6.5 - C. Rosario Ii

• Jurisdiction: New York

C. Rosario II

Prosecutorial offices that have introduced computer/e-mail technology into their operations, especially with respect to witness interview reports, must be aware that the application of Rosario does not depend on the manner in which the interview is recorded. Drafts and redrafts of reports may pose a Rosario problem. Some guidance may be gleaned from between the lines of an Appellate Division, First Department, opinion. It is here quoted verbatim to avoid interpretive error in its transcription:

The court properly declined to direct the People to produce a computer diskette upon which a People’s witness had saved a report, because defendant had not been provided with the identical information (and not merely the duplicative equivalent) in printed, and therefore readable, form. The court correctly held that by providing a hard copy printed from the corresponding file, the People had satisfied their [Rosario] obligation. . . . Defendant’s present contention that disclosure of the diskette was required so that he could attempt to retrieve any hypothetical prior versions of the report or deleted material, possibly through the use of file-recovery software, is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would reject it. We need not decide under what circumstances, if any, disclosure of computer storage media might be required notwithstanding disclosure of printed documents. On the present record, including the witness’s testimony on the subject, we find no basis, other than speculation, to suspect that analysis of the diskette might have revealed prior versions or deleted material. ¹¹⁸⁵

Amazingly, in 1985, the court held that harmless error analysis was inapplicable to trials occurring after its 1961 Rosario decision.¹¹⁸⁶ In a 1986 decision, the court said that over the years it had “refined” the Rosario rule to be one of per se reversal where undisclosed, nonduplicative, equivalent prior statements were involved. Where there was a delay, but not a complete failure, to turn over Rosario statements, a reviewing court was to ascertain whether the defendant was substantially prejudiced by the delay.¹¹⁸⁷

Good faith efforts on the part of the People to locate and turn over all Rosario material did not constitute an exception to the per se reversal rule.¹¹⁸⁸ In a later decision, the Court of Appeals added a bolstering rationale. It was of the firm opinion that a reviewing court was incapable...