Don't Give up on Rough Notes!!

January 16, 2012

1351643_clip_notes.jpgDefense attorneys are not used to seeing the investigating officers' rough notes, and in many cases no one asks to see them. In an 8-1 decision this past week, however, the U.S. Supreme Court underlined the importance that rough notes could carry in a trial, giving renewed life to Brady and Giglio. Message to defense attorneys: Don't Give Up On Rough Notes!!

In Smith v. Cain, several inherent problems in current exculpatory/impeachment law became obvious:

  • Materiality Determination: Under current law, the prosecutor is charged with determining whether a document or information is "material" to the defense and thus should be produced. Despite glaring contradictions from a key witness, the prosecutor in Smith determined the earlier statement was not "material" and thus did not disclose it to the defense.

  • Reliability of Typed Reports: The officer's typed report inadequately characterized the witness' statements; plus, the typed report minimized the scope of statements noted in the officer's own rough notes from the interview. Thus, a prosecutor's review of typed reports for exculpatory/impeachment information still begs the question of whether exculpatory/impeachment information truly exists.

Until we revisit these problems in a meaningful way through rule and/or court intervention, it is likely that exculpatory and/or impeachment information will continue to lay hidden from the defense.

In the Smith case, the defendant was convicted of killing five people during an armed robbery. At trial, a single witness positively identified Smith as one of the killers, stating that "he had been face to face with Smith" during the robbery. No other witnesses and no physical evidence implicated Smith in the crime. The in-court identification was critical to the defendant's conviction.

After conviction, however, Smith sought and obtained the investigating officer's file, including the officer's rough notes of interviews. The notes described witness interview statements that differed starkly from his trial testimony. When interviewed on the night of the murder, the witness said he could not give any description of any of the assailants, other than they were black males. And in a second interview 5 days later, the notes indicated the witness "could not ID anyone because [he] couldn't see faces" and "would not know them if [he] saw them."

As noted, several issues bear noting:

The prosecutor's unilateral determination of "materiality":

Despite the difference between the witness' "face-to-face" identification at trial and the exculpatory and impeaching "couldn't see faces" comment recorded in the officer's notes, the prosecutor attempted to justify the non-production of notes on the basis that any such difference was not "material" to the defense. Because the witness subsequently offered plausible explanations for the witness' initial inability to offer a facial description, the prosecutor deemed the initial exculpatory statements "immaterial" and thus did not produce them to the defense. During argument before the court, several Justices openly questioned how inconsistent statements by such an important eyewitness, regardless of later plausible explanations, could "not" be "material." The court flatly rejected the prosecutor's argument, emphasizing production of the notes was particularly necessary given the witness' importance in linking the defendant to the crime.

The reliability of an officer's typed report:

It is apparent the investigator's typed report was not descriptive of the witness' initial detailed comments concerning identification. Whereas the officer's rough notes plainly recorded that the witness "could not ID anyone because [he] couldn't see faces," the typed report merely recorded that the witness "could not identify any of the perpetrators of the murder." Without knowing more, one could conclude from the typed report that the witness could not identify the assailants by name, though he could by face.

The inherent problems in the application of current Brady/Giglio law continue to plague our justice system. Without knowing the defendant's case strategy, a prosecutor is frequently unable to make an appropriate informed materiality determination. Thus, in any case in which a witness carries substantial import to the government's case, courts and attorneys should heed the implications of the Smith case in analyzing the need for officer rough notes.