Does the client have a right to discovery?

A number of changes to the Practice Book went into effect on January 1, 2010 here in CT. Of particular importance to this blog and criminal defense practitioners in the State are the changes to the discovery rules.

The regular discovery section was amended to add the following language:

Without the prior approval of the prosecuting authority or the court, defense counsel and his or her agents shall not provide copies of materials disclosed pursuant to Section 40 -13A to any person except to persons employed by defense counsel in connection with the investigation or defense of the case.

Note the use of the very specific “defense counsel”. Most criminal practice book provisions use the phrase “the defendant” as a substitute for either the defendant himself or his lawyer. But the use of “defense counsel” is particularly notable. The section seeks to exclude the defendant himself from possession copies of police reports, statements, affidavits, etc.

The only way for the defendant himself to get copies is through the permission of the prosecutor or the court. And even then, I suspect (as is the practice for many defense lawyers) they would require that names and addresses be redacted.

The changes to the section were actually agreed upon by a joint task force, comprising prosecutors and defense attorneys. The “compromise” was a much expanded discovery provision, making disclosure of all statements, affidavits and reports mandatory upon written request by the defense.

This, in my opinion, is a major victory. Each court here in the State was its own fiefdom prior to this change. In some jurisdictions you’d get all discovery on the first court date, without even having to ask, and in others the only way you’d get to see a police report is if you sat in the prosecutor’s office and read it – and perhaps copied it by hand – while they stood over your shoulder. Some jurisdictions would give you whatever you wanted and others wouldn’t give you what you were entitled to.

The brand new Section 40-13A provides:

Upon written request by a defendant and without requiring any order of the judicial authority the prosecuting authority shall no later than  forty-five days from receiving the request provide photocopies of all statements, law enforcement reports and affidavits within the possession of the prosecuting authority and his or her agents, including state and local law enforcement officers, which statements, reports and affidavits were  prepared concerning the offense charged, subject to the provisions of Sections 40 -10 and 40 -40 et seq.

This is a tremendous improvement, making uniform discovery provisions across the State.

But many are not happy with the tradeoff. The local listserve erupted today with a discussion of this. The argument – a valid one – is that the requirement that clients not be given copies of discovery is unethical. The file, after all, belongs to the client and the client only. The police reports are his police reports and the statements are by witnesses accusing him.

There are many clients who don’t want copies, but there are just as many who do. This new requirement might end up straining relations between attorney and client, which is an even bigger problem for already maligned public defenders.

Of course, this is not to say that the defendant can’t view the reports and statements. One could sit there all day and let the client read the documents in your possession; you just can’t make copies and hand them over – not without permission of the State anyway.

The rationale for the State’s position, I suspect, is that there is a risk of retaliation against witnesses whose names, addresses and phone numbers are sometimes printed in reports and on statements.

An easy solution for this, of course, is a requirement that all such identifying information (other than name) be redacted and copy of that redaction be provided to the State as well, as proof that it was indeed redacted.

I suspect the State might balk at this, though, because there are some lawyers who don’t bother to redact anything when they turn over discovery to the client. As I said, my practice has always been to redact, but I know there are some who don’t. The State doesn’t trust them and thus we all have to comply with this rule.

There is no State caselaw that I found addressing this issue. But there will be a challenge at some point – not by a lawyer, I think they’ll get on board with this rule sooner or later – but by a headstrong client running up against a stubborn prosecutor who refuses to give permission.

The argument can be made that as long as the defendant’s legal representative – the defense lawyer – has access to all materials, it is just as good as the defendant having access. The lawyer can, after all, show his client the documents. And it is the lawyer who has to defend the defendant, to advocate on his behalf and to present evidence in his defense.

But that argument belies a fundamental misunderstanding of the nature of the relationship between the defense lawyer and his client. I can imagine that if I were accused of a crime, I would be mightily irked if my lawyer told me he couldn’t give me a copy of the documents of accusation against me. I’d want to hold it, take it home with me, read it over and over again as many times as I wanted.

For some, this will only add another layer to the multi-faceted conspiracy theories about how all lawyers are in collusion and the system is out to get them.

This really is a true “compromise”. The new rule will benefit many, many defendants by providing automatic discovery of all documents in the State’s possession, but at the cost of risking the tenuous relationship between many others and their lawyers.

Do the benefits outweigh the costs? How is it done in your state?

31 thoughts on “Does the client have a right to discovery?

  1. Mark Bennett

    We had this question come up last year when our local DA started providing copies of offense reports for the first time ever. Part of the deal here is that we can’t get the ORs unless we promise not to give them to our clients; given that the other option (also available to lawyers in Grand Fenwick) is not to get copies of the offense reports at all, I have found clients to be very understanding of the nondisclosure requirement.

    1. Kimberly

      I have a question. Is there a special form you must fill out to ask for the discovery or would this be a hand written letter by the defendant and who does the defendant give it to.

  2. KC Law

    My practice is largely federal, and your new rule is the same as the practice in the Western District of Mo. I’ve never had a problem with any client. While some call it BS, I just blame it on our common enemy–the government, and we move on. I have seen co-defendants complain and write letters to the court requesting copies of discovery, but these pro se motions generally accompany a request to fire their attorney for not doing their job.

    1. Gideon Post author

      That’s correct – it does closely mirror the Federal rule.

      I just can’t imagine many judges saying “no, you can’t give your client a redacted copy of this statement or that report”.

      1. KC Law

        You would be surprised. It’s easier to just maintain the status quo. AUSA’s defend the policy like crazy, too. A few get really pissy about it.

        1. KC Law

          No, you may well be right. If your judges are already familiar with the practice of providing clients redacted copies, they might be more willing to give you your order.

          As an aside, have you run into a problem with snitches getting ahold of your clients’ discovery and fabricating an “admission” based upon their review of that discovery?

        2. Gideon Post author

          As an aside, have you run into a problem with snitches getting ahold of your clients’ discovery and fabricating an “admission” based upon their review of that discovery?

          I have never had that problem. Yet.

  3. Bill Thompson

    Our county prosecutor acquiesced in a local rule amendment providing for open discovery. This measure was recently adopted in a new state wide discovery rule. Moreover, we’ve gone to secure computer-based system allowing download of police reports, witness statements, lab reports and almost any and all documents and photos. The prosecution can petition the court to limit discovery where it can show potential harm to a witness. Other than that there’s really no guidance relative to the sharing of information with the client. I don’t routinely supply the client with a duplicate copy of discovery and have rarely been asked for it. I my judgment, any attempts to deny material to the defense should serve as a warning that state probably has something to hide. In damn near 30 years of practice, I can count on one hand the number of cases I’ve encountered circumstances where there existed a geniune risk of defendant driven witness intimidation. The state serves that up as a boogie man more times than not.

    1. Gideon Post author

      That’s exactly right. It is a somewhat silly rule, but it’s not the end of the world. It’s definitely workable and will only get better over time.

  4. Martin Budden

    Here’s a stupid question by a non-lawyer: is there a loophole? The ruling says: “to any person except to persons employed by defense counsel in connection with the investigation or defense of the case.” Could the defense council nominally employ the client for a token fee (say to read the discovery material to check for something)? Or does the law prevent the defense council employing their client?

  5. Don Waggoner

    In Florida, we have had open discovery for some time. The state only has 15 days to give it to us. There are no restrictions (at least written ones) about giving the discovery, redacted or not, to the client. I have had prosecutors ask that I do not devulge an address, phone number, or name from time to time, and I almost always honor that request. If I have a client that I personally believe may misuse identifying information in the discovery, I either redact it or don’t give the client the discovery. I personally have mixed feelings about clients having discovery. Those in jail sometimes get set up by snitches because of it. Those not in jail have no problem. But, clients sometimes need or want the discovery to read over it time after time after time, and to pick at the little things. Often they catch things I miss. It also makes it easier to discuss the case with them if they are completely aware of the evidence the state has. I may overlook something as unimportant and they are able to point out the importance. Of course, sometimes the opposite is true, and it really causes me a lot of hassle from a client, especially if he/she is getting advice from the “jailhouse lawyer” or other friend. Anyway, it seems as if we in Florida have it a little better than the rest of you, in this area at least, and we need to make sure we don’t screw it up. In my opinion, Florida’s rule is the way it should be everywhere.

  6. Rick Horowitz

    CA has a reciprocal discovery rule requiring informal discovery 30 days prior to trial. It comes complete with a list of sanctions for failure to turn over discovery.

    It is routinely ignored by prosecutors. When discovery and sanctions are requested by the defense, it is then largely ignored by judges. At best, defendants are allowed to waive the right to speedy trial; i.e., the “sanction on the prosecutor” is that the defense gets a continuance. If the prosecutor plays it right, the defense will eventually be accused by the judge of being dilatory for too many continuances and will be forced to trial sans full discovery.

    Works great, if by “crucible of adversarial testing” you mean “State’s gladiator against unarmed defense.”

  7. B

    In Massachusetts (where reciprocal discovery exists), The ADAs redact the victim/witness information off counsel’s copies of police reports prior to giving it to defense counsel at arraignment; counsel is left with only the names of the victims/witnesses.

    The good news is that lawyers routinely get everything they need at arraignment.

    When this practice started (not out of any formal rule — just a policy one day adopted out of nowhere by the DA’s office), we filed many motions seeking the redacted information for investigative purposes. Result? Judges got pissy with defense counsel for using too much paper.

    1. Gideon Post author

      That’s silly: how are you to investigate/contact witnesses if you don’t have access to their information? I understand not giving it to clients, but we’re presumed to behave professionally.

      Or was it easy to locate them through other means, like Lexis or the internet?

  8. Greg Jones

    I get the police reports, and the crime lab reports, but never anything else. Police reports come with names and addresses of witnesses already redacted on my copy, so that I can’t contact the witnesses myself, without doing a lot of digging, or begging. The judges won’t order their disclosure; but I can, if really necessary, get an unredacted copy of the police report through a Freedom of Informaiton Act request. This redaction comes despite the fact that the defendant often knows these things anyway, as in a case where he is supposed to have beaten up his girfriend with whom he cohabited. Like, he doesn’t know her address? Phone number? I practice in a county of about 150,000 in Michigan.

  9. Anoymous

    I would like to post anonymously if you don’t mind.

    Florida is like several states out west.

    I am not a lawyer, but how would a self-representing client get justice under these rules?

    Connecticut seems to over-react, denying rights of accused in order to prevent those few who would target accusers or witnesses.

    As a client, I would be one of those to balk hard at this. As someone once accused in Connecticut, if I had not had access to the prosecution’s initial documents (police report and summons) my lawyers would not have won the dismissal in my case.

    Without lots of money, I like most defendants, would never have been able to afford the research I did, all legal, all far from the accusers. Plus, some research only the defendant can do.

    My lawyers, like most, never would have compiled as much research as I either. Almost none ever do.

    Take a simple thing like the accuser’s address on the police report. After weeks researching public records including copious numbers of civil suits she and family members had filed, it because clear that she had a pattern of always giving a different address to authorities than where she actually lived. This was a minor but interesting detail. Also, the addresses were one of the ways to confirm her identify in those public documents that I uncovered that bore her name.

    She had been convicted of a crime of dishonesty and I acquired a certified copy of that. Prosecution never turned that over.

    She and her family members had sued everyone under the sun for motor vehicle and slip and falls over decades, changing her injury history in her cases, often altering names, using names they “goe by” or don’t go by.

    I filled notebooks that gave my lawyers an extremely ample, luxurious sense of context.

    If I had not had the minimum court documents with details like address or DOB, something, anything, I would not have been able to cofirm identities were the same in these other lawsuits.

    There are a ton of unpredictable ways defendants access to details helps in their defense. Defendants have a right to defend themselves.

    Again, in my case, I pulled records that had my accuser’s actual address so my lawyers could try to go interview her

    I read depositions in personal injury cases of hers that showed a marked lack of credibility noted by arbitrators and the courts.

    All into the notebooks provided to my attorneys. All pulled from public records, all starting with clues in the police report and ticket.

    Many starting from tiny details the rules committee would have you redact.

    Without access to that information, I wouldn’t have known that among the wierd phone calls I had received right after I was accused was from someone with the same family name – not the family name in the police report, but another one.

    I also wouldn’t have uncovered what looks like a family slip and fall ring that has been going along undetected, and continues to this day actually but now not so undetected.

    I broke not a single law. All public record searches.

    I would not have dreamed going near my accuser. I wouldn’t have in any scenario whatsoever, but in this case, one top of that, the family was chock full of felons, so I was terrified of them.

    She, a stranger on the street, had already falsely accused me, was already a convicted liar, and I had no victim rights or protections as the accused, so she could do it again and again.

    My lawyers based a very strong ‘motion in limine’ entirely on my research and nothing else.

    They would be the first to tell you that.

    I probably would still have been able to acquire records showing that the arresting officer, who had fabricated in my case, had been the subject of a motion by attorney accusing fraud for statements made in a court conference in a civil case.

    But most of what I acquired was possible only because i had access to the original charging documents.

    The case was dismissed.

    We never got a shred of discovery, and what we got, was willfully inaccurate. As I expected.

    What I got on my own was important in several ways:

    1. Most of it was information the prosecution would not have turned over anyway.

    2. It was stuff that the prosecution would not have turned over in time — I am not required to wait to begin work on defending myself. The prosecution doesn’t get to demand I sit on my hands until they say I can start defending myself. (There are scenarios where early investigation acquires information that isn’t available later.I shouldn’t even have to make a showing of that)

    3. The prosecution withholds and lies constantly here, constantly.

    4. Certain of my research skills don’t equal anyone else’s I know and only I might recognize a name or know the significance of an address buried in piles of records, deep in tangential research, that a researcher couldn’t know ahead of time might be significant and wouldn’t have turned over to me. So there is NO PROXY, NO SUBSTITUTE for the defendant.

    For one example of the lies these immune prosecutors enjoyed telling: We received exactly one piece of paper in discovery, beyond the police report, right up to the verge of the trial.

    On it was written by the prosecutor that there were no audio 911 recordings when there were.

    I acquired copies of some of the 911 audio files independently through FOI while my lawyers, apparently, were willing to take the prosecution’s word for it — never a good idea, but apparently it is bad etiquette here not to pretend the honor of other lawyers, even prosecutors.

    Connecticut’s approach essentially is to run a racket in the courts that would TEND to convict innocent people, that would tend to conceal corrupt practices, that would tend to obstruct truth from easily being unearthed, so on and so on.

    Independent investigation is important. To say that my case should depend on what the prosecution decides to turn over trivializes me. It puts the prosecution in charge of the defense. And that is what would have happened if I had not had access to the detailed informnation that made my research possible.

    The idea that I should in any way be put at the mercy of the prosecution, with its immunities, for my defense, its timing and its lawful activities is dangerous.

    Connecticut’s alienation of defendants from their defense has other consequences as well. It tends to foster this perception that if defendants don’t sit on their hands, if they do any research at all, however innocuous, they are out of line. Prosecutors get downright alarmed.

    The prosecution in my case threatened charges upon learning that I had pulled court records and turned them over to my attorneys. I got this sense that in Connecticut I didn’t have the right to defend myself.

    I pulled public records every day as part of my job. Now, suddenly, the prosecution was considering how to charge that as a crime. They didn’t, but they made that explicit, It was intimidating and wrong and that fear hung over me throughout the case.

    That response definitely emanated from these sorts of rules in Connecticut that segregates the client/defense from her lawyer/defense. There is no other word for the proseutor’s response to my research but plain old intimidation, but because of these rules, no one seems to recognize it for what it is.

    The prosecutors had no right to try to stop me from defending myself.

    I have never seen a prosecutor react that way in states out west where these rules don’t exist, rules I am familiar with because of my jobs out west doing court research, not as a defendant.

    Prosecutors everywhere will threaten to up charges but not as a direct response to the beleif that you don’t have the right to defend yourself.

    Look at someone like me, falsely accused and with no criminal history whatsoever, or history of violence, intimidation, anything. Why do I have to contend with obstacles that compromise my ability to defend myself? It’s overkill.

    I would not have won my case without that research, weak as the charge was. And no one would have become aware of the full extent of the activities of the family of the woman who accused me.

    It’s bad law.

    If a defendant is thought to be likely to harass witnesses or the accused, the prosecution should be forced to move and show cause why the defendant should be barred from access to evidence.

  10. Samuel

    (Not a lawyer) Ok.. so I’m in the state of CA and I de-breifed about a serious attempted murder case to the police. I’ve been thinking the lawyers of the suspect would get a copy of the reports and they would be able to find out about what I said and who I am? And pass it on to the suspects “friends”. I feel that I’m in a lot of serious danger . I ddont wana die yet..

  11. Jenn

    “…all statements, law enforcement reports and affidavits within the possession of the prosecuting authority and his or her agents, including state and local law enforcement officers…”
    Looking for case law holding DCF “an agent of prosecuting authority” in an effort to get transcript of DCH helpline call for impeachment purposes. Any thoughts?

  12. PDgirl

    In our state, the rules already provided for automatic discovery to be provided. nothing prohibits us from making copies for clients,and we do so regularly. a court in my area tried to make a local rule that PSIs couldn’t be copied for clients but most PDs ignored it.

    1. Gideon Post author

      Really? We can’t turn over PSIs and criminal records here (although we have to show the PSI to the client before sentencing, which always just struck me as incongruent rules).

  13. Jogendra Chhabra

    No one has more interest than the defendant himself of defending his life:not even the best defense attorney he can hire.The defendant needs to have all discovery in time to go over it as many times as he chooses to prepare his defense.This is more true when one is falsely accused and there is no credible evidence except BS and personal agenda of police and or prosecution.

  14. Pingback: Can the prosecution prevent you from giving discovery to a defendant? | a public defender

  15. steven

    may I ask a question? If after the 45 days in which the motion was filed for discovery by the defendants lawyer to the district attorneys office with no such response or evidence, what then may the defendant be able to do in a criminal case?

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