Thursday, August 18, 2022
Christina Frohock and Jeffrey Marcus (University of Miami - School of Law and Marcus Neiman Rashbaum & Pineiro LLP) have posted Witness Hide-and-Seek: Why Federal Prosecutors Should Record Pretrial Interviews (Seton Hall Law Review, Vol. 53, No. 3 (forthcoming January 2023)) on SSRN. Here is the abstract:
This Article pays long overdue attention to a federal appellate court’s warning against “playing hide-and-seek” with witnesses. Specifically, prosecutors should record interviews. While courtroom cameras dominate the topic of judicial transparency, cameras can play a critical role in a sleepier corner of criminal proceedings: pretrial witness interviews. The Article first tracks the history of open judicial proceedings as a tradition of our Anglo-American jurisprudence. Next, the Article identifies the normative thread running through that history: fairness may suffer when cameras transform public proceedings into publicized proceedings. Finally, the Article argues that this same issue of fairness applies to pretrial witness interviews. While fairness provides a reason against proceedings that are overly publicized, it provides a reason for interviews that are more public. Judicial proceedings are designed to ascertain truth; hidden off camera, witness interviews may obscure the truth. Recording witness interviews would lift those interviews on a par with other discovery aspects of a criminal proceeding and put a welcome end to games of witness hide-and-seek.