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WHY IS THE TROOPER OR OFFICER WHO ISSUED YOUR NEW YORK TRAFFIC TICKET ALSO PROSECUTING IT? PART II – THE “WITNESS ADVOCATE RULE”

As I explained in a previous blog, the practice of officers prosecuting the New York traffic tickets they issue was upheld by the New York Court of Appeals case; People v. Soddano. Soddano and it’s holding that officers may act as prosecutors for their tickets is flawed for several glaring reasons. First, the practice violates a principle as old as trials themselves – a witness may not act as an advocate at a trial. In other words, if the lawyer is a witness in a case, he may not act as one’s lawyer in that same case. For example, if I witness a car accident, I am forbidden from representing someone involved in that car accident. This is commonly referred to as the “Witness-Advocate Rule”. In fact, this ancient rule is codified in the Disciplinary Rules that attorneys in this State are obligated to follow. See N.Y.Ct.Rules, § 1200.21(c); (DR 5-102(c).

This is a very basic rule that most sixth-graders could comprehend once it was explained to them. If you are a witness in the case, you can’t represent someone in the case. Therefore, in a traffic ticket case, the issuing officer is not only a witness; he or she is usually the complaining, and sole witness in the case. Accordingly, under the “Witness-Advocate Rule”, the officer should be barred from representing the People. The officer should be barred from acting as an advocate in the very case he or she is the main witness. Very simple, right? Wrong!

You see, in most New York local criminal courts, “up is down” “down is up” “left is right” “right is left” and the Constitution and Due Process are mere annoyances that are simply cast aside. When I first became an attorney, I thought I was missing something. I became hesitant to even open my mouth in court because apparently in local criminal court, words have different meanings and statutes are interpreted and applied without regard to the plain wording of the law. I came out of law-school thinking the judges were the most wise and legally educated individuals in the equation. Quickly, however, I realized that I wasn’t misreading the law; I came to learn that the law doesn’t matter. It’s that simple – THE LAW DOESN’T MATTER. The extent to which most local criminal court judges will contort the law to ensure conviction and accommodate the prosecution is mind boggling.

How the courts justified officers prosecuting the tickets they issue when such conduct clearly violates the “Witness-Advocate Rule” is a perfect example of the contorted reasoning that courts will employ to justify improper prosecutorial misconduct and constitutional violations. In People v. Pappas, the Appellate Term held that the “Witness-Advocate Rule” didn’t apply to officers who prosecuted their own tickets because they are not attorneys and therefore are not bound by the Disciplinary Rules that attorneys must follow. 19 Misc.3d 140(A)(2008).

The court’s reasoning in Pappas is flawed. If the officers are not attorneys, they shouldn’t be prosecuting cases. By allowing officers to act as attorneys without being bound by the rules of attorney conduct removes a layer of protection designed to protect the public and ensure that those who practice law are fit to do so and comply with strict standards of conduct. It also puts an attorney representing a defendant at a disadvantage. Indeed, the defense attorney’s adversary (the officer) is not bound by the rules of attorney conduct. By allowing officers to prosecute their own tickets, without regard to the rules of attorney conduct, the Courts have created an unequal playing field. If the officer can violate the attorney Disciplinary Rules prohibiting a witness from representing a party; what other attorney Disciplinary Rules can the officer violate?

As I discuss in my next blog, the Legislature has indicated where non-attorneys may act as prosecutors and police officers are not one of the non-attorney classifications empowered by the Legislature to act as prosecutors.