Our judge has been asked to order us to turn over copies of CAC interviews of children in a case. I have no problem showing them to the defense in our office but the defense lawyer wants copies so that he can look at them at his leasure, presumably with expert and defendant at his side.

Does anyone have any ideas about how to prevent this exposure...I just don't like the idea of these tapes floating around out there in defense land...thanks

I would NEVER give a copy of a CAC tape, unless it was ordered by the judge. The law is clear on discovery - the defense is NOT entitled to it, unless ordered by the Court. The defense isn't even allowed to see it. I have had problems with giving statements, etc., out of our file when I know the defense counsel is letting the defendant have a copy, or the same is being shown to family, friends or other witnesses. Thus, I have cut some defense counsel off from open file discovery.

I have found that letting the defendant see the tape helps get the case worked out. The child is generally shown in the best light possible and makes as good an impression as he/she ever will. It lets the defendant see the victim as if the victim was on the witness stand.

I agree that providing access to the recording during discovery is generally a good thing. But that is not the same as providing a copy that can then circulate elsewhere.

Does a judge have the authority to order disclosure of the CAC tape prior to trial? Isn't it just a witness statement only subject to discovery after the witness testifies? FC 264.408 makes CAC tapes confidential and the property of the prosecuting attorney. Barring a Brady issue or the child testifying at trial, only CPS can even review the tape, much less have their own copy (without the prosecutor's consent).

Those tapes are confidential for a reason and it is to keep them out of the hands of the public, the defendant, and if the child does not testify even the defendant's attorney. Further it is specifically the property of the prosecutor, so that all the parties in a CPS case don't get to get their hands on the tape as well. While CPS can review it, even they cannot possess it, and therefore the judge of the CPS court cannot order it disclosed.

Is that because it is something secretive - yes -hence "confidential". Why? Because if CAC tapes were accessible, every divorce attorney would want the advocacy tape either to bolster their clients case or attack the opposing party. Every private attorney that could get one could use the tapes to foster litigation.

Point is CAC tapes are confidential and proseutors should fight tooth and nail any efforts by the judiciary to require disclosure. That doesn't mean that in a proper case, a prosecutor cannot use his/her discretion to facilitate convictions by disclosure. But it does mean we better all fight to keep them confidential or lose the confidentiality all together.

Amen.

(Now, this is where some legal scholar blasts eveything I've said based on some stupid statute somewhere)