The Electronic Signatures and Records Act (ESRA) provides that "signatures" made via electronic means are legally binding just as hand-written signatures. Photo: Dennizn via Shutterstock

In early July, a fight broke out shortly before 4 p.m. in one of the neighborhoods near Interstate 278 in Staten Island. One man struck another man in the face with a closed and open fist, causing substantial injury. The office of Richmond County District Attorney Michael McMahon wanted to bring misdemeanor assault and harassment charges against the assailant.

Traditionally, the victim would need to come meet with the assistant district attorney in the office’s domestic violence unit to sign the supporting deposition, under penalty of perjury. That in-person validation of the allegations by the accuser is being phased out in favor of a simple email, sent to the accuser, who is asked to reply simply with the statement “I agree,” and his or her name.

The email from the ADA makes clear that all the legal obligations and penalties still apply. In the case above, the person responded as asked, providing prosecutors the accusatory instrument needed to move forward. Like so many aspects of modern life, technology is allowing district attorneys to forego an analog interaction in favor of a digital solution. Even the state’s Office of Court Administration has lined up in support.

“At times it can be unrealistic to expect that within the 170.70 timeframe complainants will come to a district attorney’s office to sign an accusatory instrument,” OCA spokesman Lucian Chalfen said in a statement, referring to the five-day period a defendant can be held before information must replace a misdemeanor complaint. “It’s a good use of technology.”

In a world where agreeing to online terms and conditions have become second nature, and everything from streaming movies to access to medical records is just a click away, being able to simply respond to an email to make sure domestic violence allegations proceed can appear both convenient and sensitive to victims in a distressing situation.

Yet defense attorneys and some academics argue that what may seem like a natural progression of modern convenience is instead a shortcut by prosecutors and judges operating in a statutory blind spot, where justice for both victim and the accused is being sacrificed for convenience.

“‘Due process’—the word to underline there is ‘process,’” said Thomas O’Brien, who is with the Legal Aid Society’s special litigation unit. “They have unilaterally created a shortcut which does away with an important part of the process.”

From Queens to Staten Island

According to O’Brien and others, the practice began in the Queens District Attorney’s Office. In 2015, O’Brien penned a critique for the New York Law Journal. Referring to the process as “prosecution by email,” O’Brien argued the decision by Acting Supreme Court Justice Deborah Modica of Queens County in 2015 allowing the DA’s Office to use an emailed response to convert the complaint into an information represented a usurpation of the state legislature’s prerogative.

“Until legislators choose a different course, it is not for the prosecution and judge to write a new law on their own,” O’Brien wrote then.

The Queens DA’s domestic violence bureau chief continues to disagree. Assistant District Attorney Scott Kessler said the office argued then and now that state law already existed permitting electronic signatures. The measure signed into law by Gov. George Pataki in 1999 was a general provision allowing the government to use e-signatures for documentation. It was not conceived as a criminal justice measure and made no specific reference to constitutional due process implications.

Kessler said the Electronic Signatures and Records Act vests the same legal weight in electronic signatures as in-person physical ones.

Since Modica’s January 2015 decision, which opened the door for Queens, Kessler pointed to six other decisions—two in Brooklyn, the rest in Queens—that have upheld the use of the office’s electronic signature policy.

“Every judge that’s reviewed this has agreed that we’ve followed the letter of the law,” he said.

More importantly for Kessler and other proponents of the process, allowing complainants to deal with the paperwork electronically provides a measure of relief after a likely traumatic event.

“Rather than have a victim leave the safety or comfort of her own home or shelter or safe location, we realized we could have her sign docs electronically,” Kessler said.

The Queens DA’s Office only sends the electronic signature forms to people who provide emails, and the office verifies in a follow-up phone call that the individual did, in fact, receive and respond to the office’s email, according to Kessler.

Some version of the practice has spread to almost all the other DA offices in the city. According to a spokesman in the Manhattan DA’s Office, any misdemeanor complainant who provides an email address is given the opportunity to sign using e-signature software provided by Adobe. In Brooklyn, the DA’s Office began using an e-signature process for a subset of domestic violence cases over the past year. A spokesman said the office was looking for ways to expand the use to other practices.

The most recent adopter is the Staten Island DA. A spokesman for McMahon confirmed they began the process in June, adding that it is a way to give domestic violence victims another option to more easily navigate the criminal justice system.

“On Staten Island, this practice has been successful in driving down dismissal rates in domestic violence cases by approximately 30 percent, allowing more victims of domestic violence to receive justice against their abusers,” the spokesman said in a statement.

A more recent decision out of Brooklyn underpinned the move to electronic signatures in Staten Island. In her Dec. 12, 2017, opinion in People v. Brothers, Criminal Court Judge Rosemarie Montalbano of Kings County cited both ERSA and Modica’s 2015 decision in supporting Brooklyn prosecutors’ use of an emailed affirmation in a domestic violence case.

'Judges and DAs Making Law'

Christopher Pisciotta, the head of Legal Aid Society criminal practice in Staten Island, said the public defenders in the island borough only found out about the policy change shortly before it took effect. He rejected the DA’s claim of a 30 percent drop in domestic violence dismissals. What drop there was was significantly less based on public defenders’ own records, he said, but more importantly the relatively small sample since June made any such claim premature, at best.

Pisciotta said the new practice has raised legal, ethical and best-practices concerns. Some of those concerns have crossed over from theory to reality, he told the Law Journal.

According to Pisciotta, the DA’s Office has received email responses from the accounts of defendants in cases. Other times, complaining witnesses have said they do not recall receiving an email, despite the DA’s Office authorizing the instrument on their behalf.

Pisciotta was not alone in raising concerns of this nature. Defenders in Queens also claim complainants were induced to respond to emails from prosecutors without fully understanding the significance. Individuals claim they were trying to drop charges and were instructed to respond to an email, while others were told they needed to sign to get a partner released.

These are in addition to the kind of concerns O’Brien and others have raised. Pisciotta said the ad hoc nature of the DAs’ application of the process means a lack of transparency and accountability.

“There is no statewide guidance in any fashion,” he said. “What you have now is judges and DAs making law.”

McMahon’s decision to embrace the e-signature process in criminal justice proceedings amounted to a new “level of secrecy” in a process that has long afforded defendants the right to know the specific allegations being made against them, and by whom, Pisciotta said. An integral part of that process has been the hands-on process of an investigation that resulted in an in-person swearing by the complainant, which is now being threatened.

“That’s the only way the criminal justice system can operate in a fair and just manner,” he added.

Critics of e-signatures also point to research that suggests the convenience and ease aspect may be its biggest liability.

A 2014 study published by University of Virginia associate professor Eileen Chou showed e-signatures failed to carry the same weight and significance for the signers as the physical process does.

“Results of four studies demonstrate that although functionally the same, e-signatures evoked markedly different psychological reactions than hand signatures,” Chou stated. “Namely, e-signatures evoked a weaker sense of the signer’s presence and involvement.”

Despite the controversy, prospects for anyone gaining guidance on the issue appear to be slim. Especially given Albany’s notoriously slow pace of addressing issues in the criminal justice system, demonstrated last year when the Legislature failed to move nearly all of a slate of criminal justice reform measures.

The most promising avenue would seem to be an appeal that would prompt New York’s appellate courts to weigh in on the issue. OCA spokesman Chalfen acknowledged that since the state law DAs are depending on doesn’t specifically authorize the procedure, “there is probably some ambiguity for higher courts to rule upon should the case arise.”

Yet the chances of a misdemeanor case, especially a domestic violence case, making it to the appellate level are slim, observers agreed. As Pisciotta noted, this isn’t how those kinds of cases work. Absent a change in that reality or the one pervading Albany, those dealing with the electronic signature process on either side are unlikely to see additional clarity on the practice any time soon.

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