Using An Ellipsis To Misrepresent Language

by Jamison Koehler on November 14, 2013

You have to be honest with the court.  Your client’s fate depends on it.  So does your reputation.  It is one of the first things we learn in ethics class.

MPD General Order 601.02 reads as follows:

Members of the Department shall preserve all potentially discoverable material, including any such material, which may prove favorable to an accused.

This is how the prosecutor quoted the order in her brief to the court:

Members of the Department shall preserve all potentially discoverable material . . . which may prove favorable to an accused.

See the difference?  By using an ellipsis to omit “including any such material,” the prosecutor completely changed the meaning of the sentence.   According to the unabridged version, police officers are required to preserve all potentially discoverable material, including material that might prove favorable to the defendant.  According to the prosecutor’s version, the only potentially discoverable evidence that must be preserved is “material that may prove favorable to the defendant.”  This is pretty significant if you are requesting information that is discoverable but not necessarily favorable, and the police have lost it.

There is a pesky comma in there – the comma after “including any such material” — that could potentially support the prosecutor’s interpretation of the order.  But no.   To interpret “including any such material” as a subordinate clause set off by commas would be to render the language meaningless, and this could not have been the intent of the drafter.  Moreover, it would inconsistent with language elsewhere in the order that requires police to preserve all discoverable evidence, not just discoverable evidence that is favorable.

Therefore, the second comma could only have been a grammatical error.   And the prosecutor omitted the language because it was not convenient to her argument.

Many prosecutors, I have found, have a knee-jerk reaction to discovery requests:

  1. We don’t have it.
  2. It is not discoverable.
  3. It wouldn’t help your case anyway.
  4. I am going to do everything I can to prevent you from obtaining it.

5 Comments on “Using An Ellipsis To Misrepresent Language

  1. I’m sure she just wanted to amuse you, like me.

    “Many prosecutors, I have found, have a knee…”

  2. It is written so poorly I had to read it, and your essay, multiple times. Your piece was, as always, well written.

  3. Many prosecutors, I have found, have a knee-jerk reaction to discovery requests:
    We don’t have it.
    It is not discoverable.
    It wouldn’t help your case anyway.
    I am going to do everything I can to prevent you from obtaining it.

    Court isn’t about the law most cases become so contentious that it’s all about winning but not about proper execution of the law.

  4. As a baby prosecutor, the most important, difficult, and simple lessons I learned, was to show my entire file to the Defense, and say, “Take your best shot…”

    I was able to sleep at night thereafter.

  5. Mr. Hamilton: That’s the way it should be. In every courtroom in every jurisdiction. And not just because of the particular prosecutor.

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