15.2 - III. Preparation For Cross-Examination—Rosario Material

• Jurisdiction: New York

IIi. PREPARATION FOR CROSS-EXAMINATION—ROSARIO MATERIAL

While the defense lawyer must identify, as far as possible, and request all Brady material, the types of material covered under Rosario²⁰⁹⁵ are not required to be disclosed by the prosecution until the time of trial. The Rosario rule requires the prosecution to disclose the pretrial statement or testimony of any witness called by the People on their direct case that relates to the subject matter of the witness’s direct testimony. At trial, the turnover must occur automatically just prior to the prosecutor’s opening statement. At a pretrial hearing, Rosario material must be requested.²⁰⁹⁶

The word “testimony” has the broadest possible meaning and encompasses grand jury testimony, written statements, prosecutor’s notes containing witness statements,²⁰⁹⁷ police investigative notes and reports containing witness statements²⁰⁹⁸ and tape recordings and statements made by witnesses to private persons that are in the possession of the People.²⁰⁹⁹ As noted, prosecutors are obligated to disclose only those witness statements that relate to the subject matter of the witness’s direct testimony and that are within their possession or control.²¹⁰⁰ Statements in the possession of parole authorities are not considered as being in the prosecutor’s possession for Rosario purposes.²¹⁰¹

A prosecutor’s failure to provide Rosario material to defense counsel may constitute reversible error²¹⁰² if the defendant demonstrates “a reasonable possibility that the non-disclosure materially contributed to the result of the trial or other proceeding.” Rosario has not been violated where a duplicatively equivalent has been provided, or the requested material has no bearing on the crime charged.²¹⁰³ Reversal for a Rosario violation where appropriate is limited to the counts to which the withheld pretrial statements relate.²¹⁰⁴ A prosecutor’s failure to disclose Rosario at a pretrial
hearing does not constitute reversible error if defense counsel did not request it.²¹⁰⁵

Where counsel can articulate a factual basis for believing that the prosecutor is failing to disclose Rosario material, or where the prosecution admits the existence of a statement but contends that it does not relate to a witness’s direct testimony, counsel should request the court to conduct an in camera inspection of the prosecutor’s file. Concerning articulated basis or concession, the representation of the prosecutor generally ought to suffice to determine the threshold issue of whether any prior statements of a witness exist.²¹⁰⁶ Where the prosecutor has failed to preserve Rosario material (e.g., it has been lost or stolen), defense counsel should request that the court impose an appropriate sanction (e.g., exclude the witness’s testimony or instruct the jury that it can draw an adverse inference from the testimony because of the failure to produce the prior statement).²¹⁰⁷ Trial courts have considerable discretion in determining what the appropriate sanction will be. The factors identified in determining the nature of the sanction include the proof available at trial, the significance of the missing material and whether its loss was intentional or inadvertent.²¹⁰⁸

In preparing for cross-examination in a criminal case, it is essential to know what type of documentation and data may exist, to ask for it specifically and to subpoena it, if necessary, if permitted to do so by law.²¹⁰⁹

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Notes:

^[2095] . People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, cert. denied, 368 U.S. 866 (1961).

^[2096] . CPL §§ 240.44, 240.45(1)(a). The defense must turn over the prior statements of its witnesses prior to presentation of its case. CPL § 240.45(2)(a); see People v. Damon, 24 N.Y.2d 256, 299 N.Y.S.2d 830 (1969).

^[2097] . People v. Kelly, 88 N.Y.2d 248, 252, 644 N.Y.S.2d 475 (1996); People v. Tissois, 72 N.Y.2d 75, 531 N.Y.S.2d 228(1988); People v. Reedy, 70 N.Y.2d 826, 523 N.Y.S.2d 438 (1987) (victim’s personal written account of attack, which was not in prosecutor’s possession, is not discoverable under Rosario); People v. Hawa, 15 A.D.2d 740, 224 N.Y.S.2d 156 (1st Dep’t 1962), aff’d, 13 N.Y.2d 718, 241 N.Y.S.2d 847 (1963); People v. Leary, 45 A.D.2d 1036, 358 N.Y.S.2d 34 (2d Dep’t 1974); People v. Flores, 57 A.D.2d 783, 394 N.Y.S.2d 670 (1st Dep’t 1977); Goldberg v. United...