SOMETHING TO DO WITH THE LAWYER IT'S
NOT WORK PRODUCT. IT'S NOT PRIVILEGED, THERE'S NO ROLE OF THE ATTORNEY AS FAR AS
ANYTHING IN THIS RECORD INDICATES THAT -- IN CREATING THIS AFFIDAVIT OR BEING
INVOLVED WITH PROCURING THE SIGNATURE OF THE INDIVIDUAL ON IT, NOTHING. THE
ATTORNEYS ROLE HERE IF ANY, IS TO HAVE THIS DOCUMENT. BRIAN P. KEENAN:
YES, TO RECEIVE IT AND TO BE IN POSSESSION OF IT. JUSTICE PATTERSON: WHY
IS IT IN ANY WAY GOING BACK TO THE OBLIGATION AL QUESTION OF THE CHIEF AND
JUSTICE PIERRE-LOUIS TALKED ABOUT WHERE IS IT DIFFERENT IN ANY WAY FROM A MURDER
WEAPON OR ALLEGED MURDER WEAPON THAT FALLS INTO THE HANDS OF A DEFENSE LAWYER.
BRIAN P. KEENAN: AGAIN IT'S ABOUT THE DISCOVERY RULES AND PURPOSE OF DISCOVERY
RULES. JUSTICE FASCIALE: , WHAT IS THE PURPOSE OF THE RULE THREE:-THREE.
BRIAN P. KEENAN: THE PROSECUTOR POSITIVE ONTO THE EVIDENCE PRESENTED.
THERE'S NO INTENTION FOR THIS THING TO BE PRESENT BY THE DEFENSE IN ANY WAY
SHAPE OR FORM SO THERE'S NO NEED TO PREPARE FOR IT. CHIEF JUSTICE RABNER:
COUNSEL, IN YOUR BRIEF YOU MAKE A NUMBER OF IMPORTANT CONSTITUTIONAL ARGUMENTS
THAT THERE'S A POTENTIAL VIOLATION OF THE FIFTH AMENDMENT, VIOLATION OF ONES
RIGHT TO ASSISTANCE OF COUNSEL. THIS MORNING HAS BEEN MORE PROCEDURAL
APPROACH WE SHOULDN'T BE RELY ON STORY RULES HERE. IS THAT WHERE YOU'RE PLACING
YOUR EMPHASIS. BRIAN P. KEENAN: I'M PLACING EMPHASIS BOTH. THE ISSUE HAS
BEEN ABOUT DISCOVERY -- BECAUSE THIS IS A DISCOVERY ORDER THAT'S BEFORE THE
COURT AND THAT'S THE QUESTION THAT WE NEED TO RESOLVE WHETHER THIS CAN BE DONE THROUGH
DISCOVERY. WE DON'T HAVE ANY OTHER ORDER BEFORE THE COURT. CHIEF JUSTICE
RABNER: IF I'VE UNDERSTOOD YOU CORRECTLY THOUGH THE COURT SHOULD SAY DISCOVERY
IS NOT APPROPRIATE SEND IT BACK AND WE'RE NOT CONCEDING THAT THERE'S ANOTHER WAY
THAT'S APPROPRIATE, WE'LL ARGUE THAT AT A LATER TIME. BRIAN P. KEENAN:
I MEAN THAT'S WHAT WE HAVE TO DEAL WITH HER. I DON'T HAVE ANY OTHER ABOUT US
THE STATE CHOSE TO CHOOSE THIS PATH. IF THEY HAD CHOSEN ORIGINALLY TO GO FOR A
SUBPOENA THE ARGUMENTS MIGHT BE DIFFERENT. I CAN'T SAY. CHIEF JUSTICE
RABNER: FIVE AND SIXTH AMENDMENTS ARGUMENTS ROSTELLA PRESSING THOSE. BRIAN P.
KEENAN: ROUTE SIMPLY. DISCOVERY ORDER IS DIRECTED AT THE DEFENDANT AND HAVING THE
DEFENDANT TURN OVER DISCOVERY WOULD BE A VIOLATION OF THIS FIFTH AMENDMENT RIGHT.
JUSTICE PATTERSON: SO IF A SUBPOENA WERE SERVED WOULDN'T BE ARGUING THAT
THE SIXTH AMENDMENT IS VIOLATED BECAUSE THE SUBPOENA IS BEING SERVED ON COUNSEL
AND THAT PUTS COUNSEL AT ODDS WITH THE CLIENT AND THAT THE FIFTH AMENDMENT
MAY BE IMPLICATED AS WELL BECAUSE OF SELF INCRIMINATION CONCERNS, WOULDN'T THOSE
ARGUMENTS SIMPLY BE REHASHED IN A DIFFERENT PROCEDURALLY SETTING. BRIAN P.
KEENAN: THEY WOULD BE. AND THEIR PROTECTION THAT IS YOUR HONORS HAVE SUGGESTED
THAT NEED TO BE IMPLEMENTED TO OBVIATE THOSE CONCERNS AS TO THE SOURCE OF WHERE
THE DOCUMENT COMES FROM. JUSTICE PATTERSON: I'M SORRY CAN YOU EXPLAIN
WHAT YOU MEAN BY THAT. BRIAN P. KEENAN: THE PROSECUTION WOULDN'T BE ABLE TO
GET UP AND SAY WE GOT THIS FROM THE DEFENDANT. JUSTICE NORIEGA: BUT
THAT CAN ALWAYS BE LITED. THE COURT FACTUAL BASIS INSTRUCTED TO LIMIT THE POTENTIAL
EVIDENCE OF THAT PIECE OF INFORMATION. WOULDN'T THAT SALVAGE INFORMATION
REGARDING EFFECTIVENESS ASSISTANCE OF COUNSEL. BRIAN P. KEENAN: IT COULD WHEN
IT THOSE RIGHTS WHEN IT COMES TO WHAT'S PRESENTED AT TRIAL. THE ADDITIONAL
CONCERN HERE WHAT WE'RE DEALING WITH HERE THE DISCOVERY ISSUE AND WHETHER THIS CAN
BE TO THE EVEN IN DISCOVERY, THE ARGUMENT I'M PRESENTING IT CANNOT BE, GETTING
DISCOVERY IS A DIRECT VIOLATION OF THE DEFENDANT'S FIVE AM RIGHTS. JUSTICE
WAINER APTER: IN TERMS OF THE FIFTH AMENDMENT THE RIGHT OF SELF INCRIMINATION
APPLIES ONLY TO THE DEFENDANT AND NOT DEFENSE COUNSEL. BRIAN P. KEENAN:
YES. JUSTICE WAINER APTER: YOU AGREE IT CANNOT BE ASSERTED BY ANY THIRD PARTIES.
BRIAN P. KEENAN: IF THIS CAME FROM THE DEFENDANT AND THE DEFENSE COUNSEL
CAN ASSERT THE PRIVILEGE ON HIS BEHALF. BUT YOU KNOW, THAT THAT'S GENERALLY
IN THE CONTEXT OF SUBPOENA, THE CASE LAW WHERE THAT'S BEEN DEALT WITH FISHIER
AND LIKE CASES HAS BEEN A PROTECTIVE ORDER TO SHE WILL THE SOURCE OF THE
INFORMATION. JUSTICE WAINER APTER: SO COULDN'T THERE JUST BE A PROTECTIVE
ORDER IN THIS CASE THAT AFFIDAVIT NEED ONLY BE OBTAINED FROM DEFENSE COUNSEL.
BRIAN P. KEENAN: IF IT'S DONE THROUGH DISCOVERY, THE DISCOVERY ACTION
IS LIEU THE DEFENSE AND THAT'S WHY IN NEVER WHEN THEY IMPLEMENTED A DISCOVERY
RULE SIMILAR TO OTHERS IT GOT STRUCK DOWN AND SAYING THAT IT NEEDED TO CONTAIN
A PROVISION SAYING ONLY MATERIALS THAT ARE INTENDED TO USE AT TRIAL CAN BE GOTTEN
THROUGH DISCOVERY. AND THE REASONING BEING IS THAT FROM THE FART REASONING
IS THAT MOTHER. JUSTICE WAINER APTER: WHERE IN THE RULE I SEE WHERE IT
SAYS DEFENSE COUNSEL SHALL PROVIDE A COPY OF THE DISCOVERY TENDERNESS TO PROSECUTION
WHERE IN THE RULE DOES IT SAY HAS NOTHING TO DO WITH THE DEFENSE COUNSEL AND IT'S
ONLY ABOUT THE DEFENDANT PERSONALLY. BRIAN P. KEENAN: THERE'S A RULE SWITCHES
BACK BETWEEN THE LANGUAGE OF DEFENSE COUNSEL AND DEFENDANT. BUT THE OVERALL
TITLE IS THE DEFENDANT'S OBLIGATIONS, THE -- JUSTICE WAINER APTER: WHAT
IF THE ORDER WERE TWEAKED TO MAKE SURE THAT IT WAS ONLY MILKABLE TO DEFENSE
COUNSEL, DEFENSE COUNSEL MUST TURN OVER THIS ALLEGED RYOKAN TASE AFFIDAVIT.
BRIAN P. KEENAN: IT'S STILL THE DEFENDANT'S DISCOVERY OBLIGATION WHICH
THIS IS BASED ON AND THE DEFENDANT'S NAME IS THE ONE WHO IS ON THE CAPTION.
THIS IS -- IT'S NOT AN ATTORNEY'S OBLIGATION. THE WORDING OF THE ORDER I
DON'T THINK IT RELEVANT. JUSTICE WAINER APTER: SO YOU'RE SAYING THAT YOU
AGREE WITH THE FIFTH AMENDMENT RIGHT AGAINST SELF INCRIMINATION APPLIES ONLY TOLL
DEFENDANT BUT BECAUSE IT'S THE DEFENDANT'S CASE IT WILL PASSES APPLY TO ANYTHING
IN THE CASE. BRIAN P. KEENAN: AS TO DISCOVERY. IT'S THE DEFENSE DISCOVERY
OBLIGATION. THERE ARE REASONS WHY THIS SHOULDN'T BE DONE THROUGH DISCOVERY.
BECAUSE THIS FUBBED MENTALLY CHANGE WHAT WE HAVE IN DISCOVERY IN THE STATE. FOR
A PRACTITIONERS WHO DEFENSE COUNSEL WHO HAVE HAD THE THIS VERY STRAIGHT FORWARD
OF MEANS OF KNOWING WHAT THEY NEED TO TURN OVER TO THE STATE IF THEY DON'T
INTEND TO USE IT AT THE TRIAL IT DOESN'T IMMEDIATE TO BE TURNED OVER. THERE
IS STILL TURN OVER. IT'S AN AFFIRMATIVELY OBLIGATION. JUSTICE WAINER APTER:
BUT THERE'S NOTHING IN THE RULE YOU AGREE IF THEY INTEND TO USE IT AT TRIAL
RIGHT. THE ARGUMENT EXPENSE ON MEDICALS MINIMUM GO. A WORK PRODUCT ANYTHING AN
AGENT PREPARES DEFENSE ATTORNEY PREPARES EXPERT DOWNTOWN. BRIAN P. KEENAN:
WILLIAMS WAS NOT LIMITED IN ANY WAY TO WHAT WAS BEFORE THE COURT. THEY ANALYZED
THE NATURE OF THE RULE THEY SAID THE RULE IS SOLID BECAUSE IT NEEDS TO BE READ IN
HOW IN THE -- IN THE CONTEXT OF THE PURPOSE OF DISCOVERY, THAT IT PROVIDES THE
STATE THE OPPORTUNITY TO SEE WHAT THE DEFENSE IS GOING PRESENT AT TRIAL. IT
HAD TO BE READ IN THAT CONTEXT. AND IN THE SIXTH AMENDMENT QUESTION NEEDED
TO BE RESOLVED BECAUSE THE STATE HAD -- OR THE COURT HAD TO DETERMINE THE NATURE
OF THE ERROR THERE AND SO IF LOOK AT PAGE 478 OF THE OPINION THROUGH 479. THEY
TALK ABOUT THE PURPOSE OF THE DISCOVERY, THEY GO OVER THE RULE AND THEN THEY
SAY THE STATE READS THE SECTION FOUR TOO LITERALLY. AND. JUSTICE PATTERSON:
THE LANGUAGE WHICH YOU CITE IN YOUR BRIEF THE CRIMINAL JUSTICE LANGUAGE RELATES
TO THE NEXUS BETWEEN THE NOTES AND THE DEFENSE INVESTIGATION BUT FOR THE
DEFENSE INVESTIGATION IN THAT CASE THESE NOTES WOULD NEVER HAVE EXISTED. SO THE
WORK PRODUCT, THE RESPECT FOR WORK PRODUCT AND THE CONCERN ABOUT WORK PRODUCT
AND AS YOU POINT OUT ALSO SOME PRIVILEGE ELEMENTS TO IT IS WOVEN INTO THAT
DECISION. THAT'S WHAT IT'S ABOUT. SO TAKE WORK PRODUCT OUT OF WILLIAMS AND TAKE
THE ATTORNEY CLIENT PRIVILEGE OUT OF WILLIAMS AND WHAT DO YOU HAVE? YOU HAVE
A SUGGESTION THAT THE RULE NEEDED TO BE APPLIED NOT PRECISELY IN ACCORDANCE
WITH THIS LANGUAGE BECAUSE OF A WORK PRODUCT CONSIDERATIONS BUT WHY IS THAT EVEN
RELEVANT TO YOUR CASE? BRIAN P. KEENAN: BECAUSE THE RULE NEEDS TO BE
APPLIED AS TO ITS PURPOSE. IT'S NOT ABOUT, YOU KNOW, AND THERE'S. JUSTICE
ALBIN: LANGUAGE THROUGHOUT OUR CASES SAYING THAT THE STATE IS NOT TO BUILD ITS CASE
THROUGH DEFENSE FILE. JUSTICE PATTERSON: SO IF THAT IS SO, THEN ALL SOMEONE
NEEDS TO DO, A THIRD PARTY OUT THERE NEEDS TO DO IN ORDER TO SHE WOULD SOMETHING
THAT'S NOT ONLY POTENTIALLY INCULPATORY BUT AT THE HEART OF THAT ONE CHARGE FOR
THE WITNESS TAMPERING CONSPIRACY IS TO HAND IT TO DEFENSE COUNSEL AND THEN IT CAN
NEVER BE GOTTEN. BRIAN P. KEENAN: ABSOLUTELY NOT, SUBPOENA.
JUSTICE PATTERSON: SUBPOENA BUT THEN TIMOUS IN CIRCLES BECAUSE WHEN WE TALK ABOUT
THE SUBPOENA THE SAME DEFENSES ARE GOING ESSENTIALLY THE SAME DEFENSES MAYBE
THE FIFTH AMENDMENT SITUATION IS DIFFERENT BUT ARE GOING TO BE ASSERTED. YOU WOULD
BE BACK VERY ARTICULATELY DEFENDING THE DECISION TO MOVE TO SWASH THE SAMPLE.
BRIAN P. KEENAN: THAT THERE ARE GOING TO BE ASSERTED BUT AS THE CASE LAW
INDICATES THE STATE HAS BEEN VERY SUCCESSFUL IN GETTING THESE ITEMS IN THE
PAST AND THAT'S WHAT THE CASE LAW SAYS, THIS IS THE PROPER WAY FOR THE STATE TO GO
ABOUT GETTING THOUGH THINGS, DISCOVERY NOT THE PROPER WAY ABOUT GOING ABOUT THIS.
JUSTICE SOLOMON: EVERY DISCOVERY REQUEST IS SERVED UPON DEFENSE COUNSEL
AND THE NAME OF THE DEFENDANT, CORRECT DOESN'T MATTER WHAT IT IS THEY'RE
SEEKING. SO BY YOUR THEORY EVERY DISCOVERY REQUEST IS SUBJECT TO THE SAME
LIMITATION. BRIAN P. KEENAN: YES. SO EVERY DISCOVERY REQUEST FOR ITEMS
THAT ARE GOING TO BE USED AT TRIAL MERELY ACCELERATE THE DEFENSE DISCLOSE OF THOSE
ITEMS. THE INTENT TO USE AT TRIAL IS WHAT MAKES THE SITUATION OKAY. JUSTICE
SOLOMON: NO, IT'S NOT BECAUSE THE DISCOVERY REQUEST CAN RELATE TO ANY ITEM OF
EVIDENCE THAT MAY BE PHYSICAL EVIDENCE OF THE CRIME AND DEFENSE COUNSEL IN POSSESSION
OF IT VERY WELL MAY 23409 BE INTENDING TO USE IT AT TRIAL BECAUSE IT'S
INCULPATORY. SO YOUR SUGGESTION IS THAT EVERY DISCOVERY REQUEST BECAUSE IT IS
DIRECTED TO THE DEFENDANT SERVED UPON DEFENSE COUNSEL IS NOW NO DISCOVERABLE.
THE GUN IS NOT STORABLE. BRIAN P. KEENAN: YES, ABSOLUTELY ANY ITEM THAT'S
INCULPATORY THAT THEY DO NOT INTEND TO USE AT TRIAL IS NOT DISCOVERABLE. IS THE
ACT LIELY MY ARGUMENT AUTHOR NOR CAN I ASK YOU COUNSEL IN RULE 3133 IN TERMS
OF DISCOVERY BY THE STATE IT SAYS WRITTEN STAPLES IF ANY INCLUDING ANY MEMORANDA
OPERATING OR SUMMARIZING THE REPORTED STATEMENTS BY ANY WITNESSES STATE MAY
CALL AT TRIAL. HOW DOES THIS NOT FIT WITHIN THAT. BRIAN P. KEENAN: THAT'S
EXACTLY WILLIAMS. THAT'S EXACTLY THE SITUATION IN WILLIAMS. JUSTICE
NORIEGA: THAT WAS DIFFERENT, THAT WAS THE ATTORNEY INVESTIGATING AND SHOWING
PHOTOGRAPHS TO THE WITNESS AND WRITING NOTES AND THAT WAS BEING PREPARED BY THE LAWYER.
THIS IS SOMETHING THAT IS ENTIRELY PREPARED BY THE WITNESS THAT THE STATE
IS INTENDING TO CALL THAT IS NOW A HANGISH PHYSICAL OBJECT THAT THE ATTORNEY HAD
NOTHING TO DO WITH THE CONCENTRATION OF THAT WINDS UP IN THE ATTORNEY'S POSSESSION
AND THE STATE HAS BECOME AWARE OF IT. HOW DOES THAT NOT FIT WITH SUBJECT SECTION
D. JUSTICE FASCIALE: APPEAR THE PURPOSE OF THE RULE. BRIAN P. KEENAN:
IT DOESN'T BECAUSE IT'S NOT GOING TO BE USED AT TRIAL. JUSTICE NORIEGA:
NOT TO JUMP THERE YET WHAT ABOUT THE ACTUAL LANGUAGE OF THIS. DOES IT FIT WITHIN
THAT DEFINITION FIRST. BRIAN P. KEENAN: IT DOES. JUSTICE NORIEGA:
NOW EXPLAIN WHY IT DOESN'T FIT WITH THE PURPOSE. BRIAN P. KEENAN: IT DOES
FIT WITHIN A RULE BUT WILLIAMS SAID THAT RULE CANNOT BE READ OUTSIDE THE PURPOSE
OF THE RULE. THE PURPOSE OF STORY IS THE ALLOW THE PARTIES TO PRIDE DISCOVERY.
JUSTICE FASCIALE: ACTUALLY THE PURPOSE OF RULE THREE: THIRTEEN-THREE IS TO
AVOID HAVING THE STATE CONFRONTED AT TRIAL FOR THE FIRST TIME WITH A REASON
STATEMENT OR STATEMENTS OR SUMMARIES OF ORAL STATEMENTS OF ITS OWN WITNESSES
USED TO ATTACK THE VERACITY OF THE WITNESSES COURTROOM TESTIMONY. THAT'S EXACTLY
WHY THEY WANT THIS AFFIDAVIT. BRIAN P. KEENAN: THEY WILL NEVER BE
CONFRONTED WITH IT. THE DEFENSE WILL NOT USE IT. THEY DON'T WANT TO USE IT. DEFENSE
WITNESS -- THE STATE'S WITNESS IS NEVER GOING TO BE CONFRONTED WITH THIS.
JUSTICE FASCIALE: WHAT ABOUT THE STATE, THE STATE WANTS TO PERHAPS CALL THE WITNESS
AND DOES NOT WANT TO BE SURPRISED WITH SOMETHING THAT THROUGH NO DEFENSE
INVESTIGATION, NOT THROUGH ANY WORK PRODUCT. NO ATTORNEY CLIENT PRIVILEGES
HAPPENING TO BE IN POSSESSION OF DEFENSE COUNSEL. BRIAN P. KEENAN: THEY
WOULDN'T BE CONFRONTED WITH IT. JUSTICE NORIEGA: COUNSEL YOU CAN AN IMAGE
A SITUATION AT TRIAL A WITNESS SAYS SOMETHING COMPLETELY UNSUSPECTED AND THE
ONLY POSSIBLE EVIDENCE THAT COULD CONFRONT THAT WOULD BE THIS AFFIDAVIT.
BRIAN P. KEENAN: AT THAT POINT THE COURT RULES PROVIDE THE REMEDY HERE. IF THE
DEFENSE COUNSEL THEN COMES IN AND SAYS OH I INTO HE HAD TO USE THAT THE COURT
CAN THEN PAUSE THE PROCEEDINGS, WE'LL HAVE THE STATE'S PREPARE ANTERIOR THEY CAN
FLAT OUT DENY IT. THAT'S STATE VERSUS BRADSHAW. JUSTICE WAINER APTER:
IF WILLIAMS AND THE OTHER CASE WERE SO RULES ALLEY UNDERSTOOD NOTHING HAS TO BE
TURNED OVER BY THE DEFENDANT IN DISCOVERY IF THE DEFENDANTS DOES NOT INTEND TO
USE IT AT TRIAL EVEN PHYSICAL EVIDENCE OF A TRIAL EVEN THINGS THAT DON'T HAVE ANYTHING
TO DO WITH WORK PRODUCT OR ATTORNEY CLIENT PRIVILEGES WHY WOULD THE RULE NEVER
HAVE BEEN AMENDED TO SAY THAT. IT'S VERY COMMON FOR AMENDED AFTER THE -RT
WHEN THERE'S NO UNDERSTANDING OF THE MEETING OF THAT DECISION. THESE DECISIONS
FROM 19 STATE, 1979 YOU'RE SAYING THEY'VE BEEN UNIVERSAL ALLEY UNDERSTOOD TO
MEAN NO SUCH THING A DISCOVERY UNTIL THE DEFENDANT INTENDS TO RULE INTRODUCE AT
IT WILL TRIAL. WHY DOES THE RULE NOT SAY THAT ALMOST 45 '80S. BRIAN P.
KEENAN: I THINK THE WILLIAMS REPORT READ THAT, IF YOU LOOK AT THE BEGAN IT GOES
TO STATE DEFENDANT HOWEVER IS NOT REQUIRED TO PRODUCE BY WAY OF DISCOVERY MATERIALS
HE DOES NOT INTEND TO USE AT TRIAL. COMPLETELY UNQUALIFIED. MATERIALS
PERIOD, THAT'S THE BEGAN BOOK THAT'S USED PRACTITIONER. JUSTICE WAINER APTER:
ARE YOU SUGGESTING THIS IS THE ONLY TIME THAT THE STATE HAS EVER ATTACHED TO DO
DISCOVERY AT THAT TIME STATE DID NOT INTEND TO INTRODUCE AT AT THIS IS THE FIRST
TIME IT HAPPENED. BRIAN P. KEENAN: ABSOLUTELY NOT. THEY'VE TRIED
AND UNIVERSAL REJECTED IN DOING SO WITH THE EXCEPTION OF OR TEG A. JUSTICE
PATTERSON: WHERE THE EXCEPTION OF WHAT. BRIAN P. KEENAN: STATE VERSUS
ORATING A. THAT WAS A PUBLIC IDENTIFICATION PROCEDURE WHERE THE PROSECUTOR
WAS PRESENT, DEFENSE COUNSEL HAPPENED TO BE RECORDING IT BUT RECORDING WHAT THE
PROSECUTOR COULD ALSO TESTIFY AS TO WHAT HAPPENED THERE. SO. JUSTICE FABIANA
PIERRE-LOUIS: IN ALL THE OTHER CASE WAS THE ITEM THAT THE STATE WAS SEEKING
IN INSTRUMENTALITY OF THE CRIME FOR WHICH DEFENDANT AND OTHERS WERE BEING
PROSECUTOR. THAT'S WHAT WE HAVE HERE. WILLIAMS AND THE OTHER CASE ARE COMPLETELY
DIFFERENT THAN THE SITUATION WE HAVE HERE. THIS IS AN INSTRUMENTALITY OF THE
CRIMINAL ACT. BRIAN P. KEENAN: THAT'S WHY IT IS SO IN OPPOSITE OF WHAT
THE COURT -- THE DISCOVERY RULES CALL FOR. THIS IS SO OUTSIDE OF WHAT'S
CONTEMPLATED BY DISCOVERY. THIS IS THE STATE TRYING TO BUILD ITS CASE THROUGH THE
DEFENSE FILE. JUSTICE FABIANA PIERRE-LOUIS: YOU SAY LIEU THE DEFENSE
FILE BUT AGAIN, IT'S NOT SIMILAR TO ALL THE OTHER CASES WE'VE BEEN DISCUSSING
BECAUSE THIS IS NOT SOMETHING USING THE TERMINOLOGY FROM WILLIAMS THAT WAS YOU BEEN
COVERED BY THE DEFENSE, UNCOVERED BY THE DEFENSES INVESTIGATION, CREATED BY
THE DEFENSE, CREATED AT THE DIRECTION OF DEFENSE, THIS IS NOT AN EXPERT REPORT,
THIS IS NOT SOMETHING THAT WAS CREATED OR INITIATED THROUGH A DEFENSE INVESTIGATOR
OR ANYTHING LIKE THAT. BRIAN P. KEENAN: THAT'S CORRECT. JUSTICE FABIANA
PIERRE-LOUIS: NOTHING LIKE WHAT MINIMUM GO AND WILLIAMS WAS SEEKING TO PRIEST,
SEEKING TO PREVENT THE STATE AS YOU SAID FROM YOU KNOW, USING BASICALLY FORCING THE
STATE -- THE DEFENSE TO HELP THE STATE WITH THEIR INVESTIGATION AND PROSECUTION
OF THE CRIME. THAT'S REALLY WHAT THOSE CASES WERE TRYING TO PREVENT. DEFENSE
COUNSEL CONDUCTS THEIR INVESTIGATION, YOU KNOW, IT OBTAINS REPORTS, GETS THEIR
INVESTIGATION TORE TO INTERVIEW FOLKS AND NOW THE STATE CAN TAKE ALL THAT
INFORMATION AND USE THAT IN THE PROSECUTION OF THE DEFENSE COUNSEL'S CLIMB THAT'S
WHAT THOSE WERE TRYING TO RECENT. THIS IS DIFFERENT HERE. I STILL DON'T SEE A CLEAR
DISTINCTION BETWEEN SOMEONE HANDING A DEFENSE COUNSEL A GUN WHICHS ALSO
ATRAMENTAL OF A CRIME AND THIS AFFIDAVIT WHICH IS THE INSTRUMENTALITY OF THE
WITNESS TAMPERING CHARGE AGAINST DEFENDANT AND OTHERS. BRIAN P. KEENAN:
I FREE IT'S DEFINITELY BUT THIS IS IT WILL PASS ITCH ASPECT WHICH I DIDN'T FULLY
APPRECIATE TAKE APPELLATE ATTORNEY UNTIL I SPOKE WITH TRIAL ATTORNEYS AND LEARNED
HOW COMMON ALSO FOR THEM TO RECEIVE UNANIMOUS INFORMATION FROM OUTSIDE
AFFIDAVITS AND TO BE ABLE TO RECEIVE THOSE THINGS IN IAN EVALUATE THEM IS ALSO
AN IMPORTANT PART OF REPRESENTATION AND TO BE CHILLED BY THE NOTION THAT YOU'RE
TAKING THIS THING IN IS THEN GOING TO BE USED AGAINST THE CLIENT WOULD BE VERY
TAJING. JUSTICE PATTERSON: AND I UNDERSTAND IT'S A PECULIAR POSTURE HERE
BECAUSE YOU MAY NOT KNOW I'M NOT ASKING YOU MAY NOT KNOW IF THIS EXISTS WE'RE
ASSUMING THAT NOBODY IS SAYING THAT IT EXISTS. BUT IS THERE, TO YOUR
KNOWLEDGE, ANY CLAIM WHATSOEVER THAT THE ATTORNEY, IF IT EXISTS, IF IT'S IN THE HANDS
OF YOUR CLIENT'S ATTORNEY, IS THERE ANY CAME WHATSOEVER THAT THE ATTORNEY DID
ANYTHING TO GET IT. BRIAN P. KEENAN: NOT TO MY KNOWLEDGE. I HAVE
NO KNOWLEDGE OF THAT. JUSTICE PATTERSON: SO WHAT YOU'RE SAYING I GUESS
IS THAT IF AND I'M SAYING THIS HYPOTHETICALLY BECAUSE WE DON'T KNOW THE
ACTUAL FACTS BUT IF IN FACT WHAT HAPPENED HERE IS AN ENVELOPE GOT LEFT AT THE
ATTORNEY'S OFFICE OR MAILED OR JUST APPEARED WITH NO EFFORT, NO INVESTIGATION
BY THE ATTORNEY BECAUSE IT WASN'T TO AN ATTORNEY'S OFFICE IT GETS THE SAME
PROTECTION AS THE NOTES IN WILLIAMS. BRIAN P. KEENAN: WELL, THE ATTORNEY NEEDS
TO BE ABLE TO OPEN THAT. THE ATTORNEY CAN'T FEAR WHEN HERO OPENING UP A PACK
PAGE FROM AN UNKNOWN SOURCE. JUSTICE PATTERSON: I GET THAT ARGUMENT.
ARE YOU SAYING THAT BECAUSE IT WENT TO AN ATTORNEY'S OFFICE IT ASSUMES THE SAME
STATUS AS AN ATTORNEY'S MEMO. BRIAN P. KEENAN: IT'S NOT WORK PRODUCT.
I MEAN IT MIGHT HAVE SOME ELEMENTS IN THE WORK PRODUCT THIS SITUATION BY THE
ATTORNEY NOT TO USE IT IS A STRATEGIC DECISION THAT THEY'RE MAKING BUT IT
DOESN'T HAVE THE SAME QUALITIES OF OTHER WORK PRODUCT. BUT AGAIN, IT'S PART OF THE
ATTORNEY'S DUTY TO DO THAT, ACCEPT THAT INFORMATION AND TO INVESTIGATE IT.
JUSTICE WAINER APTER: COUNSEL IN RESPONSE TO THE CHIEF'S EARLIER QUESTION YOU HAD
SAID THAT UNDER THE RULE DEFENSE COUNSEL WOULD HAVE AN OBLIGATION, AN ETHICAL
OBLIGATION TO TURN OVER OR REFUSE TO TAKE EVIDENCE OF A CRIME, THE CHIEF HAD
USED THE EXAMPLE OF A GUN AND A HOMICIDE CASE BUT THEN YOU AGREED THAT IF THERE
WAS A FACIALLY INCULPATORY AFFIDAVIT I THINK THAT THAT ALSO THAT COUNSEL WOULD
HAVE AN OBLIGATION TO TAKE THAT OVER. HAND THAT OVER SO I'M NOT EXACTLY SURE
WHY WOULD IT BE CHILLED BY A DISCOVERY ORDER BUT NOT BY COUNSEL HANDING IT
OVER UNDER THE RULE. BRIAN P. KEENAN: I'M SORRY, I THINK THAT I DIDN'T
SAY THAT YOU KNOW IF SOMETHING CAME IN THAT WAS FACIALLY EXCULPATORY LIKE AN
AFFIDAVIT. JUSTICE WAINER APTER: INCULPATORY. EVIDENCE OF A CRIME.
BRIAN P. KEENAN: SOMETHING THAT'S FACIALLY INCULPATORY AND EVIDENCE OF A CRIME
ARE I THINK ARE TWO DIFFERENT CRIMES. JUSTICE WAINER APTER: SO EVIDENCE
OF A CRIME. BRIAN P. KEENAN: EVIDENCE OF A CRIME THEY WOULD HAVE
A DUTY UNDER THE RULES TO TURN THOSE THINGS OVER. JUSTICE WAINER APTER:
SO MY QUESTION IS JUST NOW YOU WERE TALKING ABOUT HOW THAT CONFLICTS WITH THE
PASSIVE ASPECT OF REPRESENTATION WHERE THEY HAVE TO BE ABLE TO ACCEPT EVERYTHING.
I UNDERSTAND THAT. THEY ACCEPT IT. THEY REVIEW IT. IF IT'S EVIDENCE AVENUE
CRIME THEY THEN HAVE TO TURN IT OVER WHY IS THAT ANY DIFFERENT IF IT IS HAPPENING
THROUGH A DISCOVERY ORDER WHICH IS IF IT'S EVIDENCE OF A CRIME YOU HAVE TO
TURN IT OVER PENNSYLVANIA. BRIAN P. KEENAN: AGAIN, THE DISCOVERY IS
RECOLLECTED AT THE DEFENDANT NOT THE DEFENSE COUNSEL. JUSTICE WAINER APTER:
EXCEPT UNDER B IT SAYS ANY RELEVANT PAPERS WHICH ARE WITHIN THE CUSTODY CONTROL
OR DEFENSE COUNSEL AND THIS COULD BE A PAPER WHICH IS WITHIN THE POSSESSION CONTROL
OR CUSTODY OF DEFENSE COUNSEL. IT'S NOT ONLY DEFECTED TO DEFENDANT IT SAYS DEFENSE
COUNSEL A LOT. BRIAN P. KEENAN: I DON'T THINK THAT IS RULES WORDING
CONTEMPLATE THIS SORT OF SITUATION. THEY ALSO TALK ABOUT TRANSCRIPTS IN
POSSESSION OF THE DEFENDANT. TRANSCRIPTS AREN'T GOING BE IN THE POSSESSION OF A
DEFENDANT. SO I DON'T THINK THAT THE WORDING OF THE COURT RULE THERE IS DISPOSITIVE
AS TO WHETHER A DISCOVERY ACTION IS DEFENDANT HAD AT DEBTOR DEFENSE COUNSEL.
I THINK THE SUPREME COURT'S DECISION STRIKING THEIR NEW DISCOVERY RULE BASED
ON FIFTH AMENDMENT GROUNDS IS STRONGLY INDICATIVE OF THE NOTION THAT DISCOVERY
IS DIRECTED AT DEFENDANT. I THINK THAT'S WHY 38 STATES HAVE THIS RULE SAYING THAT
IF DEFENSE COUNSEL DOESN'T INTEND TO USE THAT AT TILE IT DOESN'T NEED TO BE
TURNED OVER. JUSTICE NORIEGA: COUNSEL YOUR POINT THAT THE GUN IN THE
HYPOTHETICAL THAT THE CHIEF PROVIDED THAT WE WERE JUST DISCUSSING IF IT HAS TO BE
TURNED OVER WHEN DOES THAT DUTY ARISE IS IT AT THE MOMENT THAT THE ATTORNEY REALIZE
THAT IS HE'S GOT A POSSIBLE IMPLEMENT OF THE CRIME. BRIAN P. KEENAN: I
THINK -- YOU KNOW, I HAVEN'T DEVELOPED INTO LIKE I'M NOT REPRESENTING DEFENSE
COUNSEL HERE. AND HIS ETHICAL OBJECTSES AS TO WHAT HE NEEDS TO DO WITH THAT,
THAT'S FOR HIM TO DECIDE. JUSTICE NORIEGA: BUT IF THAT DUTY EXISTS AND
IF IT ARISES SOMEWHAT CONTEMPORANEOUS WITH THE RECEIPT OF THE PIECE OF EVIDENCE
ISN'T -- DOESN'T THE DISCOVERY ORDER -- DOESN'T THAT RENDER THE DISCOVERY ORDER
ALMOST MEANINGLESS IT'S A SEPARATE ISSUE. BRIAN P. KEENAN: I THINK IN THIS CASE
WHERE IT MIGHT HAVE -- I DON'T KNOW WHEN IT WAS RECEIVED OR WHETHER IT WAS RECEIVED
AT ALL BUT YOU KNOW THERE ARE SOME MONTHS BETWEEN HAD THE WITNESS SPOKE TO THE
POLICE ABOUT IT AND UNTIL THE INDICTMENT CAME OUT I THINK THE INDICTMENT CAME
OUT, THE DISCUSSION HAPPENED WITH THE POLICE IN DECEMBER AND THE INDICTMENT CAME
OUT IN MID MARCH. SO THERE ARE THREE MONTHS WHERE THIS THING COULD HAVE BEEN
DELIVERED AND THE DEFENSE COULD ATTORNEY COULD HAVE BEEN FILLING OUT WHAT'S
GOING ON WITH IT. AND THEN THE INDICTMENT COMES OUT, THAT WOULD CERTAINLY LEND
READ HE KNOWS TO THE NOTION THAT IT'S INSTRUMENTALITY -- FRUIT OF A CRIME. BUT
AGAIN, YOU KNOW, THE DEFENSE COUNSEL IS IN THE POSITION OF THE DEFENSE COUNSEL
TOO I GO TO YOU KNOW READING THE CLIENT INNOCENT IN THIS AND THESE ARE FAB
STATIONS SO THERE MAY BE SOME TIME FOR THE DEFENSE COUNSEL TO FIGURE OUT -- I DON'T
KNOW WHAT THEY'RE THING BUT THAT WOULD BE IN MY POSITION I WOULD TRY TO FIGURE THAT
OUT. CHIEF JUSTICE RABNER: COUNSEL WE'VE TALKED ABOUT THREE DIFFERENT
COURSES HERE AND YOU'VE SUGGESTING THAT THE DISCOVERY ORDER SHOULD NOT CANNOT
APPLY. LEAVING SUBPOENA YOU DISCUSSED WITH JUSTICE PATTERSON AND A POTENTIAL
SEARCH WARRANT, IS THE SEARCH WARRANT REALLY A WISE COURSE FOR THIS COURT TO PROCEED.
I WOULD BE SURPRISED TO HEAR THE PUBLIC DEFENDER. BRIAN P. KEENAN:
NO, I DIDN'T SUGGEST THAT THE DEFENSE COUNSEL WOULD BE SERVED. I SAID THE DEFENDANT
IF IT WAS IN THE POSSESSION OF THE DEFENDANT IT WOULD BE PROPER FOR A SEARCH WARRANT
FOR. CHIEF JUSTICE RABNER: SO UNDER A CIRCUMSTANCE SUCH AS THIS THAT LEAVES
ONLY A SUBPOENA. BRIAN P. KEENAN: THAT'S CORRECT. JUSTICE SOLOMON:
I THOUGHT YOU WERE IMAPPLYING AT LEAST AT THE BEGINNING THAT BECAUSE THE PAPER
MIGHT HAVE BEEN RECEIVED BY COUNSEL BEFORE THE SUPERSEDING INDICTMENT YOU WOULD
NOT KNOW THAT IT WAS RELEVANT TO THAT CRIME AND WOULD HAVE THOUGHT INSTEAD IT WAS
EXCULPATORY. AND THAT'S WHY IT WOULD NOT BE DISCOVERABLE. BRIAN P. KEENAN:
THAT'S WHY THEY WOULD TAKE IT IN. YOU KNOW, THAT'S WHY THEY WOULD HAVE --
JUSTICE SOLOMON: IF IT WAS EXEQUIAL TOWER CLEARLY IT WOULD DISCOVERABLE. THEY WOULD
USE IT AT TRIAL TOLL HE DIDN'T COMMIT DID ALREADY. BRIAN P. KEENAN: IF
IT WAS EX ACTUAL TOWER AND THIS WAS A GOOD AFFIDAVIT THAT REPRESENTED THE WITNESSES
THE POLICE WOULD PROBABLY WANT TO INTERVIEW THE WITNESS WHO MADE IT.
JUSTICE SOLOMON: BUT AT THAT POINT IT WOULD HAVE BEEN DISCOVERABLE BECAUSE IT'S
EXCULPATORY, THE DEFENSE COUNSEL AT THAT POINT IN TIME IN HIS HEAD WOULD WANT
TO USE IT AT TRIAL. AND HIS CONCERN IS IF WE CHILL THAT. HE'S NOT GOING TO
TAKE IN POTENTIAL MRI EXCULPATORY EVIDENCE BECAUSE HE'LL BE CONCERNED ABOUT
ITS DISCLOSURE. BRIAN P. KEENAN: YEAH, ESSENTIALLY THEY DON'T KNOW WHAT
IT IS UNTIL THEY READ IT AND THEY'VE TAKEN IT IN AT THAT POINT. IT COMES IN IN AN
ENVELOPE. THEY OPEN IT UP AND NOW THEY'VE GO. JUSTICE SOLOMON: YOU ADMITTED
TO US YOU DON'T KNOW WHEN A SUPERSEDED INDICTMENT WAS RETURNED IN APRIL THE
CRIME WAS IN DECEMBER, IN APRIL AT THAT POINT ENNUYED AN INSTRUMENT TALL OF THE
CRIME. BRIAN P. KEENAN: BASED ON ZAY'S ALLEGATIONS THERE WAS A PROBABLE
CAUSE FIND BOOGIE THE GRAND JURY AS TO THAT. JUSTICE SOLOMON: SO AT THAT
POINT HE KNEW IT WAS INCULPATORY WITH RESPECT TO THE SUPERSEDING INDICTMENT
POTENTIALLY. AND THAT'S THE DISTINCTION. YOU DON'T WANT TO CHILL HIS ABILITY
TO REVIEW EVIDENCE WHEN HE DOESN'T KNOW IF IT'S AN INSTRUMENTALITY OF A CRIME.
BRIAN P. KEENAN: YES. JUSTICE SOLOMON: AT THAT POINT. BRIAN P. KEENAN:
I'M SORRY. JUSTICE SOLOMON: YOU JUST -- MY UNDERSTANDING I THINK IS THAT
YOU WERE CLAIMING BECAUSE HE DIDN'T KNOW IT WAS AN INSTRUMENTALITY OF THE CRIME
AT THE TIME THAT HE RECEIVED IT WHICH WE DON'T KNOW IF THAT'S TRUE, BY WOULDN'T
KNOW IF IT WAS BEFORE OR AFTER THE SUPERSEDING INDICTMENT AT THAT POINT HE
HAD THE RIGHT TO OPEN IT UP, TAKE A LOOK AT IT AND NOT DISCLOSE IT BECAUSE HE LATER
DISCOVERED IT WASN'T AN INSTRUMENTALITY OF THE CRIME. BRIAN P. KEENAN:
THAT'S CORRECT. CHIEF JUSTICE RABNER: COUNSEL I THINK WE HAVE YOUR POSITION
IS THERE ANYTHING YOU WOULD LIKE TO ADD AT THIS POINT. BRIAN P. KEENAN:
I WOULD JUST ALSO LIKE TO NOTE THERE'S ANOTHER AFFIDAVIT FOR. THERE HAS BEEN
NO ONLY TO CRIMINALITY IF ANY AFFIDAVIT EXISTS FOR DJ MEMBERSHIP TUNE SO I THINK
THAT'S IN PROPER PART OF THE ORDER AND I WOULD JUST LIKE TO NOTE MR. KNIGHT HAS BEEN
INCARCERATED WAITING TRIAL SCANS JUNE 16 OF 2021 AND IS EAGER TO GO TO TRIAL
TO PROVE HIS INNOCENCE. CHIEF JUSTICE RABNER: THAT YOU, COUNSEL.
CLAUDE CAROLINE HEFFRON: THAT YOU YOUR HONORS ANIME IT PLEASE THE COURT. THE RULE
THAT JUSTICE SOLOMON JUST SET FORTH IS MORE OR LESS EXACTLY THE RULE THAT WE ARE
PROPOSING IN THIS CASE WHICH IS THAT IF A DEFENSE ATTORNEY IN THE COURSE OF
PROVIDING EFFECTIVE ASSISTANCE OF COUNSEL COMES POO THE POSSESSION OF DOCUMENTS
THAT LATER TURN OUT TO BE INCULPATORY THEY SHOULD NOT HAVE TO TURN OVER SUCH
DOCUMENTS IN DISCOVERY UNLESS AND UNTIL THEY INTEND TO USE THEM AT TRIAL. AND I'M
FOG TO TRY TO ANSWER SOME OF THE STICK YES QUESTIONS THAT WE RAN INTO IN HOPES
OF ELUCIDATING WHY WE THINK THIS RULE IS THE BEST RULE IN THIS CASE. I WANT
TO UNDER SCORE THAT THESE FACTS ARE RATHER EXTRAORDINARY BECAUSE WHAT MAKES THIS
DIFFERENT FROM THE GUN IS THAT WHAT A CLIENT GOES TO AND WHAT DEFENSE ATTORNEY
A GUN IT IS QUITE APPARENTLY AN INSTRUMENTALITY OF A CRIME CERTAINLY NOT
ALL GUNS HAVE BEEN USED IN CRIMES. BUT I AS SOMEBODY WHO DOESN'T HAVE A BEGUN
PERMIT CAN'T ACCEPT THAT GUN AND AS SOMEBODY WHO DOESN'T HAVE THAT GUN REGISTERED
TO ME CANNOT HAVE THAT GUN IN APPLY POSSESSION. I THINK THE GUN, THE
NARCOTICS, THESE ARE THE EASIER CASES AND WHAT MAKES THIS CASE DIFFICULT IS ALSO
WHAT MAKES IT EXTRAORDINARY BECAUSE AT THE TIME DEFENSE ATTORNEY GOT THIS AND WE
DON'T KNOW WHEN THAT IS WITH YOU I JOIN IN MR. KEENAN'S SUPPOSITION THAT PROBABLY
THE DEFENSE ATTORNEY IN THIS CASE WOULD HAVE RECEIVED THIS NOT YET KNOWING
THE SUPERSEDING INDICTMENT HAD BEEN HANDED DOWN. JUSTICE PATTERSON: WE
HAVE NO INFORMATION ABOUT THAT. WE DON'T EVEN KNOW IF WE'RE SPENDING THIS MORNING
DISCUSSING AN OBJECT THAT ACTUALLY EXISTS SO I DON'T THINK WE CAN COME TO ANY
CONCLUSIONS AND I THINK THE COURT WOULD APPRECIATE KNOWING MORE BUT WE CAN'T PURSUE
THAT. CLAUDE CAROLINE HEFFRON: I UNDERSTAND THAT. WE DON'T KNOW
THAT I AGREE. JUSTICE SOLOMON: DOESN'T YOUR ENTIRE POSITION DEPEND UPON
KNOWING THAT. IF YOU RECEIVED A SUPERSEDING INDICTMENT HE KNOWS IT'S AN
INSTRUMENTALITY OF THE CRIME. CLAUDE CAROLINE HEFFRON: RIGHT. MY POSITION
DOES DEPEND ON THAT. BUT I THINK THAT THE FACTS OF THE CASE MAKE THAT NOT A
FABRICATION OF FACTS BUT A REASONABLE INFERENCE AND I THINK THE CONTRARY IS EQUALLY
UNLIKELY, THIS IS NO REASON TO BELIEVE -- JUSTICE PATTERSON: ARE YOU SAYING
THAT THE REASON A GUN HAS TO BE TURNED OVER OR DRUGS HAVE TO BE TURNED OVER
IS BECAUSE THE ATTORNEY, IF NOT LICENSED TO BE CARRYING A GUN HAS NO LEGAL
RIGHT TO HOLD THOSE IN THE ATTORNEY'S POSSESSION. CHIEF JUSTICE RABNER:
HOW ABOUT A BLOODY KNIFE. CLAUDE CAROLINE HEFFRON: I'M UNDER SCORING
THE FACT HOW OBVIOUS IT IS YOU CAN'T TAKE THAT. WHETHER IT'S A BLOODY KNIFE.
JUSTICE FABIANA PIERRE-LOUIS: HOW ABOUT MONEY POSSIBLY FROM A BANK ROBBERY WHO HAVE.
CLAUDE CAROLINE HEFFRON: I THINK MONEY IS A COMPLICATED CASE AS WELL.
I THINK IT WOULD DEPEND ON THE FACTS. THAT'S WHY WE'RE NATIONAL STICKY HERE
HAVING A RATHER BAR EVEN RECORD PALLET PAT POTENTIALLY UNDER YOUR POSITION ALL
SOMEBODY WOULD NEED TO DO TO KEEP MONEY OUT OF TRENTON POLICE -- OFF THE PROSECUTE'S
EVIDENCE LIST OF EXHIBIT IS TO DEPOSIT THE FRIENDLY A TM LAWYER LOCATION.
CLAUDE CAROLINE HEFFRON: I THINK THAT'S DIFFERENT THAT'S NOT WHAT I'M INTENDING TO
SUGGEST. WHAT I'M SITUATIONING MONEY CAN BE STICKING IN SO FAR AS A CLIENT
ATTACHMENT TO PAY YOU IN CASH. THAT I THINK WOULD PRESENT A DIFFICULT SITUATION.
HOWEVER A CLIENT COMING IN SAYING I JUST ROBBED A BANK CAN YOU HOLD ON TO THE
MONEY THAT TO ME IS A CLEAR HE SITUATION LIKE THE BLOODY KNIFE WHERE YOU CAN'T ACCEPT
THAT FROM THE CLIENT I CAN'T TAKE THAT FROM YOU. JUSTICE PATTERSON:
BECAUSE THAT WOULD BE THE ADMISSION THERE THE CLIENT THIS IS THE EVIDENCE AGAINST ME I
AM GUILTY. THAT'S GOING TO NARROW DOWN THE NUMBER OF CASES. CLAUDE CAROLINE
HEFFRON: I THINK YOU KEEP SOMETHING THAT LET'S YOU KNOW. I DON'T THINK THAT
WE CAN ASSUME WHEN SOMETHING IS NOT CLEAR AN INSTRUMENTALITY OF IT'S CRIME OUTSTAYS.
I THINK WE NEED TO OPERATE AS THOUGH THE LAWYER'S TAKING IT IN GOOD FAITH
TO INSPECT IT DO FOLLOW-UP INVESTIGATION, TO INVESTIGATE IT FURTHER TO TRY TO
FIND OUT WHAT IT IS AND OUR RULES SAYS IF YOU WERE GOING THIS AND YOU'RE ACTING
IN GOOD FAITH AND YOU'RE NOT TAKING THIS AFFIDAVIT BECAUSE YOU WISH TO KEEP IT OUT
OF THE PROSECUTORS HANDS BUT BECAUSE YOU LIKE TO TALK TO ZAY AND YOU WANT TO
SHOW HIM THE AFFIDAVIT. JUSTICE PATTERSON: I'M NOT IMMUNE ANY I WILL
WILL TO THE LAWYER. I'M TALKING ABOUT THE FACT THAT UNDER YOUR RULE IF SOMETHING
IS NOT ACCOMPANIED BY AN ADMISSION OF GUILT FROM CLIENT TO LAWYER AND IS NOT
ACCOMPANIED BY A LABEL THAT SAYS INSTRUMENT OF CRIME, THIS IS CONNECTED WITH A
MURDER ON X STREET, THEN FORFEITING IT WITH THE LAWYER KEEPS IT FOREVER OUT
OF THE HANDS OF THE STATE. AND THAT IS AN INCENTIVE FOR PEOPLE TO USE LAWYERS FOR
A PROCESS THAT I WOULD RESPECTFULLY SUGGEST IS NOT CONDUCIVE TO THE SON SEARCH
FOR THE TRUTH. CLAUDE CAROLINE HEFFRON: I UNDERSTAND THE CONCERNS. AND
THAT'S -- I WANT TO RESTATE PERHAPS I WASN'T CLEAR. OUR RULE HAS TO DO WITH
WHAT SHOULD HAPPEN IN A CASE WHERE A DEFENSE ATTORNEY ACCEPTS SOMETHING THAT THEY
DON'T KNOW IS AN INSTRUMENTALITY OF A CRIME. THAT THEY DON'T HAVE REASON TO BELIEVE,
THAT MAYBE AN ADMISSION, THERE MAY BE OTHER FACTS SURROUNDING IT. I MEAN A KNIFE
ISN'T INHERENTLY EVERY ONE OF US HAS KNIVES IN OUR KITCHEN. THAT'S A PROPERTY.
ABOUT WHEN IT COMES TO YOU WITH BLOOD IT'S FACTS ASKING THIS ITS NOT A 95 YOU
SHOULD TAKE. WHAT MAKES THIS CASE VERY DIFFICULT IS THAT NOBODY KNOWS WHAT THE
VALUE OF IS OUTSIDE OF FURTHER CONTEXT. SO I THINK IT'S HIGHLY PLAUSIBLE AND THE
INFERENCE THAT WE'RE SUGGESTING IS BECAUSE OF THE TIME LAPSE IT MAKES IT HIGHLY
PLAUSIBLE THAT THIS WAS RECEIVED WITH NO I WILL INTENT ON BEHALF OF THE ATTORNEY
BUT THE ATTORNEY'S SOLE DESIRE WAS TO INVESTIGATE IT. AND YET IT CAN STILL HAVE
A CHILLING EFFECT BECAUSE IF A DEFENSE ATTORNEY GOING TO HAVE TO PREJUDGE
EVERYTHING THAT COULD COME INTO THEIR HANDS AND SAY WILL THIS LATER TURN OUT
TO BE TROUBLING FOR MY CLIENT AND I WILL HAVE TO DISCOVER IT THEY WON'T ACCEPT
DOCUMENTS. THEY WON'T SCRUTINIZE THESE THINGS. JUSTICE NORIEGA: I'M SORRY TO
INTERRUPT YOU. BUT IS THE TRULY THAT YOU'RE SUGGESTING THEN SOLELY WHEN IT'S
INTENDED TO BE USED IS THE ONLY TIME FACTUAL BASIS TURNED OVER. CLAUDE CAROLINE
HEFFRON: THE RULE THAT WE'RE SUGGESTING IS THAT SOMETHING THAT LATER BECOMES
INCULPATORY SHOULD NOT HAVE TO BE TURNED OVER. JUSTICE NORIEGA: EVER.
JUSTICE PATTERSON: INCULPATORY OR LATER BECOMES KNOWN TORE INCULPATORY.
CLAUDE CAROLINE HEFFRON: IS REVEALED TO BE INCULPATORY. I RECOGNIZE THERE IS SOME
DISCOMFORT BECAUSE OF THE FEAR DEFENSE ATTORNEY'S OFFICE BECOMING REPOSITORS.
I WANT TO UNDER SCORE I DON'T WANT TO SAY THIS IS NOT A LET NATURE FEAR BUT
I DON'T THINK THIS IS A FREQUENT SCENARIO AND THE REASONS ARE SEVERAL. FIRST,
AS WE KNOW IN THIS CASE OR IN THE STATE NEARLY 90 PERCENT OF INDIVIDUALS CHARGED
WITH CRIME ARE REPRESENTED BY THE PUBLIC DEFENDER. THEY ARE NOT ASSIGNED COUNSEL
UNTIL THEY'VE GONE THROUGH VY P. UNTIL THEY'VE BEEN PROCEEDED THEY'RE NOT
ABLE TO SAY I JUST COMMITTED A CRIME I CALL MY ATTORNEY BECAUSE THEY DON'T HAVE
ONE IN MANY CASES. AND THE AGAIN THE FACT THAT THIS IS NOT OBVIOUSLY OBVIOUSLILY
INCULPATORY MAKES THIS UNIQUE SO IN MANY OTHER CASE AND IN THE OUTER INJURE DISKS
CASE AT STATE AND ATTORNEY GENERAL'S OFFICE HAVE CITED TO. IT'S VERY OBVIOUSLY IT IS
THE BLOOD YEAH SHOES, THE BLOODY 95. SOMETHING DEFENSE ATTORNEY SHOULD NOT
NOT TO ACCEPT. ACTUALLY THE BENEFITS ATTORNEYS SEEKING THEM OUT BE AT THE
BEHEST OF THE CLIENT WHICH IS ABSOLUTELY NOT SOMETHING OUR RULE WOULD NOT ENCOURAGE.
I RECOGNIZE THERE CAN BE CERTAIN. JUSTICE PATTERSON: I THOUGHT THE
SUGGESTION HERE IS THAT THERE'S NOTHING INDICATING EVEN REMOTELY OCCURRED HERE.
CLAUDE CAROLINE HEFFRON: CORRECT. JUSTICE PATTERSON: IF IT EXIST THE
ATTORNEY DID NOTHING TO GET IT. CLAUDE CAROLINE HEFFRON: WE HAVE NO IDEA.
THIS COULD HAVE COME ABOUT IF IT EXISTS IF IT'S IN DEFENSE ATTORNEY'S HANDS IT COULD
HAVE COME BACK BECAUSE HIS CLIENT WILL BED IT TO HIM. THEY PARTY HANDED IT
TO AIM. HE COULD HAVE INTERVIEWED ZAY AND ZAY GAVE IT TO HIM. WE DON'T KNOW
WHAT HAPPENED HERE. CHIEF JUSTICE RABNER: YOU'RE OPERATING ON THE BASE
OF THE CERTIFICATION THAT HAS BEEN PRESENTED. CLAUDE CAROLINE HEFFRON:
RIGHT. CHIEF JUSTICE RABNER: PIVOTING OFF OF THOSE FACTS. CLAUDE
CAROLINE HEFFRON: THE LIMITED FACTS THERE IN THE SET INDICATION ARE WE BELIEF THE
STATE OF NEW JERSEY BELIEVES THAT DEFENSE ATTORNEY HAS IT BECAUSE THAT SEEMS LOGICAL
TO THEM. THOSE ARE THE FACTS. CHIEF JUSTICE RABNER: AN UNFOR
IDENTIFICATION FOR IDENTIFICATION KOA CONSPIRATORS TURNED OVER TRACTOR TRAILER
AFFIDAVIT TO DEFENSE COUNSEL. CLAUDE CAROLINE HEFFRON: AND I DON'T REALLY
KNOW WHY THEY'RE UNIDENTIFIED AT THAT POINT BECAUSE THEY'VE BEEN CHARGED AT THE
POINT THE AFFIDAVIT WAS. CHIEF JUSTICE RABNER: LET'S -T NOT QUARREL
THE FACTS. THOSE ARE THE FACTS THAT WE SHOULD FOCUS ON. CLAUDE CAROLINE
HEFFRON: RIGHT THOSE ARE THE FACTS. THOSE FACTS DENIED PROVIDE A BASIS FOR
US TO BELIEVE THAT ANY NEFARIOUS MEANS ARE USED TO GET IT. THEREFORE, WE HAVE TO
ENCOURAGE DEFENSE ATTORNEY TO INVESTIGATE SUCH LEADS. WHEN THINGS COME INTO
THEIR HANDS THAT THEY DON'T KNOW WHAT THEY ARE. THEY NEED TO KNOW WHAT THEY ARE.
JUSTICE WAINER APTER: ARE YOU SAYING THAT UNDER RELEASED .4 THAT IT ONLY
APPLIES IF IT IS SOMETHING THAT IS IMMEDIATELY OBVIOUSLY INCULPATORY OR DID
YOU AGREE YOU HAVE AN OBLIGATION TO TAKE SOMETHING IN. YOU TAKE SOMETHING IN
THEN YOU REALIZE OKAY THIS IS PHYSICAL EVIDENCE OF A CRIME AT THAT POINT YOU
NEVER HAVE AN OBLIGATION TO TURN IT OVER YOU CAN JUST HOLD ON IT TO FOREVER.
CLAUDE CAROLINE HEFFRON: THAT'S OUR PRIMARY POSITION. JUSTICE WAINER APTER:
EVEN UNDER THE PROFESSIONAL RULES. CLAUDE CAROLINE HEFFRON: I DON'T THINK
THE PROFESSIONAL RULE, THE PROFESSIONAL RULE REQUIRES TO BE TO UNLAWFULLY OBSTRUCT.
SO I WOULD SAY THAT THERE IS -- THAT'S NOT THAT'S NOT AN UNLAWFUL OBSTRUCTION
IF IT'S TAKEN FOR THE PURPOSE OF CONDUCTING INVESTIGATION. I DON'T THINK YOU
HAVE THAT I WILL INCIDENT THAT'S REQUIRED THERE. JUSTICE WAINER APTER:
SO WOULDN'T NEW JERSEY THEN BECOME THE ONLY JURISDICTION TO HOLD THAT DEFENSE
COUNSEL CAN WITHHOLD INCULPATORY EVIDENCE IN ITS POSSESSION FOREVER. CLAUDE
CAROLINE HEFFRON: I DON'T THINK WE'VE SEEN ANY OTHER JURISDICTIONS WHO FACE A FATAL
SCENARIO LIKE THIS WHEN IT'S NOT CLEAR WHAT THE CONTENT IS. JUSTICE WAINER
APTER: I APOLOGIZE WHY YOU'RE SAYING IT'S DIFFERENT IF THEY KNOW NOT TO ACCEPT
IT. BUT IF THEY DO ACCEPT IT WE'RE TALKING ABOUT ETHICAL OBJECTION OR A STATUTORY
OBLIGATION TO TURN IT OVER WHICH OF COURSE ONLY APPLIES IF THEY ACCEPT IT.
SO WHY IS IT A GOOD IDEA FOR NEW JERSEY TO BE THE ONLY JURISDICTION THAT SAYS
THAT YOU CAN ACCEPT EVIDENCE OF A CRIME AS LONG AS YOU'RE NOT A HUNDRED PERCENT
SURE THAT IT'S INCULPATORY AND THEN AS SOON AS YOU LEARN IT'S INCULPATORY YOU
NEVER HAVE TO THE TURN IT OVER. CLAUDE CAROLINE HEFFRON: BECAUSE OF THE
SIXTH AMENDMENT. BECAUSE OF THE RIGHT TO COUNSEL BECAUSE OF THE RIGHT TO EFFECTIVE
INNOCENCE OF COUNSEL BECAUSE OF THE ATTORNEY CLIENT RELATIONSHIP. OUR COURT
HAS TO STRIKE A PAL BETWEEN THE STATE'S INTEREST MOTIONS TO SUPPRESS ARE
GENERALLY ABOUT. THE STATE USUALLY HAS AN INTEREST IN THE EVIDENCE THAT IS
OBTAINED AND THE DEFENDANT'S FOURTH AMEND RIGHTS IN THOSE CASES OR IN THIS CASE THE
SIXTH AMENDMENT RIGHT AND WHAT WE'RE CONCERNED ABOUT HERE CHILLING LEGITIMATE
INVESTIGATIONS WHAT WE'RE CONCERNED ABOUT HERE IS DEFENSE ATTORNEY WHO DON'T
WANT TO LOOK INTO POTENTIAL INVESTIGATIVE LEADS. AND WINDOW WE BELIEF THAT'S
THE APPROPRIATE BALANCE. IF THE COURT IS IS NOT COMFORTABLE WITH STRIKING TAKE
BALANCE BETWEEN CONSTITUTIONAL RIGHT AND THE STATE'S INTEREST IN HELPED AS AN
ALTERNATIVE WE HAVE PROPOSED AND I BELIEVE IT'S ON PAGE 16 OF OUR BRIEF A BALANCING
TEST WHICH OFFERS PROTECTIONS UNDER THE SIXTH AMENDMENT AS WELL WHICH ENDEAVOR
TO STRIKE A DIFFERENT BALANCE. THE REASON THIS IS NOT OUR INITIAL PROPOSED RULE
BECAUSE AS MR. KEENAN SAID DEFENSE ATTORNEYS NEED CLARITY. WE DON'T REALLY WANT
PEOPLE TO STOP AND SAY WHAT IS THIS GOING TO TURN UP. WE WANT ATTORNEYS TO
GO INVESTIGATE CASES. CHIEF JUSTICE RABNER: IS YOUR ALTERNATIVE TEST
THE ONE THAT REQUIRES A SHOWING FOR PROBABLE CAUSE FOR ACER A ESSENTIAL OF STEPS.
CLAUDE CAROLINE HEFFRON: SOMETHING ALTERNATIVE THOSE LINES. PROBABLE
CAUSE THAT THE STATE HAS EXECUTED OTHER THOUGHTS OF GETTING OR HAS MADE OTHER
ATTEMPTS TO GET IT. CHIEF JUSTICE RABNER: SO IT'S ESSENTIALLY A SEARCH
WARRANT BUT HAVING COME FORWARD WITH SEARCH WARRANT TYPE PROVES THE STATE WOULD NOT
CONDUCT THE ACTUAL SEARCH, IS THAT WHAT YOU'RE AIMING AT HAD EFFICIENT HELP
IN A SENSE BUT I THINK WHAT WE'RE REQUIRING IS PERHAPS A LITTLE DIFFERENT BECAUSE
WHAT WE DON'T HAVE HERE AND I THINK SOME OF THE QUESTIONS THAT ARE MILLING AROUND
THIS CASE ARE WHAT DID THE STATE DO TO GET THIS, RIGHT. BECAUSE IF THE STATE COULD
HAVE SEARCHED AFTER THE ADDRESS IN HOBSON STREET IS AND FAILED TO SEARCH THAT
ADDRESS WHERE THIS TAMPERING OCCURRED FOR THE AFFIDAVIT AND THEIR FIRST STEP IS
TO TRY TO YET DEFENSE TO TRY TO DID IT CLOSE IT. THAT'S WHAT'S TROUBLING TO
US. JUSTICE PATTERSON: THIS IS NO SUGGESTION OF THAT AT ALL.
CLAUDE CAROLINE HEFFRON: THERE'S NO SUGGESTION OF WHAT THEY DID. JUSTICE
PATTERSON: AND IF THERE IS AN AFFIDAVIT OUT THERE AND IT HASN'T BEEN COPIED AND
ITS IN THE HANDS OF DEFENSE COUNSEL THEY COULD SEARCH EVERY PROPERTY IN COUNSEL
AND EVERY CAR IN TOWN AND NEVER FIND IT SO WHY IS THAT EVEN WHAT THEY DID OR
DIDN'T DO IN OTHER PLACES EVEN RELEVANT TO THIS ISSUE. CLAUDE CAROLINE HEFFRON:
BECAUSE I THINK THAT ASKING THEM -- IT'S CONSISTENT WITH THE LANGUAGE THAT THE
STATE -- THE DEFENDANT HAS TO RIGHT TO THE STATE INVESTIGATING THEIR OWN PROOFS.
THE DEFENSE NOT BEING A PART OF THAT. THE DEFENDANT NOT SEEING THEIR ATTORNEY
IN COURT PARTICIPATING WITH THE STATE LIKE SEE MANY PEOPLE THING TRANSIT DENIES
ATTORNEYS DO. JUSTICE PATTERSON: THIS HINGES ON A WHOLE BUNCH OF OTHER
THINGS IT KNOWS GOING TO BE A WASTE OF TIME AND RESOURCES BECAUSE THEY HAVE
INFORMATION I DON'T KNOW IF THEY DO OR THEY DON'T. BUT THEY HAVE INFORMATION THAT'S
IN THE POSSESSION OF THE LAWYER. CLAUDE CAROLINE HEFFRON: WELL, THEY DON'T
HAVE THAT INFORMATION HERE SO WE'RE ASKING THEY SAY WHY THEY THINK IT'S IN
POSSESSION OF THE LAWYER WHY THEY EVEN NEED IT. I THINK THE STATE SHOULD HAVE
TO ARTICULATE A NEAT. JUSTICE PATTERSON: WHY THEY DON'T NEED ON A PROSECUTION
THAT IS BATES HAD UPON ALLEGATIONS OF A WITNESS BEINGS FORCED AT GOOD GUNPOINT
TO RADIO CAN'T TESTIMONY AND SIGN AN AFFIDAVIT THEY HAVE TO EXPLAIN WHY THIS IS
IMPORTANT TO THAT CASE. CLAUDE CAROLINE HEFFRON: I THINK THEY SHOULD
HAVE TO. THEY HAVE -- I CAN'T IMAGINE THE STATE WALKING INTO A BETTER CASE. I
REALLY CAN'T. THEY HAVE A COOPERATIVE WITNESS DESPITE MULTIPLE ATTEMPTS AT
THREATS, MULTIPLE THINGS THAT WOULD SCARE OFF THE AVERAGE WITNESS. HE CONTINUES
TO COOPERATE WITH THEM. SO I THINK THAT THEY SHOULD HAVE TO SHOW WHY THEY NEED
THE SPECIFIC OBJECT. WE CAN SIT HERE AND MAKE OUR INFERENCES BUT I THINK THEY
SHOULD BE REQUIRED TO MAKE SOME SORT OF SHOWING BEFORE A DEFENSE ATTORNEY IS SUPPOSED TO COMPROMISE THEIR CLIENT ATTORNEY RELATIONSHIP WHICH IS SO VIOLENT TO
ATTORNEY AND HAS TO COMPROMISE AND CHILL FUTURE INVESTIGATIONS I THINK THEY
HAVE TO MAKE A SHOWING OF NEED, A SHOWING THAT THEY'VE LOOKED ELSEWHERE.
JUSTICE NORIEGA: WHERE IS THAT IN THE COURT RULE. CLAUDE CAROLINE HEFFRON:
WHERE IS THE ALONG TEST. JUSTICE NORIEGA: THAT WHERE THERE IS A WITNESS
THAT STATE IS FOG TO CALL AT TRIAL THE VICTIM IN THIS CASE WITNESS TESTIMONY PARK.
THERE'S A WRITTEN STATEMENT THAT THAT WITNESS IS PURPORTING SUGGEST EXISTS
WHERE DO WE READ THAT INTO THE RULE IN TERMS OF GIVING THIS -- PUTTING THAT
EXTRA BURDEN ON THE PROOF. CLAUDE CAROLINE HEFFRON: I THINK IF YOU'RE
READING THIS AS A REASON STATEMENT YOU'RE MORE AKIN TO WILLIAMS. I UNDERSTAND THE
MYRIAD CONTINUES IT IS BETWEEN WILLIAMS. YOU'RE AKIN TO WILLIAMS THE TRIGGER
IS SEPTEMBER TO USE. IF YOU'RE PER SEIZING THIS TO BE A STATEMENT. THE STATEMENT
THE STATE DID YOU WANT INTEND TO USE I DON'T SEE THE OBLIGATION. THE BALANCING
TEST WE'RE SUGGESTING IS IF THIS COURT IS NOT INCLINED TO GO IN THE DIRECTION
OF OUR ORIGINAL RULE WHICH WE THINK PROVIDES THE MOST TRANSPARENT CLEAR AND
STRAIGHT FORWARD VICE TO THE ATTORNEYS AT LEAST REQUIRES SOMETHING OF THE STATE
BEFORE ASKING DEFENSE TO LIZ CLOSE THIS BECAUSE OF THE SEVERE IMPACT IT WILL
HAVE. CHIEF JUSTICE RABNER: YOU'RE ACTUALLY ASKING FOR SOMETHING MORE THAN
A SEARCH WARRANT AS IT TURNS OUT, THAT FAIR TO SAY IS THAT FAIR TO SAY BECAUSE
IF THE STATE HAD PROOF OF A SEARCH WARRANT THEY WOULD HAVE ALSO HAVE TO DEMONSTRATE
BY PROBABLY CAUSE THEY FAILED NOT TAKING STEPS EARLIER OR DIDN'T TAKE STEPS
EARLIER TO UNCOVER WHAT THEY MIGHT HAVE. CLAUDE CAROLINE HEFFRON: I'M NOT AS YOU
GOING THEY HAVE TO PROVE PROBABLE CAUSE. I DON'T THINK WE TOOK A POSITION AS TO
QUANTUM OF PROOF OR HOW THEY WOULD PLAY NATIONAL BALANCING TEST. WE WOULD
LEAVE THAT TO THE COURT'S SOUND DISCRETION. BUT WE WANTED TO SUGGEST SOME FACTORS
THAT COULD BE USEFUL IN FRAMING SUCH AIRSHAFT. CHIEF JUSTICE RABNER: SO
A SEARCH WARRANT WOULD NOT BE ENOUGH. CLAUDE CAROLINE HEFFRON: I HAVE
MY CONCERNS ABOUT ENCOURAGING THE USE OF A SEARCH WARRANT. BUT OBVIOUSLY IF THE
SEARCH WARRANT WERE TO ISSUE IN THIS CASE I THINK THE DEFENSE WOULD PROBABLY
BE INCLINED TO NOT HAVE THEIR FILES SEARCHED YOU THERE AND JUST PROVIDE THE DOCUMENT.
I'M NOT SAYING THAT ISN'T. CHIEF JUSTICE RABNER: WHICH MAKES HE MEAN
FENTANYLLY GOOD SENSE TO ME WHICH IS WHY THE NARROWING OF THE FIELD IS CONCERNING.
CLAUDE CAROLINE HEFFRON: I'M NOT SUGGESTING SO MUCH THAT A SEARCH WARRANT
ISN'T A PLAUSIBLE AVENUE BUT I THINK AS DISTRICT FROM THE PUBLIC DEFENDERS
APPROACH THAT I THINK MAYBE HAS A MORE POSITIVE VIEW OF THAT APPROACH WE WOULD
SAY AS TO THE DISCOVERY RULES AVENUE WERE THIS TO BE PROVIDED THROUGH A DISCOVERY
DEMAND A BALANCING TEST AS TO NEED AND AS TO METHODS THAT HAVE USED TO TRY TO
OBTAIN IT WOULD BE MORE APPROPRIATE IN THE DISCOVERY CONCEPT SAL. JUSTICE
SOLOMON: I JUST HAVING ALLY DIFFICULT WRAPPING MY HEAD AROUND SOMETHING. IN
THIS PARTICULAR CASE AS YOU SAID THEY HAVE A COOPERATING WITNESS VICTIM WHO HAS TOLD
THEM THIS IS WHAT HAPPENED AND I HAVE TO SIGN THIS AFFIDAVIT AT GUNPOINT. THESE
ARE THE PEOPLE THAT DID IT WITH ME. AND THEY FIGURE ALL RIGHT. WELL, THE
DEFENDANT AND THESE PEOPLE OBVIOUSLY KNOW EACH OTHER BECAUSE OUR COOPERATING
WITNESS HAS TOLD US THAT MAYBE THEY TURNED IT OVER TO THE COUNSEL AND SO PROVIDED
DISCOVERY REQUEST BECAUSE IT'S INCULPATORY, THAT'S THE CASE WE HAVE IN FRONT
OF US. UNDER THE RULES UNDER THE SPECIFICITY OF THOSE RULES. THAT EVE HE
GOT MORE THAN PROBABLE CAUSE. THEY'VE GOT THE EVIDENCE FROM VICTIM WITNESS WHO IS
INVOLVED AND WHO LIKELY HAS IT. HOW IS THIS NOT THE SIMPLE RULE OF DISCOVERY AND
ALL THE BURIED HE KNOWS YOU'RE TALKING ABOUT HAVE ALREADY BEEN MET. CLAUDE
CAROLINE HEFFRON: I DON'T KNOW THAT THEY WOULD HAVE PROBABLE CAUSE THAT IT'S IN
THE POSSESSION OF THE DEFENSE ATTORNEY I DON'T THINK THE FACTS MAKE THAT CLEAR.
JUSTICE SOLOMON: BASED ON THE FACT THAT IT WAS DEFENDANT AND HIS RELY ADVERTISE.
CLAUDE CAROLINE HEFFRON: I MEAN THAT WOULD BE MY CONTENTION. I THINK
WHAT WE WOULD WANT TO KNOW IS DEFENSE -- MR. KNIGHT IS CHARGED IN THE CONSPIRACY,
I DON'T KNOW WHAT FACTS LINK HIM TO THIS. I KNOW THE OBVIOUS INFERENCES BUT
I DON'T KNOW THAT THOSE ARE FACTS THAT HE IS CLEARLY INVOLVED IN THIS CONSPIRACY
YOU CAN MAN INCULPATORY. JUSTICE SOLOMON: YOU THEY DON'T NEED TO PROVE
THEIR CASE BEYOND A REASONABLE DOUBT BEFORE THEY GET DISCOVERY. CLAUDE CAROLINE
HEFFRON: NO, I DON'T THINK -- I CERTAINLY NOT. BUT I THINK THAT WE -- I THINK
THAT CERTAIN FACTS SHOULD BE ASSERTED BECAUSE WHAT I'M CONCERNED ABOUT SEEING
IS A PROLIFERATION OF THESE REQUESTS IN EVERY CASE WHERE YOU GET INTO MURKY AREAS
OF SOMETHING THAT A DEFENSE ATTORNEY HAS OBTAINED THAT THEY'RE TRYING TO
INVESTIGATE THAT THEY'RE NOW REQUIRED TO DISCOVERY THAT THEY NEVER INTENDED TO
USE AND THAT'S WHY WHAT'S CONCERNING IS GOES BEYOND THIS CASE AND WHAT'S CONCERNING
IS THAT WE DON'T KNOW WHAT'S COPPING DOWN THE PIKE AND WE WANT TO PROTECT.
CHIEF JUSTICE RABNER: AND TO DO SO YOU'RE ASKING A PROBABLE CAUSE STANDARD BE READ
INTO THE DISCOVERY RULE. CLAUDE CAROLINE HEFFRON: I'M SUGGESTING IN A
CASE WHERE A BETWEEN ATTORNEY DID NOT INTENTIONALLY OBTAIN SOMETHING, THEY ARE NOT
ACTIVELY FUNCTIONING INTENTIONALLY TOP SAFE A DEPOSE TOWER OF EVIDENCE IN THE
COURSE OF PROVIDING THEIR EFFECTIVE REPRESENTATION COMES INTO POSSESSION OF
LATER CON INOCULA PEAR THERE SHOULD NOT BE AUTOMATIC CHRIS CLOSE. I THINK THAT'S
WHAT WE'RE ARGUING AGAINST HERE. BECAUSE OF THE CHILLING EFFECT AND WHETHER YOU
YET THERE FROM OUR PRIMARY RULE THAT HELP SHOULD NOT HAVE TO DISCLOSE IT OR
FROM SOME FORM OF A BALANCING TEST I THINK ON A BAR EVEN RECORD LIKE THIS WE
CAN'T REQUIRE AUDIO DISCLOSURE GOING FORWARD. CHIEF JUSTICE RABNER: THAT
YOU COUNSEL. CLAUDE CAROLINE HEFFRON: THAT YOU. CHIEF JUSTICE RABNER:
MR. HANLEY. MATTHEW E. HANLEY: GOOD MORNING, EVERYONE. WHAT WE'RE DEALING
WITH IN THIS CASE IS AN CRITICAL PIECE OF EVIDENCE IN NOT ONLY A HOMICIDE BUT
ALSO IN A WITNESS TAMPERING. SOME VERY SERIOUS CHARGES. THE PLAIN LANGUAGE OF
THE DISCOVERY RULE IN THIS CASE REQUIRES THAT THIS PIECE OF EVIDENCE BE TURNED
OVER, THE PLAIN LANGUAGE. WHICH THEN REQUIRES US TO TURN TO IS THERE ANY
REASON IT SHOULD NOT BE TURNED OVER. AND AS YOUR QUESTIONS INDICATED TO MR. KEENAN,
THIS IS NOT A PRIVILEGED DOCUMENT. IT WAS NOT CREATED BY AN ATTORNEY. IT WAS
CREATED BY A WITNESS TO A HOMICIDE, IT WAS SIGNED BY HIM AT GUNPOINT ACCORDING TO
HIS AFFIDAVIT. IT WAS NOT CREATED TURNED DIRECTION OF AN ATTORNEY. IT'S NOT
PRIVILEGED IN ANY WAY. IT DOESN'T MEMORIALIZE ANY COMMUNICATIONS BETWEEN
AN ATTORNEY AND HIS CLIENT. THE PRODUCTION OF THIS DOCUMENT, AS I SAID IS CRITICAL
TO TWO PROSECUTIONS. AND THE PRODUCTION WOULD SERVE ESSENTIALLY THE PURPOSE OF
THE RULES, THE PURPOSE OF DISCOVERY OVERALL WHICH IS THE SEARCH WARRANT FOR TRUTH.
AND THE STATE IS ENTITLED TO THE DISCOVERY UNDER THE RULES. TO REQUIRE THE
STATE TO OBTAIN A SUBPOENA OR A SEARCH WARRANT TO OBTAIN THIS DISCOVERY
ESSENTIALLY RENDERS THE RULES COMPLETELY USELESS. AS I SAID, THE PLAIN LANGUAGE
REQUIRES THE PRODUCTION OF THE DOCUMENT. I WELCOMES YOUR QUESTIONS. CHIEF
JUSTICE RABNER: WHAT'S YOUR POSITION ON WHAT THE JURY CAN LEARN ABOUT IF YOU WERE
TO OBTAIN TAKE DOCUMENT HOW YOU A REQUIRED IT. MATTHEW E. HANLEY: AS JUSTICE
NORIEGA POINTED OUT I THINK THAT WOULD BE UP TO THE TRIAL JUDGE TO LIMIT. I DON'T
THINK. CHIEF JUSTICE RABNER: WHAT'S YOUR POSITION WHEN THE TRIAL JUDGE ASKS
YOU FOR IT. MATTHEW E. HANLEY: IF THE TRIAL JUDGE ASKS ME I DON'T THINK
IT WOULD COME IN HOW THE DOCUMENT CAME OUT. WHETHER THE DOCUMENT WAS PRODUCED FROM
BETWEEN COUNSEL WOULD ONLY CON PEWS THE JURY HOW IT GOT THERE. I DON'T THINK THAT
SHOULD COME OUT AT TRIAL. JUSTICE PATTERSON: SO WITH WHAT SHOULD HAPPEN
IS SOMETHING ALONG THE LINES OF EITHER A STIPULATION OR ADMONITION TO THE JURY NOT
TO SPECULATE AS TO WHERE THE DOCUMENT CAME FROM. MATTHEW E. HANLEY: THAT
ABSOLUTELY WOULD BE ONE WAY TO DEAL WITH IT LIMITING ORDER THE JURY IS NOT
TO CONSIDER WHERE IT CAME FROM AND I'M ASSUMING THERE WOULD BE NO TESTIMONY OR NO
COMMENTS AS TO HOW THE DOCUMENT CAME MONTH THE TRIAL OR HOW THE DOCUMENT CAME
MONTH THE POSSESSION OF THE STATE. CHIEF JUSTICE RABNER: QUESTIONS ANYONE.
JUSTICE NORIEGA: WHY NOT A SUBPOENA. MATTHEW E. HANLEY: WELL, AS I SAID
IF I REQUIRE THE STATE TO GET A SUBPOENA FOR ALL EVIDENCE THAT'S RELEVANT AND
THE STATE IS ENTITLED TO UNDER THE DISCOVERY RULES IT REALLY RENDERS THE USELESS
USELESS. JUSTICE NORIEGA: I'M NOT TALKING ABOUT ALL EVIDENCE. IF THE
DEFENDANT IS GOING TO PUT ON WITNESSES, IF THEY HAVE INFORMATION ABOUT YOU KNOW
STATEMENTS FROM OTHER WITNESSES IN THE CASE, HIS POTENTIALLY INCULPATORY, ISN'T
THAT REALLY AT THE HEART OF IT. THERE'S SOME OTHER FACTOR HERE. AND IF THE
STATE'S AWARE OF IT WHY NOT ISSUE A SUBPOENA FOR IT. MATTHEW E. HANLEY:
THE STATE COULD ISSUE A SUBPOENA FOR IT. BUT AS I SAID THE DEFENDANT IS OBLIGATION
TO PROVIDE THE DOCUMENT TO PROVIDE US. SO WE DON'T WANT TO GET INTO AN INQUIRY
AS TO WHICH -- WE ASK THE FOR THE DOCUMENTS THAT THE STATE IS ENTITLED TO IN
DISCOVERY AND THE DEFENDANT COMES BACK AND SAYS THESE ARE WHAT WE WILLING TO PROVIDE AND
THESE ARE WHAT WE -T A SUBPOENAED. CHIEF JUSTICE RABNER: WHAT IS YOUR
RESPONSE TO THIS COULD BECOME A ROUTINE WHY IN EVERY CASE. MATTHEW E. HANLEY:
I'M NOT QUITE SURE I UNDERSTAND THE CHILLING EFFECT ARGUMENT. I THINK THAT
THERE'S NOT A CHILLING EFFECT -- I THINK IT'S AN UNUSUAL CASE FACTUALLY THAT WE HAVE
HERE. I DON'T THINK THAT THERE WILL BE A CHILLING EFFECT ON ANY COMMUNICATION BETWEEN
THE DEFENDANT AND THEIR ATTORNEY BECAUSE THAT'S NOT WHAT HAPPENED HERE. WHAT
ESSENTIALLY HAPPENED HERE IS SOMEONE, WE DON'T KNOW WHO -- WE ARE UNDER THE
LOGICAL INFERENCE THAT SOMEONE TRANSPORTED OR SOMEBODY GAVE THIS DOCUMENT TO THE
DEFENSE COUNSEL. SO IF THERE IS ANY CHILLING EFFECT I THINK THE CHILLING EFFECT
BOB DEFENDANTS WOULD BE LESS LIKELY TO PROVIDE EVIDENCE OF CRIMES TO THEIR
DEFENSE COUNSEL RIGHT WHICH IS PROBABLY A CHILLING WE WANT. I DON'T THINK THERE'S
A CHILLING EFFECT ON ANY COMMUNICATIONS BETWEEN DEFENSE COUNSEL AND THEIR
CLIENTS BECAUSE THAT'S NOT HAPPENED HERE. JUSTICE NORIEGA: I THINK WE'RE LOOKING -T
AT IT IN THE ABSTRACT OF THESE MOMENTAL MEETINGS WHERE THE CLIENT COMES IN
WITH A PIECE OF EVIDENCE AND HANDS IT OFF AND DOESN'T SAY MUCH ABOUT IT AND
THEN THE TONE IS LEFT TO FIGURE IT OUT. INSTEAD THERE'S PROBABLY THOSE MOMENTS
IN THE ESSEX COUNTY COURTHOUSE DEFENDANT EVERY CLIENT HANDS LIEU THE BAR A BUNCH
OF PAPERS LISTEN I INTO HE HAD YOU TO LOOK AT THESE WHEN YOU GOOD ET CETERA A CHANCE
IT CAN ATTORNEY PUTS THEM IN THE FILE. THIS IS AN AFFIDAVIT THIS IS FROM ANOTHER
WITNESS SOMEBODY SAYING SOMETHING ABOUT THE CASE. WOULDN'T THE ATTORNEY SUDDENLY
WANT TO DO THAT, STOP COLLECTING INFORMATION IF THEY WERE AFRAID OF A DISCOVERY
DEMAND REQUIRING THEM TO TURN OVERALL THOSE DOCUMENTS IN EVERY CASE. MATTHEW E.
HANLEY: WELL I SEE WHAT YOU MEAN. SO YOUR CHILLING NEAR I WOULD BE A DEFENSE
COUNSEL WOULD BE LESS WILLING TO ACCEPT DOCUMENTS FROM A CLIENT IF THEY'RE NOT SURE
WHAT DOCUMENTS ARE, RIGHT. I THINK IN THIS OBVIOUSLY THIS IS A VERY STRAINING
CASE BUT I THINK THAT THE EVIDENCE WE HAVE IN THIS CASE IS SO CRITICAL THAT
I THINK IT HAS TO BE PRODUCED REGARDLESS OF WHETHER IT CREATES ACHING EFFECT AND
I DON'T THINK SUCH A CHECK WOULD HAPPEN. AGAIN I DON'T THINK THAT THERE ARE A LOT
OF CASE WHERE DEFENSE COUNSEL IS ACCEPTING AFFIDAVITS FROM WITNESSES THAT WERE
SECURED AT GUNPOINT. I HINGE THE FACTUAL SCENARIO HERE IS VERY UNLIKELY TO
REPLAY ITSELF. JUSTICE WAINER APTER: I UNDERSTAND THE ARGUMENT IF YOU'RE
SAYING THAT THE AFFIDAVIT IS PHYSICAL EVIDENCE AVENUE CRIME. BUT I THOUGHT I
SAW IN YOUR BRIEF THAT YOU'RE SAYING IT HAS TO BE TURNED OVER IN DISCOVERY EVEN
IF IT WASN'T PHYSICAL EVIDENCE OF A CRIME. MATTHEW E. HANLEY: WHICH THAT'S
TRUE. IT IS STILL A STATEMENT THAT THE WITNESS IS CALLING AT TRIAL. IT IS
STILL A STATEMENT OF A CRITICAL WITNESS. JUSTICE WAINER APTER: SO REGARDLESS
OF WHAT WHETHER IT WAS EXCULPATORY OR INCULPATORY, YOU BELIEVE ANY STATEMENT
WOULD ALWAYS HAVE TO BE TEND OVER UNLESS IT WAS PREPARED BY -- MATTHEW E.
HANLEY: YES UNLESS IT WAS PREPARED BY COUNSEL OR COUNSEL'S INVESTIGATOR UNDER
WILLS, THEN YES. JUSTICE PATTERSON: IS THERE ANY DISTINCTION BETWEEN THE
SITUATION WHERE THE DEFENDANT HANDS THE -- JUST FOLLOWING ON JUDGE NOR'S COMMENT
HANDS A PAPERS TO THE LAWYER AND A SITUATION WHERE SOME PARTY APPEARANCE MALES DOUSE.
MATTHEW E. HANLEY: I DON'T UNDERSTAND YOUR QUESTION. JUSTICE PATTERSON:
IS THERE MORE PROTECTION FOR A DOCUMENT FOR EXAMPLE PROVIDED BY THE DEFENDANT
TO COUNSEL VERSUS SOMETHING THAT IS MAILED BY A THIRD PARTY THAT IS NOT IN
AN ATTORNEY CLIENT RELATIONSHIP WITH THAT COUNSEL. MATTHEW E. HANLEY: SO
YOU'RE PLAYING ON MR. NOR'S -- HANDING -- NO, THE DOCUMENT AGAIN WAS NOT CREATED
BY THE RELATIONSHIP OR NOT CREATED BY THE ATTORNEY DOESN'T HAVE ANYTHING TO DO
WITH THE RELATIONSHIP OTHER THAN HANDING IT OVER. IT WOULD BE THE SAME OUTCOME AS
THIS CASE. CHIEF JUSTICE RABNER: OTHER QUESTIONS ANYONE. CHIEF
JUSTICE RABNER: THAT YOU, COUNSEL. MATTHEW E. HANLEY: THAT YOU YOUR HONOR.
CHIEF JUSTICE RABNER: MR. COOPER-DAUB. WILLIAM P. COOPER-DAUB: GOOD MORNING
YOUR HONOR'S ANIME IT PLEASE THE COURT. THERE ARE TWO INDEPENDENT REASONS
IN THIS CASE WHY DEFENSE COUNSEL MUST DISCLOSE ANY REPORTED RYOKAN TASE THAT
IN HIS POSITION THEY'RE KIND OF RELATED I THING IT'S SORT OF IMPORTANT TO DRAW
THIS DISTINCTION HARRIERS THE RYOKAN TASE IS NOT ATTORNEY WORK PRODUCT OR ANYTHING
AKIN TO ATTORNEY WORK PRODUCT SINCE IT WAS NOT CREATED AS PART OF DEFENSE COUNSEL'S
PREPARATIONS OR INVESTIGATIONS FOR TRIAL. SO IT DOESN'T FALL WITHIN THE SCOPE
OF THE PROBATIONS UNDER WILLIAMS AND ALL THE RELATED CASE. THE SECOND INDEPENDENT
REASON IS THE RYOKAN TASE IS SELF TANGIBLE EVIDENCE WHICH WE DISCUSSED AT LENGTH
AS WELL. JUSTICE PATTERSON: TANGIBLE EVIDENCE. WILLIAM P. COOPER-DAUB:
TANGIBLE EVIDENCE RELATING TO THE CRIMPERS WITNESS TAMPERING IN THIS CASE. SO
THAT EVEN MAKES AS WE ACKNOWLEDGED BASICALLY THERE ARE OTHER LEGAL STATUTES AND
ETHICAL REQUIREMENTS WHY TANGIBLE EVIDENCE CANNOT BE WITHHELD BY COUNSEL ON A CASE
FROM THE COURT FROM THE OTHER SIDE. THAT EVIDENCE TANGIBLE EVIDENCE NEEDS TO BE
DISCLOSED AND THAT'S ALSO CERTAINLY WITHIN THE TERMS OF THE RULE. THERE HAS BEEN
A LOT OF DISCUSSION HERE TODAY ABOUT WHETHER AN ITEM IS INCULPATORY OR EXEQUIAL
A PENNSYLVANIA TOWER AND WHETHER AN ATTORNEY, A DEFENSE ATTORNEY MAY ACCEPT
AM ITEM I SUGGEST THE CASE IS EITHER ABOUT THOSE IT'S OBVIOUSLY INCULPATORY OR
EXCULPATORY OR AM BIG IN THE TRIAL. THE KEY THING THERE IF IT'S TANK I BELIEVE EVIDENCE
IT HAS TO BE TURNED OVER. IT DOESN'T MATTER IF IT'S GOING TORICS OR INCULPATORY.
THIS ARGUMENT ABOUT THIS WILL MAKE BETWEEN COUNSEL SORT OF RELUCTANT TO OPEN
ENVELOPES THAT GET SLID UNDER THE DOOR OR TO ACCEPT PAPERS FROM A CLIENT WHO
IS IN JAIL OR IS JUST COMING TO THE OFFICE I SUPPOSE WOULD BE THAT I MEAN AN
ESSENTIAL I WAY FOR THEM TO ADDRESS THAT PROBLEM WOULD SIMPLY MAKE THAT CLEAR IN THE
FIRST MEETING WITH AN CLIENT INTANGIBLE EVIDENCE IN THIS CASE THAT COMES INTO
MY POSITION I HAVE TO DISCLOSE. THAT'S I'M LEGALLY REQUIRED TO DO IT. I'M
REQUIRED BY THE RULES TO DO IT PAR. JUSTICE PATTERSON: DOESN'T THAT ATTORNEY
CLIENT PRIVILEGES I BELIEVE EVIDENCE BEG THE INSURES BUT TO USE JUDGE PIER QUESTION
AS TO MONEY I'M NOT SUGGESTING PAYING THE TONE. BUT THE CLIENT OR A THIRD PARTY
SHOWS UP WITH MONEY SO THAT MAY BE TANGIBLE EVIDENCE OF ABSOLUTELY NOTHING
OR IT MAY BE TANGIBLE EVIDENCE THAT'S RELEVANT TO THE CASE. YOU INTO HE HAD MORE
INVESTIGATION TO FIND THAT OUT. SO WHEN YOU SAY THE KEY TO THE TEST SHOULD BE
TANGIBLE EVIDENCE AREN'T YOU BEGGING THE QUESTION AS TO WHETHER OR NOT IT'S
ULTIMATELY FOG TO BE FOUND INCULPATORY OR NOT. WILLIAM P. COOPER-DAUB:
THIS IS AN UNUSUAL CASE IT'S POSSIBLE THAT THIS RYOKAN TASE ASSUMPTION DEFENSE
COUNSEL GOT IT AT ALL CAME INTO HIS POSSESSION LOOKING MORE LIKE A WITNESS
STATEMENT UNDER THE DIFFERENT PARAGRAPH OF THE RULE AND THEN MAY HAVE BEEN LATER
SORT OF REVEALED TO ACTUALLY BE MAYBE THIS IS MORE THAN A WITNESS STABLE MAYBE
IS INTAKE I BELIEVE. JUSTICE PATTERSON: I THINK THERE'S SOMETHING
ABOUT THIS HYPOTHETICAL PERHAPS EXISTED OR PERHAPS NOT EXISTED DOCUMENT THAT WE'RE
TALKING ABOUT. I THINK THAT MAY HAVE MORE CERTAINTY THAT THIS IS SOMETHING RELEVANT
THAN FOR EXAMPLE THE GENERIC CASH THAT IS TURNED OVER TO COUNSEL. SO I THINK
ARGUABLY YOU WOULD KNOW THAT THIS MAY BE EVIDENCE FOR SOMEBODY WHEN YOU SEE
AN EVIDENT. BUT WHEN YOU SEE CASH YOU MAY NOT KNOW WHETHER IT HAS ANY RELATIONSHIP
TO THE PROSECUTION FOR WHICH THE CLIENT IS -- TO WHICH THE CLIENT IS SUBJECT. SO
HOW CAN THAT TEST BE A MEANINGFUL GUIDE TO LAWYERS. WILLIAM P. COOPER-DAUB:
I THINK AGAIN THAT'S GOING TO THE QUESTION OF -- THIS QUESTION OF CAN AN ATTORNEY,
CAN A DEFENSE ATTORNEY ACCEPT WHAT'S BEING GIVEN TO THYMION I DON'T THINK THAT'S
THE QUESTION. I INC. THE QUESTION IS IS THIS SOMETHING THAT HAS TO BE TOUCHED
OVER IN STORY OR PERHAPS UNDER STATUTE OTHER OR ETHICAL REQUIREMENTS. CHIEF
JUSTICE RABNER: LET'S RETURN TO OUR COLLEAGUES JUSTICE NORIEGA'S QUESTION. HIP
THEY -T CAL HANDING A SHEATH OF DOCUMENTS HOW DOES THE CLIENT OR THE ATTORNEY
KNOW WHAT IS TANGIBLE EVIDENCE WHEN IT IS TRANSFERRED. WILLIAM P. COOPER-DAUB:
I THINK THAT'S PART OF WHAT I'M TRYING TO SAY IS IS THAT IT DOESN'T MATTER
ESSENTIALLY WHETHER THEY KNOW THAT UPON THE TRANSFER THAT THIS ISN'T IS A QUESTION
WHAT THEY KNOW WHEN THEY RECEIVE IT BUT A QUESTION OF IN THEY LATER DO DISCOVER
THAT IT'S THERE IS SOMETHING IN THIS IS INCULPATORY. THE SAME WAY IF AN ENVELOPE
SHOWED UP AT THERE OFFICE AND ON IT IT SAID ALIBI MATERIALS AND THEY SAID OKAY
I'LL STICK THAT ASIDE UNTIL I HAVE TIME TO READ IT THEN WHEN THEY OPENED IT
THEY DISCOVERED IT WAS ACTUALLY SOME PIECE OF PAPER LIKE HERE OR SOMETHING
THAT WAS CLEARLY TANGIBLE IT WAS NOT ALIBI MATERIALS I TOOK IT BECAUSE I THOUGHT
IT WAS ALIBI MATERIALS NOW IT TURNS OUT IT'S INCULPATORY -- THAT DOESN'T SAVE IT
PROSECUTE THE REQUIREMENTS OF PRODUCTION UNDER DISCOVERY. CHIEF JUSTICE
RABNER: WHAT MAKES IT TANGIBLE EVIDENCE IN THE ANSWER YOU'RE PROVIDING US,
WHAT IS TANGIBLE EVIDENCE. WILLIAM P. COOPER-DAUB: IN THIS CASE YOU'RE
ASKING ABOUT THE RYOKAN TASE IN THIS CASE. CHIEF JUSTICE RABNER: IN GENERAL.
YOU'RE DEFINING OF OUR RULE AND I'D LIKE TO UNDERSTAND IT'S SCOPE. WILLIAM
P. COOPER-DAUB: I THINK WHAT MAKES SOMETHING TANGIBLE EVIDENCE THAT ITEM KIND OF
FOCUS MORE IN PAPERS BECAUSE THAT SEEMS TO BE MORE ROOM FOR AMBIGUITY BUT WHERE
A WRITING IS THE VALUE OF ITS IS IN MORE THE INFORMATION IT CONVEYS OF THE SO
THE RYOKAN TASE HERE I DON'T THINK THE STATE IS INTEREST IN ADDITION RECEIVING
THIS RYOKAN TASE FOR THE CONTENT THAT'S WRITTEN ON IT A PHOTOCOPY OF ANY RYOKAN
TASE WOULD NOT REAL BE PARTICULARLY USEFUL. WHAT'S USEFUL IS HAVING THIS ACTUAL
PIECE OF PAPER IN HAND WHICH IS DIRECT EVIDENCE OF THE FACT THAT OF THE
ALLEGATION AT LEAST THAT ZAY WAS TAKING AND FORCED, COMPELLED TO WRITE ARECAINE
\AT A TIME\TAKE IT ANOTHER GUNPOINT. THE VALUE IS IN THE PHYSICAL ITEM AND
WHAT IT IS HOW IT CAME TO BE AND NOT SIMPLY THE INFORMATION BEING CONVEYED.
CHIEF JUSTICE RABNER: IT SOUNDS LIKE YOU'RE TALKING ABOUT INCULPATORY EVIDENCE WHICH
YOU WERE DISPUTING EARLIER. WILLIAM P. COOPER-DAUB: BUT I THINK IT WOULD
BE TANGIBLE EVIDENCE EVEN IF IT WERE SOMETHING EXCULPATORY. JUSTICE
NORIEGA: DOESN'T THAT FEED NATIONAL DEFENSES ARGUMENT BECAUSE YOU'RE SAYING
ALL TAKABLE EVIDENCE MUST BE CURBED OVER ACCORDING TO THE RULE AND SINCE THE BURDEN
IS ON THE STATE THE DEFENSE ITSLY WOULD HAVE TO SIT ON THEIR HANDS AND SAY
EYE I'M NOTHING LOOKING FOR ANYTHING. I'M NOT VERIING ANYTHING. OTHERWISE
I'LL HAVE TO TURN IT ALL OVER. WILLIAM P. COOPER-DAUB: I THINK WHAT WE
HAVE IN THESE CASES MOST OFTEN WE'RE LOOKING AT A LOSS -T INVESTIGATORY PROCESS
IS INTERVIEWING WITNESSES AND RETAINING EXPERT ALL THAT IS PROTECTED UNDER
THAT'S BEING CREATED AS PART OF THE REGS. I DON'T THINK DEFENSE COUNSEL CAN SEND
AN INVESTIGATOR OUT TO THE SCENE OF A SHOOTING SAY LOOK FOR ANY SHELL CASINGS BRING
THEM PACK. WE WANT TO MAKE SURE THE POLICE DON'T RECOVER THEM. IF YOU ARE
A WE SENDING OUT AN INVEST TO SAY TO RECOVER TANK I BELIEVE EVIDENCE I THINK
IT HAS TO BE WITH THE UNDERSTANDING IF YOU FIND INTANGIBLE EVIDENCE IT'S GOING
TO HAVE TO GO TO THE COURT AND THE STATE BECAUSE THAT'S HOW THIS WORKS BECAUSE
OTHERWISE WE WOULD BE TURN DEFENSE COUNSEL OFFICES IN LEE POSITIVES TOWERS FOR
INCULPATORY CRIM NATURING -- I DON'T WANT TO SAY ALL EVIDENCE. ASSUME.
JUSTICE PATTERSON: BY TANGIBLE EVIDENCE ARE YOU CHOOSING THAT TERM TOP INCLUDE BOX
INCULPATORY ANNEX KNOWING THE IT'S GOING TO BE AT LINE. WHAT DOES TANGIBLE
MEAN. WILLIAM P. COOPER-DAUB: I THINK IN TERMS OF TANGIBLE I WOULD SAY WHAT'S
SUES HAD UNDER PARAGRAPH B OF THE RECIPROCAL DISCOVERY RULE WHEN IT TALKS ABOUT
DIFFERENT MATERIALS AND PAPERS THINGS THAT ARE ELECTRONIC BUT WE'RE NOT TALKING
ABOUT WITNESS STATEMENTS. I AGREE THERE COULD BE SOME ATTORNEY CLIENT PRIVILEGES
BIG OUT. JUSTICE PATTERSON: INTANGIBLE SOUNDS LIKE IT'S A
DISTINCTION BETWEEN ELECTRONIC I'M NOT PAT. WILLIAM P. COOPER-DAUB: I'M
NOT TRYING TO DRAW A DISTINCTION BETWEEN EVIDENCE YOU CAN COOP AND BIG MORE
FEMORAL BEING ELECTRONIC. EVIDENCE THAT DOES DIRECTLY TO THE CRIME AND IS NOT.
JUSTICE PATTERSON: RELEVANT EVIDENCE OF A CRIME. WILLIAM P.
COOPER-DAUB: I THINK IT WOULD BE EVIDENCE THAT TIES TO THE CRIME RATHER THAN SORT
OF INVESTIGATION OF THE CRIME LIKE WITNESS STATEMENT ARE EXPERT REPORTS, I MEAN
THOSE ARE THE KEY THINGS I CAN THINK OF THAT ARE CLEARLY EVIDENCE AND CLEARLY
RELEVANT THAT I WOULD NOT SAY ARE TANGIBLE EVIDENCE. JUSTICE PATTERSON:
ARE WE REALLY TALKING ABOUT EVIDENCE THAT IS NOT SUBJECT TO THE WORK PRODUCT
IMMUNITY IN THE POTENTIAL EVIDENCE THAT IS NOT SUBJECT TO THE WORK PRODUCT YOU MEAN
MIGHT OR THE ATTORNEY CLIENT PRIVILEGE. WILLIAM P. COOPER-DAUB: I THINK
THAT OFTEN WILL BE VERY CLOSELY RECEIPTED. I THINK -- THINK THERE MAYBE BE
SOME QUESTION ABOUT IT IF FOR INSTANCE IT TURNED OUT LATER THAT MAYBE A WITNESS
WELL AFTER THE FACT OF A CRIME HAD UNPROMPTED WRITTEN A LETTER TO ANOTHER WITNESS OR
THE THE DEFENDANT'S MOTOR OR SOMETHING TALKING ABOUT WHAT HAD HAPPENED. THAT
MIGHT NOT BE SOMETHING THAT YOU COULD INTRODUCE. IT WOULD BE HEARSAY BUT MAYBE
YOU COULD COME IN TERMS OF IMPEACHMENT OR SOMETHING, I THINK THAT'S MAYBE THE
DISTINCTION I'M TRYING TO DRAW. THAT MIGHT ARGUABLY BE TANGIBLE EVIDENCE IF
IT'S REALLY JUST A STATEMENT. BUT IT ALSO WOULDN'T BE WORK PRODUCT BECAUSE
IT WAS NOT CREATED AS PART OF OR BE AT THE BEHEST OF DEFENSE INVESTIGATION.
CHIEF JUSTICE RABNER: CAN YOU RESPOND TO THE TASK THAT THE A CDL PROFFERS AT THE
END OF ITS BRIEF. WILLIAM P. COOPER-DAUB: YES, YOUR HONOR, I HINGE
THE ALONG TEST IS SIMPLY NOT NECESSARY AND I THINK THE KEY TO THAT EXAMPLES SOMETHING
THIS COURT DISCUSSED LAST TIME IN RAM. WE OBSERVE OPEN FILE DISCOVERY AND
IN CONTEXT WITH THE STATE HAD TO PROVE TO THE DEFENDANT BUT DEFENSE COUNSEL
HAS TO PRODUCE SIMILARLY BROAD DISCOVERY TO THE STATE. AND THAT YOUR HONOR PURPOSES
OF STORY AND I'M NOT SURE NOW WHETHER THIS IS COMING FROM THAT CASE OR WILLIAMS
OR MAYBE IN BOTH BUT ONE PURPOSE OF DISCOVERY IS TOOKING OUT TRUTH. THAT'S
PART OF IT. IT'S NOT DISCOVERY SPOT IS NOT STRICTLY LIMIT TO DO SIMPLY CERTAINLY
THAT'S A MAJOR PART OF IT. BUT THAT'S NOT SORT OF A STRICT LIMITATION ON THE
PURPOSE OF DISCOVERY. SO I THINK THAT A BALANCING TEST LIKE THAT WOULD REALLY HINDER
THAT AND WOULD REALLY STEP BACK FROM THAT THEORY OPEN FILE DISCOVERY AND SAY
WELL YOU CAN GET DISCOVERY ONLY IF YOU SHOWED YOU REALLY NEED IT. I'M NOT
SURE THAT'S HOW THE RULES ARE SET UP TO FUNCTION. CHIEF JUSTICE RABNER:
OTHER QUESTIONS ANYONE. ANYTHING YOU WOULD LIKE TO ADD. WILLIAM P. COOPER-DAUB:
JUST REAL QUICKLY YOUR HONOR, I APOLOGIZE. I THINK ONE THING I DID JUST WANT
TO MAKE CLEAR THERE HAS BEEN THE SUGGESTION THAT WILLIAMS CREATED A BLANKET RULE
THAT DEFENSE COUNSEL NEED NOT TURN OVER ANY MATERIAL THAT THEY DON'T PLAN TO
USE AT TRIAL. AND I THINK THAT'S REALLY NOT THE CASE EVEN JUST LOOKING AT
WILLIAMS ITSELF. I KNOW THERE ARE A COUPLE QUOTES THAT WERE TAKEN OUT OF THERE.
BUT IF YOU REALLY GO -- IF YOU GO AND READ WILLIAMS IT CERTAINLY ADDRESS SPECIFICALLY
WORK PRODUCT AND THE FACT NOT ONLY IS IT -- I KNOW THERE'S THIS LINE IN THERE
ABOUT THE STATE'S TRYING TO READ THIS PRODUCTION OR I'M SORRY, THIS SUBJECT
SEX TOO PRODLY AND IT NEEDS TO BED EYE WORK PRODUCT. ACTUALLY WILLIAMS POINTS OUT
THERE'S A WORK PRODUCT LIMITATION IN THE RULE. THAT'S NOT WE'RE READING THIS TOO
BROADLY WE'RE GOING TO PROPOSE A CONSTITUTIONAL LIMITATION, I THINK
THAT'S PART OF IT WILLIAMS IS THIS IS NOT JUST A CONSTITUTIONAL LIMB INDICATION.
FIGHT WHAT WE SAID ABOVE YOU DON'T HAVE TO DISCLOSE ANY WORK PRODUCT. SO IF THAT
WAY I THINK WILLIAMS IS NOT JUST -- IT'S LIMITED TO OH IT'S VERY MUCH LIMIT
TO DO THAT SITUATION AND TO CONCERNS OF WORK PRODUCT AND CHILLING AFFIRMATIVELY
DEFENSE INVESTIGATIONS LIKE INTERVIEWS AND EXPERT REPORTS BUT THERE ARE IN THE
RULE AS MUCH AS THEY ARE CONSTITUTIONAL CONCERNS. CHIEF JUSTICE RABNER:
THAT YOU COUNSEL. MR. KEENAN BRIEF REBUTTAL. BRIAN P. KEENAN: YES YOUR HONORS,
PICKING UP WHERE THE A G LEFT OFF. IF THE PROVISION FOR. CHIEF JUSTICE
RABNER: TRY TO KEEP YOUR VOICE UP A LITTLE. BRIAN P. KEENAN: IF THE PROVISION
FERROPRINTING WORK PRODUCT DISCLOSED WAS DISPOSITIVE OF WILLIAMS THERE WOULD
BE NO NEED FOR THE COURT TO INTERPRET THE RULE IN LIGHT OF THE PURPOSE FOR
DISCOVERY. QUOTING STATE VERSUS NON-ESSENTIAL, THE CASE WAS CONFINED TO
EXPERT THE COURT LATER HOLDED MATERIALS THAT THE DEFENSE DOES NOT INTEND TO USE AT
TRIAL CITING WILLS. WILLIAMS WE CONCLUDE THAT THE STATE READS THE SUB PARAGRAPH
TWO LITTERY. THE PURPOSE OF THE SUB PARAGRAPH FOUR IS TO AVOID HAVING THE
STATE CONFRONTED AT TRIAL FOR THE FIRST TIME OF WRITTEN STATEMENTS AND SUMMARIES
OF ORAL STATEMENTS OF OWN WITNESSES WHICH MAY BE USED TO ATTACK THE WITNESS'
VIDEO RECORD AN AS AT THE COURTROOM TESTIMONY. IT WILL WYLES WE HAVE THE
PURPOSE OF DISCOVERY LIMITED GAMESMANSHIP TO A PORT THE PARTY TO OBTAIN EVIDENCE
IN SEARCH LAW AN IN ANTICIPATION OF LED AND TESTIMONY WHICH THE ADVERSARY WILL
PRODUCE AT TRIAL. SO THIS LANGUAGE IS ALL CONSISTENT WITH THE NOTION THAT DISCOVERY IS
ONLY AS TO ITEMS OF DEFENSE INTENDS TO USE AT TRIAL THE SPORTS THE DISCOVERY RULE
AND THE PURPOSE THERE OF. IN ADDITION, AS TO THE OTHER ASPECTS. THIS WILL
HAVE A REAL CHILLING EFFECT BETWEEN ATTORNEYS AND THEIR CLIENTS. CLIENT
DON'T WANT TO SEE THEIR ATTORNEYS GETTING UP THERE AND VOLUNTARILY PRODUCING INCULPATORY
INFORMATION THROUGH THE DISCOVERY PROCESS. IF HIS HANDLED THROUGH A SUBPOENA
THE ATTORNEY THEN CAN BE SCENE AS FIGHTING THE SUBPOENA THROUGH A MOTION TO QUASH
AND FULFILLING THEIR DUTIES TO THEIR CLIENT. ADDITIONALLY IT WILL CREATE REAL
CONFUSION FOR THE BAR. JUSTICE PATTERSON: YOU CAN SAY THAT ABOUT
ANYTHING PRODUCED IN STORY. YOU CAN SAY IF THE DISCOVERY RULE REQUIRES THE ATTORNEY
TO BE SEEN AS VOLUNTARILY TURNING EAR SOMETHING AND THEREFORE, WE COULD AND
ROW GAIT THAT RULE THAT WOULD APPLY ACROSS THE BOARD TO ANYTHING THAT IS SUBJECT
TO THE RULE AND HAS TO BE TURNED OVER DEAN KEEN THAT'S NOT WHAT I'M SAYING AT YOU
MEAN. THINGS THAT ARE GO TO BE USED AT TRIAL DISCOVERY IS MERELY ACCELERATING THAT
PROCEEDS. JUSTICE PATTERSON: DO YOU THINK A CLIENT IN GENERAL, IF
A CLIENT'S OBJECTION TO THE HAVING THE LAWYER DO SOMETHING WITHOUT KICKING AND
SCREAMING AND FIGHTING IT, DO YOU THINK IT REALLY MAKES A DEFERENCE THAT ULTIMATELY
THOSE DOCUMENTS ARE DOING TO BE PRODUCED AT TRIAL. BRIAN P. KEENAN: IF
THEY'RE INCULPATORY DOCUMENTS THEY WOULDN'T BE PRODUCED AT TRIAL AND DEFENDANT
WOULDN'T BE TURNING THEM OVER. JUSTICE PATTERSON: SO IT'S A CONCERN WHAT THE
DEFENDANT'S IMPRESSION MIGHT BE IF THIS IS COMPLIANCE WITH THE DISCOVERY RULE AND
INCULPATORY DOCUMENTS ARE INCLUDE IN ADDITION THAT. BRIAN P. KEENAN:
WELL COMPLIANCE WITH THE DISCOVERY RULE WOULD WOULD PRE SUPPOSE THAT THE DEFENSE
IS GOING TO USE THEM AT TRIAL UNDERSTANDING DISCOVERY STANDS IN WILLIAMS AND SO
FORTH. JUSTICE PATTERSON: ARE YOU SAYING THAT THE DEFENSE COUNSEL
GENERALLY HAVE INTERPRETED THE DISCOVERY RULE EVEN THOUGH THERE'S NO LANGUAGE
LIMITING IT TO INCULPATORY OR DOCUMENTS PRODUCED AT TRIAL TO BE LITED THAT.
BRIAN P. KEENAN: IT'S NOT JUST DEFENSE COUNSEL. ANOTHER CASE SAYS THAT AS I QUOTED
EARLIER. JUSTICE WAINER APTER: AND STILL JUST RUN 23450 A DEFENSE
COUNSEL'S INDEPENDENT OBLIGATION BOTH STATUTORY AND UNDER THE RULES OF
PROFESSIONAL CONDUCT TO TURN OVER PHYSICAL EVIDENCE OF A CRIME. BRIAN P.
KEENAN: RIGHT. JUSTICE WAINER APTER: EVEN IF THE CLIENT DOESN'T WANT THEM
TO. WHAT IS THE PROBLEM DURING A FIRST MEETING AS THE ATTORNEY GENERAL'S OFFICE
SUGGESTED DEFENSE COUNSEL AND DEFENDANT JUST SO YOU KNOW IF I COME INTO POSITION
IF OF ANY PHYSICAL EVIDENCE OF THE I'M PROGRESS TO HAVE TO TURN IT HE UNDER ETHICAL
RUIZ UNDER DISCOVERY RULES UNDER THE RULES OF PROFESSIONAL CONDUCT I JUST WANT
YOU TO KNOW THAT UP FRONT. BRIAN P. KEENAN: YES I'M SURE THE CLIENT WOULD
NOT LOOK FAVORABLY UPON THAT IN THAT SITUATION. JUSTICE PATTERSON:
THAT'S WHAT YOU SAID. BRIAN P. KEENAN: THAN I DON'T THINK THE CLIENT WOULD
LOOK FAVORABLY UNDER AFFIRMATIVELY ACTION BY DEFENSE COUNSEL TO TURN OVER INCULPATORY
INFORMATION. THERE'S NO DOUBT ABOUT IT. IF THIS IS INCORPORATING THE DISCOVERY
RULES WE'LL ALSO RUN INTO PROBLEMS BETWEEN COUNSEL READ \THAT GO\{^ING}THAT OVERLY
BROAD AND THIS AFFIRMATIVELY OBLIGATION TO TURN OVER THIS INFORMATION AND THAT
WOULD CREATE A QUIET A DIFFERENT PERCEPTION BY THE CLIENT. AND JUST -- AS TO
THE COMMENT ABOUT THE DISCOVERY PROCESS BEING A SEARCH FOR THE TRUTH. THAT
MAY BE TRUE WITH THE STATE'S OBLIGATION IN DISCOVERY BUT DEFENDANTS OBLIGATION IN
DISCOVERY IS FUNDAMENTALLY DIFFERENT. AND WE HAVE NUMEROUS CASES YOU KNOW
THROUGHOUT THE PAST 50 YEARS SAYING THAT THE PROSECUTOR CANNOT USE DISCOVERY
PROCESS TO BUILD ITS CASE AGAINST DEFENDANT. THAT'S EXACTLY WHAT THEY'RE TRYING
TO DO HERE. CHIEF JUSTICE RABNER: THAT YOU COUNSEL. THANK YOU TO
ALL COUNSEL. WE'LL TAKE THE MATTER UNDER ADVICEMENT.