The Rise and Fall of New York's Rogers-Bartolomeo Rule
Dillon, Mark C., Lubell, Lewis J., Albany Law Review
If the reader were to access the 1981 case of People v. Bartolomeo (1) on Westlaw, there is a prominent red flag to the left of the citation, meaning that at least one legal proposition in Bartolomeo is no longer good or current law. In fact, the Bartolomeo portion of the Rogers-Bartolomeo Rule, which is the subject of this article, was overruled by the New York State Court of Appeals in 1990 in the case of People v. Bing. (2) Although the history of the Rogers-Bartolomeo Rule was relatively brief, spanning only a single decade, its impact was significant to defendants, crime victims, judges, prosecutors, defense attorneys, and legal academicians alike. The Rogers-Bartolomeo Rule was controversial during its time. The rule was launched into New York State's jurisprudence as a significant expansion to the state's criminal exclusionary laws, and was shot at during the decade that followed until it crashed and burned in 1990.
The purpose of this article is not to necessarily debate whether the Rogers-Bartolomeo Rule was a wise or unwise expansion of the exclusionary rule and New York State's right to counsel. Rather, this article chronicles the history of well-intentioned efforts to assure the greatest degree of constitutional protections for persons confronted by the law enforcement arm of the state, and the courts' ultimate recognition that the expansion of the exclusionary rule proved to be impractical and unworkable for a variety of reasons, leading to its reversal. More than two additional decades have passed since Bartolomeo was reversed by the Court of Appeals. With hindsight and the perspectives that come with time, we may revisit the rise and fall of this controversial constitutional and evidentiary rule.
I. GENERAL EXCLUSIONARY RULES FOR VIOLATIONS OF THE RIGHT TO COUNSEL
The Rogers-Bartolomeo Rule arises out of the federal Sixth Amendment right to counsel. (3) The Sixth Amendment of the U.S. Constitution provides that, "[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence." (4) The right to counsel is the last of several rights contained in the Sixth Amendment, including the rights to speedy and public trials, impartial juries, information about crimes charged, the confrontation of witnesses, and compulsory process. (5)
The New York State Constitution contains language that is arguably less expansive about the right to counsel than its federal counterpart. (6) The state constitution provides that, "[i]n any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions and shall be informed of the nature and cause of the accusation and be confronted with the witnesses against him or her." (7) Nevertheless, New York's constitutional protections in favor of the accused are generally more expansive than their federal counterparts, as New York's interpretation of the right to counsel is defined within the broader constitutional context of the state's Fifth Amendment privilege against self-incrimination and the right to due process. (8)
In New York, a statement to law enforcement personnel is not admissible against the defendant at trial if it is "involuntarily made." (9) The state's Criminal Procedure Law ("CPL") section 60.45(2) defines an involuntarily made confession, admission, or other statement as including those obtained:
(a) [b]y any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; or
(b) [b]y a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him:
(i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or
(ii) in violation of such rights as the defendant may derive from the constitution of this state or of the United States. …