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Educational Mentoring Service (GEMS)

A Kings Criminal Lawyer said that, the defendant has issued a subpoena to a Broadcasting Companies for certain outtakes of a TV show regarding the instant sex crimes. The outtakes are alleged to contain statements of four witnesses that will be called by the government on their direct case. The Broadcasting Companies has moved to quash the subpoena. The other defendant has issued a subpoena to the Production Company, for all materials written or recorded of any interview with the complainant the latter has moved to quash the subpoena.

A Kings Sex Crime Lawyer said that, during the year 1993, the Broadcasting Companies was granted permission by the New York City Police Department to observe and film the workings of the New York City Police Department. It was preparing for a reality show about the New York City Police Department ultimately titled “NYPD 24/7.” Among the numerous stories that the Broadcasting Company was following was the homicide of one of the victims in this case. It followed and filmed the investigators in this case while the police tried to solve the sex crime. A break came when a person gave certain information to the police. Additionally, the police were able to connect the murder to an alleged rape/kidnapping. As a result of all the information gathered, the defendant was arrested.

A Kings Prostitution Lawyer said that, on July 13, 2004, an episode of NYPD 24/7 was aired containing taped interviews with the detectives in charge, the family of the victim and the informant. The defendant wishes to have all the unused film from the program to see if any of the witnesses will, while testifying for the People, contradict anything that the witness stated on the unused film. He seeks the outtakes for possible impeachment material. The defendant can neither identify any inconsistent statement nor identify a single piece of outtake that he will introduce into evidence during the trial or other proceeding.

A Kings Criminal Lawyer said that, the Broadcasting Company claims that the outtakes are covered as non-confidential privileged material under Civil Rights Law § 79-h. ABC states that the defendant has failed to establish the three-prong test outlined by the statute and therefore cannot subpoena the material. The defendant admits that he cannot prove the three requirements of Civil Rights Law § 79-h, but alleges that Civil Rights Law § 79-h violates a number of his constitutional rights. He argues that Civil Rights Law § 79-h violates the Constitution to the degree that it prohibits him from obtaining material to which he is constitutionally entitled. As a subsidiary issue, the defendant alleges that the Broadcasting Company was an agent of law enforcement and thus, not covered by the media privilege created in Civil Rights Law § 79-h.

To Be Cont…

Initially, the court finds that the Broadcasting Company did not supply any information regarding the homicide and rape/kidnapping to the police. It only filmed what occurred during the investigation and interviewed certain persons. It has not supplied law enforcement agents with any of the tapes that were not aired on the program and would claim the media privilege should the government request the outtakes.

A Kings Prostitution Lawyer said that, an independent production company that produces documentaries used by various cable television stations. The production company decided that it would produce a documentary about sexual exploitation of female minors. As part of the potential documentary, it investigated minor prostitutes and females who enrolled in the Educational Mentoring Service (GEMS). GEMS is a program which attempts to mainstream former prostitutes. The production company went to GEMS and interviewed various females who were attempting to escape the life of prostitution. Each person interviewed was promised that their interview would not be disclosed without the consent of the interviewee. No documentary has yet been produced or aired.

A Kings Patronizing Prostitution Lawyer said that, the defendant seeks the tape of the interview for the potential use as impeachment material should it testify contrary to any of her statements made to the production company. The production company moves to quash the subpoena on the ground of the privilege contained in Civil Rights Law § 79-h. STP claims that the material is covered by the absolute privilege in Civil Rights Law § 79-h for confidential matters. The defendant admits that he cannot establish the three-prong test contained in Civil Rights Law § 79-h for non-confidential matters let alone any test for confidential material, but alleges that Civil Rights Law § 79-h violates his constitutional rights. As a subsidiary issue, the defendant alleges that the production company is not a covered entity under Civil Rights Law § 79-h.

The issue in this case is whether the Broadcasting and Production Companies are covered by Civil Rights Law § 79-h privilege.

The court finds, as a matter of fact, that the broadcasting company is not a governmental agent and is covered by the Civil Rights Law § 79-h privilege. The court finds that the production company and the news caster are “news agency” and “professional journalist,” respectively, within Civil Rights Law § 79-h (a) (3) and (a) (6). Further, the court finds that the subject matter constitutes “news” as defined in Civil Rights Law § 79-h (a) (8).
Both defendants allege that Civil Rights Law § 79-h is unconstitutional because it deprives them of their constitutional rights. Neither defendant has been able to identify the exact constitutional right that the statute impinges. Both defendants make the generalized claim that the statute violates due process of law, the right to confront or cross-examine witnesses or the Compulsory Process Clause of the Constitution.

To Be Cont…

Because the court found that the defendants did not have a constitutional right to the material, the court did not decide the constitutionality of the statute.

It is important to recognize that neither defendant alleges that the subpoenaed documents contain any evidence that they seek to introduce during any of the proceedings. The only argument made is that they wish to examine the material to see if it contains any inconsistent statements. In effect, although couched in broader terms, they argue that they have a constitutional right to discover material in the hands of a nongovernmental nonparty civilian witness.3 Indeed, the defendants do not know what is contained in the materials and do not know whether there is evidence in existence. They are involved in the proverbial “fishing expedition.”

There is no federal or state constitutional or common-law right to discovery. The New York Legislature has taken into account values “premised on constitutional rights and fundamental fairness,” and adopted article 240 of the Criminal Procedure Law which, by specifying exactly what is discoverable prior to a criminal trial, essentially excludes from discovery items not mentioned and situations not enumerated. Since there is no constitutional right to discovery in criminal cases, courts cannot grant discovery where no statutory basis exists. Thus, discovery in criminal proceedings is entirely governed by statute.

As indicated above, there is no constitutional right to discover the existence of potential evidence or for that matter potential impeachment material. Therefore, to the degree that the defendants’ claims are predicated on an alleged constitutional right to discovery, the claim lacks merit. It is also important to note that CPL article 240 does not contain any provision for discovery from persons who are not governmental agents. As such, the court lacks authority to grant such a right.

The Sixth Amendment to the United States Constitution, as is relevant to this discussion, provides “in all criminal prosecutions, the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor.” Since 1807, the word “witness” for the purposes of the Compulsory Process Clause has been held to include documents. Thus, the word witness in the Sixth Amendment means “a giver of evidence “or to “bear testimony.” The Compulsory Process Clause is applicable to the states through the Due Process Clause of the Fourteenth Amendment. However, the Compulsory Process Clause “provides no greater protections in this area than those afforded by due process.” As indicated above, the Due Process Clause does not provide a right to a defendant to obtain a prior inconsistent statement of a governmental witness.

Further, the defendants do not seek the outtakes or the documents as “givers of evidence,” but seek to discover whether the material contains inconsistent statements of a prosecution witness. In this vein, it is noted that the defendants have not shown that the “witness” would be favorable to their case. Additionally, in order to establish a compulsory process violation, a defendant must show that the government prevented him from producing “relevant and material, and vital” evidence. A showing that both of the defendants concede that they are unable to make. The court concluded that the defendants had not established a compulsory process right to compel a nongovernmental agency to turn over prior witness statements.
The Sixth Amendment also provides, “in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” This provision includes the right of an “opportunity” to cross-examine witnesses but does not provide for a right to an effective cross-examination. Once a witness “is placed on the stand, under oath, and responds willingly to questions,” the right to cross-examine witnesses is satisfied. The right to confrontation is applicable to the states by incorporation through the Due Process Clause of the Fourteenth Amendment.

While it would be convenient for defense counsel to possess a witness’ prior inconsistent statements about robbery and would make the cross-examination more effective, nothing in the drug confrontation clause grants a defendant the right to involuntarily obtain such documents from civilian entities.

The court ruled that the defendant had failed to establish a confrontation right to the subpoenaed material. Since the defendants had no constitutional right to the subpoenaed material and the defendants conceded that they could not establish the three-pronged test contained in Civil Rights Law § 79-h, the court granted the motions to quash the subpoenas.
Accordingly, the court held that the motions to quash the subpoenas are granted and the subpoenas are quashed.

If your constitutional rights is about to be violated, seek the help of a Kings Prostitution Attorney and Kings Criminal Attorney in order to upheld your constitutional right in court. Call us at Stephen Bilkis and Associates.

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