The Benefits Of Filing Police Misconduct Cases In New York State Court By Michael Joseph on February 16, 2019

The question of whether to file a police misconduct case in Federal or State Court requires a balance of different factors and the applicable rules of procedure. If you are in a more conservative jurdiction, the more restrictive voir dire procedures are a major obstacle in Federal Court. In Federal Court, the voir dire is usually conducted by the Judge or a law clerk, and the prospective jurors are often stiff and somewhat reluctant to open up. In state court the lawyers handle the voir dire, which usually leads to jurors opening up more, which in turn lets you know which jurors have biases that will harm the client.

If the client has numerous misdemeanor convictions, then federal court may be better because the Federal Rules do not allow admission of misedemeanor convictions unless they involved falsity. However, New York has a much more liberal rule of introducing every conviction.

Another factor is how much discovery you will need from the District Attorney's office. In Federal Court, an attorney can just issue a subpeona for the district attorney's file and for deposition testimony of a prosector. However, in order to get a complete copy of a prosecutor's file in a state court action, you often need a Judge to so order a subpeona, which requires that the district attorney's office be put on notice and it is a more cumbersome process.

Likewise if you have a malicious prosecution case where there has been an indictment in the underlying case, Federal Court has some advantages     because Federal Judges are more willing to order disclosure of grand jury transcripts than Judges in New York State criminal court. This is significant because an indictment establishes a presumption that there was probable cause for the prosecution and since a malicious prosecution plaintiff needs to prove that there was a lack of probable cause an indictment can be an i surmountable burden and can lead to those who have been wrongfully convicted in losing their case even though they were maliciously prosecuted. To over come the presumption of probable cause a malicious prosecution plaintiff needs to show that the grand jury proceedings were tainted by perjury, suppression of exculpatory evidence or other police misconduct which affected the integrity of the proceedings such as the failure to disclose favorable evidence or misstating or fabrication of evidence. To prove that there was perjury or police misconduct in the grand jury sufficient to attack the integrity of the indictment, a New York civil rights attorney needs to demonstrate what the evidence was that was before the grand jury. New York State criminal Judges often reflexively deny applications for grand jury minutes and don’t understand the law or refuse to apply it fairly as they are too often focused on protecting they system. Federal Judges who are applying Federal civil rights law will apply the law that recognizes that grand jury minutes can be released for the particularized need of establishing the elements of a malicious prosecution case.

Our New York malicious prosecution and wrongful conviction lawyers have decades of experience in handling civil rights cases in both the state and federal courts.


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The Law Office of Michael H. Joseph, PLLC

Law Office of Michael H. Joseph, PLLC

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