People v. Paperno, 54 N.Y.2d 294 (1981)
A prosecutor with significant pretrial involvement in a case should be recused if the defendant makes a substantial showing that the prosecutor’s prior conduct will be a material issue at trial; absent such a showing, reversal is warranted only upon demonstrating a substantial likelihood of prejudice.
Summary
The New York Court of Appeals addressed when a prosecutor’s prior involvement in a case warrants disqualification from representing the People at trial. The court held that disqualification is required if the defendant demonstrates a significant possibility that the prosecutor’s pretrial activity will be a material issue. Otherwise, a conviction will only be reversed if the defendant proves a substantial likelihood of prejudice resulted from the prosecutor’s participation. This balances the defendant’s right to a fair trial with the prosecution’s right to choose its representatives.
Facts
A Grand Jury investigated bribery involving court employees. Defendant, a Special Referee for the Supreme Court, testified before the Grand Jury under immunity, repeatedly claiming lack of recall. As a result, he was indicted on eight counts of criminal contempt for giving “equivocal, evasive, conspicuously unbelievable and patently false testimony”. Before trial, the defense moved to recuse the prosecutor, ADA Ferrara, arguing Ferrara’s conduct before the Grand Jury (substance, form, tone) was material and that Ferrara would be arguing his own credibility to the jury.
Procedural History
The trial court denied the motion to recuse as untimely and lacking merit. Ferrara prosecuted the case. The Appellate Division reversed the conviction, holding that Ferrara’s recusal was required, announcing a broad rule against an advocate acting where their own conduct is a material issue. The Court of Appeals reversed and remitted to the Appellate Division, disagreeing with the broad recusal rule.
Issue(s)
Whether a prosecutor who questioned a defendant before a grand jury should be disqualified from representing the People at trial where the defendant claims the prosecutor’s conduct is a material issue in the case.
Holding
No, because the defendant must make a significant showing that the prosecutor’s pretrial conduct will render their participation in the trial unfair. Otherwise, disqualification is not automatic; the defendant must demonstrate a substantial likelihood of prejudice resulting from the prosecutor’s continued involvement.
Court’s Reasoning
The Court analyzed the motion to disqualify the prosecutor under the “advocate-witness rule” and the “unsworn witness rule.” The advocate-witness rule (Disciplinary Rules 5-101(B) and 5-102 of the Code of Professional Responsibility) generally requires a lawyer to withdraw if they or a member of their firm will testify on a disputed fact. The court found this rule inapplicable because the defense failed to show Ferrara would be called as a witness for the People or that his testimony would be adverse to the People.
The unsworn witness rule prohibits a prosecutor from injecting their own credibility into the trial, preventing them from expressing personal beliefs, vouching for witnesses, or suggesting facts not in evidence. The Court recognized the Appellate Division’s aim to effectuate the “spirit” of this rule but found their per se recusal rule too broad, as it doesn’t account for the District Attorney’s interest in choosing trial counsel or less drastic alternatives.
The Court established a two-pronged approach. First, a defendant must make an “adequate showing that the pretrial activity of the prosecutor will render his participation in the trial unfair”. This requires demonstrating a “significant possibility that the prosecutor’s pretrial activity will be a material issue in the case”. Second, even if the prosecutor is not recused, the court must take steps to avoid prejudice, such as redacting portions of a confession involving the prosecutor. Ultimately, a conviction will only be reversed if the defendant “satisfactorily establishes a substantial likelihood of prejudice flowing from the prosecutor’s subsequent conduct”. The Court emphasized that it does not intend “that [the defendant] be given ‘veto power’ over the District Attorney’s choice of prosecutor.”