Another Voice: Without details of accusations, the defense is operating in the dark - The Buffalo News
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Another Voice: Without details of accusations, the defense is operating in the dark

By James Auricchio

Erie County District Attorney Frank Sedita III recently submitted an op-ed regarding his concerns about efforts to reform discovery laws in New York. While I respect his motive as well as his perspective, I believe his view is limited by the role he plays in the system, and is ultimately flawed.

Our nation was created in reaction to tyranny, founded upon the protection of individual liberty. As a result, our law places a burden upon the government before it can deprive an individual of his or her liberty. This burden is generally defined as due process.

Due process is a fundamental right of any person accused of a crime and it must be protected before justice can be achieved in any case. It is the foundation of justice.

Due process is fundamental fairness, afforded to every person accused of a crime. It affords each of us the right to confront those who accuse us. It mandates that an accused is provided with a copy of any statement made against him for the purpose of commencing a criminal action.

Withholding the substance of the evidence against a person deprives him of the ability to make an intelligent choice regarding his defense. It requires the defendant to make crucial decisions regarding his case without actual knowledge of the allegations against him.

The vast majority of criminal cases are resolved long before a trial, the moment when Sedita appears to suggest a defendant should be entitled to statements by witnesses. Under his interpretation of his obligations, most defendants never see the substance of the allegations against them, leaving them to decide how to proceed in their case based not upon anything as tangible as evidence, but fear and uncertainty.

The reform efforts will merely confirm the mandates of our Constitution and the protections it provides. These rights require protection from policies employed by some prosecutors that would seek to hide evidence to gain an advantage at the expense of fundamental fairness. The reforms Sedita opposes would continue to preserve the right of a prosecutor to seek a protective order from a judge where a credible threat to witness safety exists.

As a former state and federal prosecutor, I must respectfully disagree with Sedita’s claim that the concealment of evidence empowers justice. In fact, it is my experience that it subverts justice. The disclosure of evidence to the defense allows for a level of scrutiny which, no matter how objective the prosecutor, would otherwise not exist.

Justice in our system is not the result of the efforts of one party. It is the result of the divergent efforts and the collective ambition of all. Limiting access to evidence to just one party in the system will only impede justice, not protect it.

James Auricchio, of West Seneca, is a criminal defense attorney. He is a former assistant U.S. attorney and former assistant district attorney.

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