JUDICIAL NEGLECT OF THE STATUTORY BASIS FOR THE ROSARIO RULE: THE
GENESIS OF THE POSSESSION OR CONTROL REQUIREMENT
David Blair-Loy
5 J. L. & Pol'y 469 (1997)
In 1961, the New York Court of Appeals, in People v. Rosario, held that the prosecution
must turn over to the defense certain prior statements by prosecution witnesses. In 1979, the New
York State legislature enacted section 240.45(1)(a) of the Criminal Procedural Law, which also
requires production of prior statements by prosecution witnesses. Despite significant discrepancies
in the language of the Rosario case and the controlling statute, the Court of Appeals has neglected
the controlling statute in deciding a critical issue: whether a prosecutor is required to produce
statements not in the actual possession of the prosecutor's office.
This Article examines the origins and evolution of the "possession or control" rule and
suggests that it cannot be justified under the language or purposes of the governing statute. This
Article then proposes an alternative interpretation of the statute: the prosecution should have the
obligation to produce any prior written or recorded statement in the possession of any governmental
agency, state or local. The author purports that such an interpretation is consistent with the language
and purposes of the statute and avoids the pitfalls of the current scheme.