Why Not Summary Judgment In Some Criminal Cases?


Sometimes the rules of criminal procedure make no sense. Why, for example, aren't defendants free to move for summary judgment?

There are occasions in which the criminal justice system is misused. A complaining witness can bring what is essentially a civil complaint to prosecutors and huff and puff about how they've been defrauded. The prosecution swears out a warrant. The defendant is arrested and then what?

Why plea negotiations, what else? The vast majority of criminal cases are resolved by way of a plea. A defendant and his or her counsel evaluate the strength of the state's case and the merits of potential defenses. After assessing the respective risks, the parties try to reach a compromise.

But how, exactly, are you to evaluate the strength of the state's case when you can conduct no discovery? On the civil side a lawyer telling his client to pay enormous sums of money without so much as a deposition of the plaintiff might well face a malpractice claim. Why do we expect lawyers to advise clients to give up their freedom with less information?

The lack of discovery rights in criminal cases puts the lie to our commitment to the presumption of innocence. Defend an insurance company dollar, and take all the discovery your client can afford. Defend a person's life and liberty and the rules resemble a drunk's game of Russian Roulette.

I am mindful that in a criminal case a defendant has a right to remain silent. I am also aware that the state has the burden of proof. Hence, silent inertia is often a person's best defense when the state cannot make it case. Chaos is sometimes the best defense, even of a person who is factually innocent.

In cases where a defendant wants simply to hold the state to its burden of proof, I say the system works well enough as is. But I would like to see a regulatory regime in which criminal defendants had the option to waive the right to remain silent in exchange for civil discovery rights.

In such a case, a defendant could submit to discovery, as would the state's witnesses. Why would a defendant agree to this, thus depriving him of the element of surprise at trial? Because under this proposal a defendant would acquire the right to file a summary judgment motion after the conclusion of discovery. In other words, the court system would not be held hostage to an improvident prosecution.

I am involved in a white collar case just now. I have reviewed documents in my client's possession. I have talked to witnesses. I understand my defense and I am confident about the outcome should we have to try the case. The state seems less confident.

During a recent pretrial, the state asked for documents we have. I declined to produce them. But aren't I obliged to produce the documents if I intend to offer them at trial? The Practice Book says so. In this case I have no intention of offering any documents. My intention is to win the case on a motion for judgment of acquittal at the close of the state's case. As near as I can tell the state's case is a twisted farce by a complaining witness who far better deserves to be a defendant than does my client.

I would be willing to recommend that the client have the right to conduct civil discovery as to my client, including a deposition, but only so long as I am able when discovery is done to move for summary judgment. A confident state interested in the pursuit of justice would submit to such a process. In the absence of such an agreement, I see little value in playing nice and opening my client's files and thoughts to the view of the state.

This is an awkward standoff that has little to do with justice, and everything to do with the strategy and tactics of litigation. Why not give defendants the incentive to challenge weak cases early, rather than having to endure the humiliation of a trial?

Courtesy of the Connecticut Law Tribune.

Comments: (3)

  • What a brillant idea!
    What a brillant idea!
    Posted on April 24, 2009 at 4:24 pm by Anonymous
  • While I can see a lot of pros in your plan, allow ...
    While I can see a lot of pros in your plan, allow me to just play devil's advocate with the side of the coin that doesn't involve a greedy white collar "victim." What about the victim of a random sexual assault? It would seem that public policy would have something to say about subjecting that person to "civil" discovery, especially in a case where he or she didn't necessarily choose to be part of the process. Even as someone who generally holds the Sixth Amendment above all else, something about that doesn't sit well with me on first glance....
    Posted on April 27, 2009 at 5:03 pm by Anonymous
  • While I can see a lot of pros in your plan, allow ...
    While I can see a lot of pros in your plan, allow me to just play devil's advocate with the side of the coin that doesn't involve a greedy white collar "victim." What about the victim of a random sexual assault? It would seem that public policy would have something to say about subjecting that person to "civil" discovery, especially in a case where he or she didn't necessarily choose to be part of the process. Even as someone who generally holds the Sixth Amendment above all else, something about that doesn't sit well with me on first glance....
    Posted on April 27, 2009 at 5:04 pm by Anonymous

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