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Recent problem cases regarding Discovery

wotsits
(@wotsits)
Active Member

There have been a number of cases recently that have collapsed due to issues around Discovery (I'm not just talking about the several recent rape cases) and failure to turn over exculpatory evidence to the defense.

Rather than dishonesty on the part of the police/prosecutor, what I suspect is happening is due to the ever exponentially increasing volume of digital evidence coming in and the ever decreasing amount of available resources, that things are getting overlooked more easily, together with perhaps a tendency among investigators to only look for evidence that works against the defendant.

If you look at the cases that have collapsed, it is typically a few emails or photos out of thousands (the proverbial needle in the haystack) that have got the defendant off the hook.

I'm sure the defense will be ever more vigilant now to challenge discovery.

So what needs to be done differently from the side of the forensics/police/prosecutors?

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Topic starter Posted : 02/02/2018 1:58 am
pbeardmore
(@pbeardmore)
Active Member

I'm not as up to speed on all of these cases as I should be and it's always tricky getting stuff via the media.

http//www.bbc.co.uk/news/uk-42892530

Re the amount of data and this case, is it not the case that the disclosure procedure is the issue? The data re the phone would have been on one DVD and, if supplied promptly, would have enabled the defence to review the data much, much earlier rather than on day 2 of the trial.

If we are talking about the failure of the police to review the data themselves, then this is not a disclosure issue as, if this established the "case for the defence " etc, then no prosecution would have been brought in the first place and, therefoere, no disclosure issue.

I think the later issue is actually more of a challenge. I can see how easy it is to find some evidence within a case that points towards guilt and, based on that evidence, send a report to CPS. The question is, what is the role/duty of the Police re going through ALL of the remaining digital evidence to establish if there is any other evidence that undermines the prosecution.

Interesting times and very much worthy of discussion

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Posted : 02/02/2018 10:13 am
jaclaz
(@jaclaz)
Community Legend

Set aside the digital evidence for one moment

It later emerged the woman was already pregnant when she entered the country in 2016, when she was examined three days after the arrest of Ms Bosoanca.

At London's Wood Green Crown Court, Judge Perrins said the defence had requested medical evidence about the pregnancy as long ago as August 2017 and had been repeatedly told that no such medical evidence existed.

This repeated failure to properly disclose the police doctor's report was, said the judge, "one of the more serious failings identified in this case and requires further explanation".

It is difficult to attribute this to either incompetence or too heavy work due to the sheer mass of data, and I presume the people involved will have a hard time to explain why exactly such a vital (yet plain, simple) piece of data was withheld from defence.

As a matter of fact this single piece of evidence undermined the complainant's claims and thus the whole case, it is not like someone incorrectly interpreted the results of the Police doctor visit or failed to correctly link it to the dates (which would be a unfortunate but understandable "mistake"), here defence has been told for months and in several occasion that this report did not exist at all, if - and it is really hard to believe this - it was a mistake in good faith, like you know, a missing indexing of the case papers or similar, it shows a superficiality and carelessness on the part of either Police or Prosecution that is preoccupying.

The consequences of this failure in managing the case are serious, this person - besides the problems with the birth of her child - was held 13 months in jail.

I mean it is not like a Civil Case, where possible damages for incorrect or plainly wrong accusations/procedures revolve at the most around some money, here we are talking of depriving someone of freedom for more than one year, it is something that simply shouldn't happen.

jaclaz

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Posted : 02/02/2018 3:45 pm
Merriora
(@merriora)
Junior Member

Re the amount of data and this case, is it not the case that the disclosure procedure is the issue? The data re the phone would have been on one DVD and, if supplied promptly, would have enabled the defence to review the data much, much earlier rather than on day 2 of the trial.

If we are talking about the failure of the police to review the data themselves, then this is not a disclosure issue as, if this established the "case for the defence " etc, then no prosecution would have been brought in the first place and, therefoere, no disclosure issue.

I think the later issue is actually more of a challenge. I can see how easy it is to find some evidence within a case that points towards guilt and, based on that evidence, send a report to CPS. The question is, what is the role/duty of the Police re going through ALL of the remaining digital evidence to establish if there is any other evidence that undermines the prosecution.

Interesting times and very much worthy of discussion

This is an interesting discussion and one that I seem to be having often given that we are often provided conflicting information and advice from Crown and Defense lawyers.

During a National Webinar, we observed a leading defense lawyer discuss the need to only present information relevant to the case and to ensure the privacy of the suspect and those that they are associated with him. Lawyers view was that everything shouldn't be disclosed within the report. Within a few minutes, he was then stating that police often fail to include conversations or events that although un-related, show the suspect as possibly having a demeanor or attitude that would not indicate that he is the type of person to commit a particular crime.

What we realized is that Defense wants whatever level of information that puts their client in the best light.

This isn't a big surprise, but it does cause confusion within our industry when we are unclear of what to include and what to leave out, especially when we consider the privacy of friends and family on electronic devices.

The analogy we often discuss is
If we seized a 20x20 sq ft storage room filled with banker boxes to the roof with letters, videos, and pictures, how would that be processed?

If we found enough evidence to charge a suspect after spending 2 months reading every page, but only getting through 10% of the room, would we stop there and proceed with charges or would we continue to read every letter in that room, potentially taking years to read?

Given the amount of information on a cellphone, I don't believe its possible to always go through every record for every file on every device. Backlogs are bad enough and I haven't found any lawyers that are happy when they are going through a 20,000 page report.

As far as disclosure, I look at both situations the same. If defense believes that something exists to exonerate his client, then they are free to go over all the documents in the room or be provided with the full forensic images of the cellphone or computer HDD.

ReplyQuote
Posted : 02/02/2018 11:29 pm
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