The United States is a vast place and practices that seem de riguer on one coast are apparently unheard of on another border. This discordant approach – a product of State’s rights – is quite evident in criminal justice procedure. While the substantive laws are usually the same and the rights of each defendant are necessarily identical, the manner in which justice is delivered varies greatly from state to state.
Take, for example, the issue of discovery. For the non-lawyers, discovery refers to the disclosure by the prosecutor of the evidence it claims to have and intends to use against you in a criminal prosecution. It also includes evidence that it has or has notice of that would tend to undermine their theory that you are guilty. Discovery is an essential component of due process and the right to be informed of the charges against you.
But a hotly debated topic is what, exactly, constitutes discovery? And that’s where a haphazard application of the Constitutional protections becomes evident. Brady v. Maryland, the seminal case establishing the State’s obligation to turn over exculpatory information has limited value precisely because prosecutors are free to – and generally do – adopt a moving target theory of what “exculpatory” means. Similarly, some prosecutors take a very dim view of “discovery”. The arrest warrant, if one exists, the charging document and maybe a police report or two. I know of jurisdictions – even CT back in the day – where prosecutors turn over witness statements after their direct examination of the witness on the stand during trial and as a defense attorney, you have about 10 minutes to read it and see if there’s anything you can use to cross-examine.
It’s an ugly fight to fight usually, which is why many states have adopted rules to simplify the process, making it mandatory for the prosecutor to turn over a laundry list of items to the defense shortly after the institution of the proceedings. CT has several practice book sections devoted to just that. See Conn. Prac. Bk. Sections 40-1 through 40-39 generally [PDF]. The vast majority of these sections deal with the prosecutor’s obligation to turn over documents, like statements of witnesses, criminal records, police reports, expert reports, photos, videos and access to physical evidence. It’s pretty comprehensive and establishes the right of the defendant to have copies of almost everything that the prosecution has.
In order to get this, however, the defense also has the obligation to turn over some documents to the prosecutor, if they exist: names of witnesses the defendant intends to call to trial (typically in a witness list filed on the day of jury selection), written statements of any witnesses (which is why you never get a witness to write a statement) and reports by defense experts if and when the defense intends to have that expert testify at trial.
I write this because I came across this post yesterday by Grits for Breakfast about a proposed reciprocal discovery bill in Texas, which apparently does not have a robust discovery rule and was a little surprised to note that the main sticking point with the passage of this bill (and similar bills in the past) was defense counsel’s objection to the reciprocal discovery portion of it. I’ll mention the benefits to the defendant in a minute, but here’s what the proposed bill would require defendants to disclose [I’ve heavily truncated it for space]:
Sec. 2. DISCLOSURE BY DEFENDANT. (a) As soon as practicable after receiving the initial disclosure […] the defendant shall disclose […] and permit inspection, photocopying, and photographing of the following materials and information:
(1) any written or recorded statement by a witness, […] if the defendant intends to call the witness at the trial;
(2) any record of a criminal conviction admissible for impeachment […] of a witness, […] the defendant intends to call at the trial, if that information is known to the defendant;
(3) any physical or documentary evidence that the defendant intends to use at the trial and, on a showing of materiality by the attorney representing the state, the opportunity to test that evidence;
(4) the names and addresses of the witnesses called to present evidence[…] the defendant intends to call at the trial; and
(5) any report produced by or for an expert witness the defendant intends to call at the trial.
(b) On a request by the state, a defendant planning to offer evidence of one or more defenses listed in Chapter 8 or 9, Penal Code, or evidence of an alibi defense, shall file a good faith notice of intent to raise the defense […] Any notice provided under this subsection is for purposes of discovery only and is not admissible at trial unless the court finds that the contents of the notice were not made in good faith.
All of these, barring the criminal record subsection, are identical to our obligations here in CT and in a vast majority of states throughout the country. Has this somehow hampered the defense’s ability to zealously represent our clients? I doubt it. But I can see the argument that the obligation to prove the elements of the charges rests entirely with the State and the defense does not have an obligation, nor should it, to provide any information to the prosecution. In other words, “we’ll see you in court” shouldn’t mean “we’ll see you in court but here’s some of our information beforehand”.
It’s great in an idealized world where every case goes to trial and where the State is diligent in turning over all the evidence that it has and prosecutors are interested only in the truth and the pursuit of justice. In other words, if this were a fantasy, this would be a fantastic position to take.
But it’s not. A vast majority of cases resolve before trial (97%?) and that resolution is brought about not by standing on principle and telling the State to fuck off, but rather by convincing them that their position is incorrect or that they can’t prove their case or that they have over charged. While it’s great to hear “not guilty” from a jury; in my opinion, all things considered, it’s better to hear “the State will enter nolles“.
But, you say, if we can get the State to turn over all that it has, without these “reciprocal discovery” obligations, wouldn’t that be the perfect state? Sure, although I’m not sure as I said before that the defense is particularly hampered by having to provide a list of witnesses at trial. While the burden may be on the other side, there are still rules about not having trial by ambush and courts have routinely looked upon that disfavorably and I can see why.
Let’s look at Texas’ discovery statute as it currently stands:
Upon motion of the defendant showing good cause therefor and upon notice to the other parties, except as provided by Article 39.15, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.
This provision is nowhere near as powerful as the new proposal, but the amendment proposed doesn’t have a “good cause” requirement (!) and makes it mandatory to turn over a long list of documents immediately after the defense files a motion.