I read an article today by Ronald Machen, Jr., the U.S. Attorney for D.C. in the 12/11/11 Washington Post entitled “A Recipe for Making Witness Intimidation Worse“.  Machen chides the defense bar’s advocacy for a rule change which will provide criminal defendants with early access to the identities of those who will be testifying against them in court.  Machen sees nothing wrong with providing this information for the first time at trial  and disagrees with defense attorneys who claim that this leaves no time for the defense to investigate or use that information. 

And why is that?  Because “[t]he law already requires the government to turn over in a timely fashion information that is favorable to the defendant.”  Huh?  Now, just so it’s clear, Machen believes that someone who has been charged by the prosecution is supposed to trust the same prosecutor seeking a conviction to turn over favorable information in a timely fashion?  Well, tell that to the Duke Lacrosse team.  In addition, as someone who has spent the past 30 years defending people charged with crimes in State and Federal Courts, I can tell you that rarely will the prosecution and defense will agree on what information is “favorable to the defendant.”   Oh, if there is video showing someone else committing the crime, it will probably be produced.  But what if the eyewitness wasn’t wearing her glasses when she says she saw the defendant commit the crime of which he is accused?  A lot of prosecutors will keep that little gem to themselves.  Mr. Machen acknowledges that there have been cases where critical information has been withheld from the defense by the prosecution, but says that it rarely happens.  I’ll bet that was great comfort to those defendants who were wrongly convicted on the basis of incomplete evidence and information. 

Machen also believes that last minute information provided to a person charged with a crime is appropriate because ”our criminal justice system is not designed to maximize defendants’ chances of acquittal.  Our system is designed to protect the innocent and punish the guilty.”  Machen must have missed that Criminal Procedure class where it was taught that people charged with committing crimes are presumed innocent.  Imagine being accused by someone of committing a criminal offense and when your attorney tries to find out who made the accusation and investigate how this person could say such a thing.  Machen believes that providing this information right before trial is fair.  Why?  Because he really believes that a person wouldn’t be charged with a crime unless he was really guilty.  But there is a problem.  A person charged with a crime isn’t guilty until he is found guilty after a trial.  In fact, he’s presumed innocent until he’s found guilty. 

When they change our justice system so that those charged with crimes are guilty until proven innocent (after all, the police wouldn’t charge someone with committing a crime unless he was guilty, right Mr. Machen?), then go ahead and withhold critical defense information like identify of the witnesses.  But until then, if defendants are entitled to fair trials, then provide defense counsel with all of the information in time for them to prepare an effective defense.