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November 8, 2018

Suit Alleges Manhattan DA Is Hiding List of Police Officers With Compromised Credibility

By Michael H. Joseph

The Manhattan District Attorney’s Office is keeping a list of police officers who have credibility problems as witnesses on the stand but is refusing to make it public, an attorney alleges in a challenge to the DA’s refusal to provide the list under the Freedom of Information Law (FOIL). Criminal defense attorneys are absolutely entitle to discover when the main witness in a criminal action has a credibility issue. This is a well established right under the confrontation clause because when a person is charged with a crime, they have the right to confront their accuser.

In a suit filed in Manhattan Supreme Court, a New York City criminal defense attorney  said that he has personal knowledge of such a list from his previous stint as a prosecutor in Manhattan DA’s office and from statements that a prosecutor made during criminal proceedings for one of defense attorney’s previous clients.   According to the suit then, it was stated that the Manhattan DA’s office keeps a list of officers who have been given findings of “adverse credibility”: officers “that have been found to testify falsely.”

In this case the Defense Attorney said that during his time as a prosecutor, his bureau chief let him know on two separate occasions when a police witness might have credibility problems. In one case, the Defense Attorney was told that a police witness was under investigation for a ticket-fixing scandal; in another, he was told that a police witness for a driving-under-the-influence case propositioned an arrestee.

These types of disclosures were colloquially referred to as the “naughty list”. Obviously a jury considering the guilty or innocence of a suspect, should know that the officer who is often the primary witness, has previously been caught lying.

The Defense Attorney filed a FOIL request for the Manhattan DA’s list of officers with adverse credibility findings but Assistant District Attorney told him that no such list exists but that it does maintain information on adverse credibility findings.

In an Article 78 petition challenging the Manhattan DA’s denial of the FOIL request, it is argued that adverse credibility rulings are made in open court and thus have already been publicly disclosed.  Also that the information was not gathered in preparation for trial, which refutes the DA’s argument that it constitutes a work product that is exempt from FOIL; and that the information has already been disclosed to a third party, which waives privilege.

A spokesman for the Manhattan DA’s office, said the office will review the petition but did not comment further. Unlike a finding that an officer committed perjury, an “adverse credibility” ruling is not a criminal offense, Police Commissioner explained in an op-ed for the New York Daily News. In the op-ed, Police Commissioner also explains that, in 2014, his predecessor told federal and state prosecutors’ offices in the city to inform the NYPD when there has been an adverse credibility finding against an officer.

Last year, the state’s Justice Task Force, announced a new rule for trial judges to inform prosecutors of their responsibilities to disclose exculpatory material to the defense, which took effect this year.  Our Westchester criminal defense lawyers continue to push for greater accountability and to make sure that officers who have committed perjury in the past are not allowed to rail road our clients.

 
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