witness_standSoftware used by the Kings County District Attorney's Office to comply with New York's new criminal case discovery reforms falls short of the law's requirement that prosecutors share witnesses' "adequate contact information" with defense lawyers, a Brooklyn judge has ruled.

The decision is the latest to highlight friction in implementation since its January effective date of the criminal justice reform package passed by the New York Legislature last year.

Like other DAs offices around the state, Brooklyn prosecutors have said they have security concerns about the new requirement that they turn over witness information to defense lawyers.

WitCom, the app used in Brooklyn, is one of several programs in use in various counties as a possible solution. After prosecutors add witnesses to the app's portal, defense lawyers see a list of witnesses to contact, but they can't see their real contact information. In broad terms, the system is analogous to how Uber drivers and passengers can call each other through the Uber app by pressing a button, without seeing real phone numbers.

Lawyers with Brooklyn Defender Services representing Quanyi Feng, who was charged in December with attempted murder, filed papers objecting to prosecutors' use of WitCom in late January.

Acting Supreme Court Justice Matthew Sciarrino on Thursday ordered Feng's defense team to try to use WitCom and to submit a report about the results.

While a defense lawyer did eventually hear back from two witnesses—one who responded WitCom and one who called from a personal phone—both witnesses indicated that prosecutors had prompted them to respond, the defense attorney reported.

Sciarrino found that anonymized contact tools can be appropriate, even helpful, in some situations—but in other situations, WitCom "short circuits the adversarial process by inserting the prosecutor (or their app) as an intermediary between defense counsel and witness," he wrote. The decision of whether to use apps like WitCom should be up to defense attorneys, he ruled.

"Moreover, use of the WitCom app is contrary to the plain meaning of the statute which calls for the People to provide contact information," he wrote. "WitCom—although a novel approach to witness communication—stands for a lack of information, putting defense counsel at an unfair disadvantage."

Sciarrino ordered prosecutors to share an "active and verified email address and cell phone number for their witnesses" with defense counsel, and he stayed the decision for 30 days. The next court date in the Feng case is scheduled for March 23.

He also rejected the comparison of WitCom to popular apps like Uber and Grubhub, which are "voluntarily downloaded as a first-world convenience."

"To argue that the court should accept the WitCom app because millions of people use Uber, Lyft, Grubhub, etc., is ludicrous … They are in no way akin to forcing an adversarial party to litigation to use an app absent a court order," he wrote.

In a statement, a spokesperson for the Brooklyn DA's office said prosecutors are disappointed by Sciarrino's decision.

"We are disappointed by the decision and are reviewing our options," the statement said. "It is our duty to protect our victims and witnesses and fear that a quick internet search of their cell phone numbers will reveal their home addresses. Such an invasion of privacy is unwarranted and was specifically ruled out by the legislature."

Sciarrino noted in his decision that the law requires good cause to be shown before home addresses can be released, and he noted that that issue has not been reached in the Feng case.

Lisa Schreibersdorf, executive director of Brooklyn Defender Services, said in a statement that Sciarrino's decision "affirms and supports the purpose" of the discovery reform law.

"We hope the spirit of this decision sends a message to district attorneys that they should not discourage witnesses from being open and forthcoming with defense attorneys, which will enable the whole truth to come to light and ultimately serve justice," she said.

Barry Kamins, a retired Brooklyn Supreme Court justice, said the case is an early example of the issues that will need clarification in the new law.

"The decision is one of the first decisions to wrestle with the definition of "adequate contact information" in the new discovery statute," Kamins said. "Judges will be asked in many cases to determine whether virtual information from a secure portal can substitute for an actual email address or a verified cell number of a prosecution witness."

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