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Law School Case Brief

People v. Rosario - 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961)


A right sense of justice entitles a defendant to examine a prior statement by a witness for the prosecution, whether or not it varies from his or her testimony on the stand. As long as a statement relates to the subject matter of the witness's testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examination.


Luis Rosario bragged about the death of a restaurant proprietor whom he shot during the course of a robbery that he and two accomplices committed. He was convicted of murder in the first degree by the Court of General Sessions of New York County (New York). His contention on appeal was that the trial court committed reversible error when it refused to turn over to defense counsel, for cross-examination purposes, statements given some time before the trial by three prosecution witnesses. Defendant's counsel requested for the prior statements of the witnesses to be turned over to them for possible use on cross-examination. The trial court told defense counsel that he might examine and use only those portions of the statement containing the variances.


Was defendant Rosario improperly denied access to pretrial statements of prosecution witnesses for use in cross-examination?




The Court of Appeals of New York held that the trial judge should have turned over to defendant Rosario the requested statements in their entirety because the State had no interest in interposing an obstacle to a disclosure of the facts. However, the error was harmless because there was no possible doubt of Rosario's guilt. Not only was there evidence of admission to friends before and after the fatal robbery, not only was there proof of a confession to the district attorney, not only was there evidence of flight, but there was ballistics testimony indicating that the lethal bullet had issued from Rosario's gun. Also, of the utmost significance, examination of the prior statements disclosed that the few variances contained in them were of a most inconsequential character. Accordingly, the Court affirmed the conviction for murder.

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