Prosecution by Email
MONDAY, MARCH 02, 2015

Read Thomas O’Brien ‘s essay on Prosecution by Email, published in today’s New York Law Journal.




The New York Law Journal
Prosecution by Email
By Thomas M. O’Brien
March 2, 2015

A bedrock requirement of a criminal case in New York has always been that the accuser must swear that his or her accusations are true. In misdemeanor cases this is done by putting one's signature below the written accusations and an acknowledgement that false statements can be prosecuted. This act of swearing converts the hearsay-based complaint into an "information," and the prosecution can then proceed on that document, which is the misdemeanor equivalent of the indictment in felony cases.

Section 100.30 of the Criminal Procedure Law lays out the exclusive methods of verification; all include signing and swearing. Nevertheless, a recent decision by a Queens Criminal Court judge would substitute a new procedure: verification by email. In People v. Gustalvo Perez Sanchez,1 Judge Deborah Modica ruled that an email from an accuser, containing his or her name printed below the accusations and the false statements acknowledgement, suffices to convert the hearsay complaint into an information.

The rationale for the ruling is that "electronic signatures" are common in other areas of life, so that "legislative authorization" is not needed because "such usage is no longer novel." As reported in the Law Journal, Queens prosecutors hailed the opinion as a "significant victory" for domestic violence victims. With electronic "verification," they would not have to travel to a police station or district attorney's office to sign a deposition.2

Certainly the Legislature can weigh such convenience concerns if it considers enacting the radical revision of the law represented in the Sanchez opinion. And radical it is, for nothing in the opinion restricts its sweep to accusers in domestic violence cases. If the ruling is followed by other judges, an "electronic signature," which is a metaphor for what is merely an email, could serve as the verification of any misdemeanor charge, of which there were roughly 262,000 in a recent year.

Such a sweeping change is only for the Legislature to put in place, not the Judiciary, and certainly not a single judge. In 1995, the Court of Appeals struck down a similar instance of judicial innovation. A sentencing judge had required a DWI defendant on probation to put "CONVICTED DWI" on his license plate. Such an innovation was improper, the high court said, because of "the obvious need for state-wide uniformity and the kind of policy choices that only an elected Legislature can make."

In fact, the judicial branch has already acknowledged the necessity of prior legislative action in order to extend the "electronic signature" to the verification of accusatory instruments in criminal cases. Beginning in 2010, the Office of Court Administration proposed an amendment to the CPL to allow either a handwritten signature or an "electronic signature" to verify a supporting deposition.5 The "electronic signature" must be "unique to the person using it." The draft proposal recognized that the current law authorizing the "electronic signature" in civil matters did not apply to criminal cases, and that legislation specifically authorizing its use in criminal proceedings was necessary "to comply with due process."

The Legislature has taken no action on the proposal. This is a legislative choice. Until the legislators choose a different course, it is not for the prosecution and judge to write a new law on their own.

Besides the fundamental law of separation of powers, there is another reason that an email containing the accuser's name printed below the form false-statement notice cannot serve to verify a supporting deposition. A higher court has ruled that a "signature" offered in analogous circumstances cannot sustain a prosecution under CPL §210.45.

In People v. Feola6 an assistant district attorney wrote and then sent by fax an affidavit to a police officer; the affidavit, purportedly signed by the officer, was returned by fax, under a cover sheet bearing the officer's name. The Second Department reversed the officer's conviction for making a false statement. There was not sufficient proof that the signature beneath the false statement was the officer's. Only "direct evidence" could prove that it was his "actual signature," and none was presented.

Direct evidence is evidence based on personal knowledge or observation.7 A name printed on an email is even further removed from satisfying this evidentiary standard than the faxed signature. Therefore, courts would have to hold any supporting deposition that was "verified" by email to be invalid on its face. The Sanchez opinion does not cite Feola or address this problem.

One might suppose from reading the Sanchez opinion that the "electronic signature" is simply another improvement that modern technology offers, so inevitable that legislative passage is beside the point. In fact, the Legislature has made a value judgment in requiring that an actual signature be a verifiable event in order to identify the accuser in a criminal misdemeanor case.

The consequences of a criminal prosecution for the defendant far outweigh the inconvenience involved in requiring a complainant to sign before an official witness. The so-called "170.70 day" is a crucial turning point early in a case. That is the day, five days after arrest, on which the accuser must physically sign the supporting deposition. If that is done, pursuant to CPL §170.70 the accused who cannot make bail can be kept in jail.

The Court of Appeals has emphasized "the unique function that any information serves under the statutory scheme established by the Criminal Procedure Law."8 That document is the "sole instrument" on which a defendant can be prosecuted. The accused does not have the protection of a grand jury or preliminary hearing, in which an adjudicative body or judicial officer can screen weak or unfounded charges before the accused is subjected to the ordeal of prosecution. There is no right to confrontation until the trial, and well over 99 percent of misdemeanors never reach a trial.

As one court has explained, the requirement of a signed verification "reduces the possibility that one could be unjustly forced to stand trial by an overzealous or negligent prosecutor based on indirect, incomplete or inadequately investigated accusation. When an accusatory instrument is signed by an alleged crime victim, it is apparent that a real person actually complained to the police and had an opportunity to review the accuracy of the factual allegations drafted by the prosecutor."9

CPL §100.30, which provides a variety of methods by which a person can verify a supporting deposition before a public official, is an expression of values, values inherent to due process and careful procedure. Requiring an actual signing by an identifiable person may now seem inefficient and ritualistic. But should due process be sacrificed for efficiency?

Electronic communication is faster than other means, but is hardly more reliable. The Internet and its offspring sometimes function as environments where all manner of venomous falsehoods and character assassination can be disseminated.

There is something about sitting alone and typing in front of a screen that imparts a feeling of impunity to some. There is even a technical term for the attitude: the "online disinhibition effect."10 That is the opposite of the state of mind that one verifying a criminal accusation should have. Swearing before a judge, police sergeant or notary public may appear to be old-fashioned protocol, but this protocol reflects the essence of our system of criminal justice. We should not let it be eroded by technological shortcuts.