In New York State during a criminal trial or a criminal pretrial hearing
the prosecution is required to give to the defense any prior written or
recorded statements of a witness who the prosecution will call to testify
at trial or during a hearing. this is known as the Rosario Rule pursuant to
People v Rosario, 9 NY 2d 286 and CPL 240.44, 240.45.
Reason for the Rosario Rule
A prior witness statement is useful during cross examination. Many times
prior statements will contain omissions, contrasts or contradictions that
can but used by the
criminal defense attorney to attack the prosecutions witnesses. At the very least prior
inconsistent statements can be used to attack the witnesses credibility.
Types of Rosario Written Statements
1. Police Officer's notes
2. Notes made by the prosecution during the interview of a witness
3. Affidavits in support of search warrants
4. Videotaped interviews
5. Tape recordings, including voicemail messages
6. Arrest reports
7. Police "blotters"
8. 911 tapes
9. Grand Jury testimony
10. Undercover officer's notes
It is important for the criminal defense attorney to review these statements
and use them to attack the prosecutions witnesses. The top criminal defense
attorneys pay very close attention to prior statements since it is common
that stories may change over time and it can give insight into the prosecutions
strategy of the case.
The criminal defense attorney also has an obligation to turn over defense
witness's prior recorded statements. Recorded statements of the defendant
do not and must not be disclosed. A criminal defense attorney should not
ask a witness to write any notes or take notes to limit the information
that may need to be disclosed to the prosecution.
The Rosario rule in an important tool in every criminal case including
DWI trials and even traffic matters.