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Each party initially learns the facts of the case through its personal knowledge and investigation. As the trial approaches, a set of procedures, commonly called discovery, permit each side to require disclosure of certain aspects of the opponent’s evidence. Whether in civil or criminal cases, the purposes of pretrial discovery are generally the same. Discovery of the opponent’s case is thought to further the truth-seeking function of trials by avoiding surprise, sometimes colorfully called ‘‘trial by ambush.’’ In addition, early disclosure of the strengths and weaknesses of the case facilitates negotiated settlement and, where appropriate, dismissal of baseless charges. Because discovery facilitates efficiency in litigation, it is believed to save resources.
Discovery in American courts is much less extensive in criminal cases than in civil, and it is somewhat asymmetrical in that greater discovery is provided for the defense than for the prosecution. These features are likely related to each other and each is in part a consequence of the constitutional rights protecting the criminal accused. Criminal discovery has, nevertheless, greatly expanded in the last third of the century. Expansion first concerned principally defense discovery from the prosecution, but in the last several decades, discovery from the defense has grown dramatically. The development and expansion of what is called reciprocal discovery— discovery provided to both defense and prosecution—is central to the considerable growth of discovery in criminal cases.
Interestingly, the federal system is not at the cutting edge of developments in criminal discovery. Instead, the movement has been led by the states, and it is perhaps the difficulty of tracking developments that occur in so many different jurisdictions that has resulted in relatively little attention being paid to the reasonably major changes in this field of criminal procedure.
Judicial and Legislative Authority
Early in our judicial history, courts took the view that they lacked authority to order discovery in criminal cases. That view generally persisted into this century, but it both changed and became less relevant after the 1930s as legislatures created discovery rights directly. That courts have inherent authority to order discovery is now widely accepted, but it has been rendered relatively unimportant as the result of enactment in most jurisdictions of comprehensive discovery legislation. Judicial discretion and inherent judicial authority are often significant but typically as supplementary and interstitial to a basic legislatively defined discovery system.
Special Pressures in Criminal Discovery
Discovery in criminal cases is affected by the constitutional rights that protect the accused. Among the rights that play a role are the Fifth Amendment rights against compulsory selfincrimination and to due process and the Sixth Amendment right to effective assistance of counsel, all made applicable to the states through the Fourteenth Amendment. The right against compulsory self-incrimination means that discovery against the accused will at some point be restricted, which in turn means that criminal discovery cannot be fully a ‘‘two-way street.’’ As interpreted by the Supreme Court during the last half of the century, the due process right means that the prosecution is constitutionally obligated to provide exculpatory information to the defense and to avoid use of false and perjured testimony. Effective assistance of counsel guarantees defendants critical aid in investigating and preparing a defense and occasionally provides arguments against usurpation of the defense counsels’ preparation and obtaining defendants’ communications.
The background for the debate about discovery in criminal cases is also affected by notions of the proper adversarial ‘‘balance,’’ assessments of the state of that balance in the overall system, and predictions of the impact of discovery on it. Other important background factors are the presumption of innocence, the requirement of proof beyond a reasonable doubt, and the proposition that erroneous acquittals are more acceptable than are convictions of the innocent. Many of these propositions suggest that the discovery system should favor disclosure to the defense in service of protecting the innocent and in recognition of the prosecution’s obligation to shoulder the entire burden of establishing guilt.
Supporting this asymmetry is the complementary argument that many aspects of the system tend to favor the prosecution. The prosecution typically has greater resources and can command an extensive investigative force in the form of police departments and other law enforcement resources. Evidence is usually gathered initially by the police, who have the power to search for and seize evidence under judicial authority and the ability to interrogate witnesses and the accused. The typically less adequately equipped defense attorney usually enters the case much later. Moreover, in some jurisdictions, the grand jury is an important investigatory tool that can compel testimony from witnesses and subpoena evidence.
The above characteristics often put the bulk of the evidence initially in the hands of the prosecution and suggest greater need by the defense to have access to prosecution-held information. In the initial stages of discovery reform, these features supported arguments to provide greater discovery to the defense. Justice William Brennan, one of the most effective advocates of this era, argued in an influential law review article in 1963 that defense discovery should be expanded to help turn the criminal trial from a sporting contest into a search for the truth. Such arguments were accepted for a time and to an extent. Thus, the initial expansion of discovery favored the defense almost entirely. Such discovery was designed to give the accused the basic facts to facilitate the rudiments of a defense. Ultimately, however, that one-sided argument could carry discovery only so far. It quickly encountered several counterarguments about peculiarities of criminal litigation that made unilaterally giving information to the defense highly problematic.
Critics often argued that because the stakes in criminal litigation for the accused are enormous and because many of those charged with crime are guilty and of questionable character, special dangers existed that the information disclosed would be misused. They contended that providing information to the defendant about the details of the prosecution case and its witnesses would likely lead to increased and more effective perjury and to intimidation of witnesses. Rejoinders can be made to many of the critics’ arguments. However, at their base, most have some merit, and these concerns helped limit the further expansion of defense-oriented discovery. In addition, those opposing expanded defense discovery noted that in many jurisdictions the preliminary hearing allows the defense an extensive preview of the prosecution’s case, although using this proceeding for discovery is sometimes considered an abuse. They also observed that the prosecution does not always enjoy a decided information advantage. Where defense counsel is expert and has adequate resources, independent investigation, aided by the defendant’s knowledge of the facts, reduces or eliminates the prosecution’s advantage, although most would acknowledge that only a relatively small group of defendants find themselves in this favorable situation.
The Central Demand for Reciprocity
The initial wave of discovery reform generally provided an important set of basic information to the defense to help assure accuracy in outcomes. However, it became increasingly clear that even the powerful argument that potentially innocent defendants needed special protection would not carry reform further if discovery continued to benefit only the defense. The prospects for continued expansion of criminal discovery were likely limited absent more evenhanded treatment of the prosecution and the defense.
Two decisions of the U.S. Supreme Court in the early 1970s—Williams v. Florida and Wardius v. Oregon—approved basic reciprocity requirements in discovery and opened the possibilities of future expansion. Williams, the first and most important of these cases, eliminated the argument that the defendant’s privilege against compulsory self-incrimination stood as a general bar to prosecutorial discovery. In that case, the defendant challenged the constitutionality of the state’s alibi demand rule, which allowed the prosecution to require the defendant to give notice of an intent to rely upon an alibi defense and provide information on where he or she claimed to have been at the time of the crime, and to name and provide addresses of supporting witnesses. The Court ruled that the notice of alibi defense did not violate the privilege because the rule does not compel the disclosure. The forces at trial that cause a defendant to disclose and present a defense do not constitute compulsion, and the Court concluded that the alibi demand rule only accelerated the timing of that disclosure.
Williams noted that, upon defense compliance with the alibi demand rule, the Florida rule required the state to provide the defense with information about the witnesses whom it would offer to negate the alibi. In Wardius v. Oregon, decided a few years later, the Court held that such reciprocal disclosures by the prosecution were required and concluded that Oregon’s rule violated due process because it contained no such requirements.
Further impetus to expand discovery generally and prosecutorial discovery in particular came from the Discovery Standards published by the American Bar Association (ABA) in 1970. In one important area, the standards proposed disclosure by the prosecution of names and addresses of the witnesses it intended to call together with witness statements. Reading Williams as broadly authorizing discovery from the defense as long as the prosecution provided the defense with the same type of information, the Standards adopted a requirement that the defense give the prosecution notice of all defenses it intended to raise and the names and addresses of supporting witnesses. Significantly, under this version of reciprocity, the prosecution’s right to discovery is independent of any defense request for similar disclosures.
Williams and the ABA Standards had a very substantial impact. Nearly half the states adopted related provisions, in some instances more expansive and in others more limited, but sharing the new theory that defense disclosures were constitutional and appropriate.
Another major force in the expansion of discovery, albeit a more moderate expansion and one based on a somewhat different theory of reciprocity, was the 1975 revision of discovery in the Federal Rules of Criminal Procedure. In particular, these rules did not then, and do not in the early twenty-first century, authorize the general discovery of witness names. The federal discovery rules are also premised on a somewhat different theory of reciprocity. Discovery against the defense depends upon a defense request for disclosure of a related category of evidence (and compliance with the request).
Under the federal rules model of conditional discovery, the validity of discovery against the defense rests on the theory of waiver of constitutional rights as opposed to the theory of advancement of the timing of disclosure articulated in Williams. Thus, by requesting discovery from the prosecution under a system conditioned on reciprocal obligations, the defense waives its right to object to the requirement that it provide discovery to the prosecution. The validity of this theory of waiver depends upon the defense having no independent right to the discovery requested and upon a determination that the pressures motivating the defendant to request discovery do not compel the request. It is debatable whether, in the absence of Williams, the waiver theory of conditional discovery would be sufficient to satisfy the Constitution or instead is constitutionally superfluous. Those jurisdictions that continue to use conditional discovery likely do so largely because it adds a degree of defense control and apparent fairness to requiring defense disclosure of potentially damaging information.
While questions remain regarding the validity of some uses of prosecutorial discovery, its basic constitutionality is relatively clear when coupled with reciprocal duties. The trend in each revision of the federal rules of criminal procedure—the third edition of the ABA Discovery Standards published in 1996, and new state discovery rules, such as Michigan’s rule adopted in 1995—is discovery that is largely a ‘‘two-way street.’’ Indeed, the authors of the third edition of the ABA Standards were explicit in their conclusion that efforts to limit prosecutorial discovery in the second edition of the Standard had resulted in that edition having very limited influence on legislative developments.
Although some debate over reciprocal discovery will continue, future expansion of criminal discovery is likely to depend on additional discovery being made available against the defense. Discovery against the defense is supported by a number of interests. First, some reformers believe that greater discovery from both sides is preferable because it likely leads to more accurate outcomes. A second group, which supports effective prosecution, argues that allowing the defense to ‘‘hide its hand’’ while requiring disclosure of the prosecution’s case creates an unfair imbalance. Third, many defense advocates believe that on the whole greater defense disclosures will ultimately benefit the defense as a necessary precondition to relatively free and complete access to the prosecution’s file. They note that typically the defense badly needs access to full information about the prosecution’s case and it rarely has much evidence of its own that would be discoverable.
Some defense supporters dissent from embracing broad discovery against the defense. They argue that in some cases the defense conducts its own investigation and develops a significant defense case, and in those situations, discovery requirements can produce a state of affairs unfavorable to the defendant. This debate within the defense community pits the interests of the unusual defendant with resources and/or an affirmative defense case against the general group of defendants who are typically indigent and represented by overworked and underpaid counsel merely testing the adequacy of the prosecution’s case.
Those familiar with civil discovery will immediately notice that several of its most important discovery devices—interrogatories, depositions, and demands for admission—are either completely absent from criminal discovery or are available in only a handful of jurisdictions. The pattern in criminal discovery is for the rules or statutes to require the disclosure of specific types of information, rather than to authorize the use of broad discovery devices that would likely produce such information and much more. In the areas of alibi (noted above) and insanity (discussed below) discovery rules specifically applicable to these defenses are the norm. One of the major reasons for general difference between civil and criminal discovery is the existence of the defendant’s constitutional privilege against compulsory self-incrimination.
While Williams decided that the state could discover from defendants information that they would ultimately provide as a defense, adversarial interrogation of defendants under threat of sanctions and any requirement that defendants admit parts of the prosecution’s case are not compatible with the Fifth Amendment. As a result, depositions, interrogatories, and demands for admission directed at the defendant are not available tools. Depositions of other witnesses do not directly offend the Constitution, however.
While used as a discovery device in a handful of states, depositions are used principally to preserve testimony of witnesses who are expected to be unavailable at trial. One reason depositions are not generally available is that most criminal defendants are indigent, and as a result, the cost to the party of taking depositions does not act as a check on excessive use as it does in civil cases. Concern about imposing additional obligations on witnesses, who are often already reticent to become involved in criminal cases and particularly to have contact with the defendant, militates against expanded use of depositions. This concern, highlighted by the victims’ rights movement, is particularly acute when a victim is also a witness in the case. Nevertheless, discovery depositions of witnesses other than the defendant (and sometimes victims) are used in a handful of states in criminal cases.
Particular Fifth Amendment Restrictions
The Fifth Amendment right against compulsory self-incrimination is clearly implicated by the requirement that the defendant provide a statement to the prosecution. Discovery rules generally steer clear of such requirements, but defense communication is required in connection with discovery for the insanity defense and related defenses where the defendant intends to introduce expert testimony based on direct communications with the defendant. When using such expert testimony, rules in most jurisdictions require the defendant to submit to an examination by another mental health expert or be barred from calling the defense expert. While the precise theory under which this requirement satisfies the privilege against compulsory selfincrimination is unclear, the most appropriate theory is the waiver of the right. By introducing the defense expert’s testimony based on communications with the defendant, the defendant effectively waives the right to remain silent. The defendant is allowed to introduce his or her own communications through an expert, and in return, the discovery rules require access to communications from the defendant by other nondefense experts. Rules of this sort have been uniformly upheld.
In addition to the Williams analysis that the privilege is not violated by merely advancing the time of disclosing a defense because such is not compelled within the meaning of the Fifth Amendment, the privilege is also not violated if the disclosure is not communicative or if the communication is not otherwise compelled. Communication is involved, of course, when a defendant is required to speak. However, when a defendant has at an earlier time voluntarily written a document, the prosecution’s use of that document at trial does not violate the privilege because the defendant was not compelled to make the statement. This is true even though the statement is both incriminating and communicative. As a result, use of statements previously generated does not typically violate the privilege. For related reasons, use of documents containing information that came, not from the defendant, but from others does not violate the defendant’s privilege.
In a very limited area, the privilege may be violated by the compelled production of documents, which occurs if the ‘‘act of production’’ itself is communicative. The Fifth Amendment is implicated if producing the document authenticates it, shows the defendant had possession of it, or establishes its existence (Fisher). Most discovery avoids these types of problem or involves documents as to which the communicative aspect is already a ‘‘foregone conclusion’’ (Nobles), and thus the privilege is not violated.
Open constitutional issues, however, remain in a several isolated areas. Where the defendant is required during discovery to provide information that the prosecution could use to prove guilt as part of its case-in-chief, the discovery requirement may be invalid. The other major open issue involves the use of information to impeach a defendant when the defendant gives notice of a defense in discovery but does not rely on that defense at trial.
Core Discovery Rights
While typically going further, most modern criminal discovery rules in the United States cover several core types of information, which were generally provided to defendants in the first generation of discovery statutes and rules. This core includes the statements of the defendant, documents, and tangible objects that either the prosecution intends to introduce at trial or were obtained from the defendant, and scientific reports of witnesses that the prosecution intends to call at trial. These items have several characteristics. First, they are often the key elements of the criminal case and defense access is arguably essential to effective testing of the prosecution’s case. Second, the evidence often came from the defendant and providing discovery of it seems not only fair but also reveals no prosecution secrets. Third, the evidence provides limited opportunities for effective perjury and even less chance of witness tampering.
One of the most important types of evidence in criminal cases is that of statements made by the defendant. Without exception, the prosecution is required to provide such statements when made by the defendant to individuals then known by the defendant to be law enforcement officials. However, in some jurisdictions, when such statements were made to others, such as undercover agents, they need not be disclosed, and are withheld lest witness identities, not otherwise discoverable, be revealed.
The defendant’s criminal record is often added to this core because of its obvious usefulness in trial decisions and the fact that the prosecution has better access to this unalterable type of information. Also typically included is a provision for discovery of evidence material to the preparation of the defense. Obtaining discovery of this latter type requires a showing by the defendant that the evidence is important under the facts of the particular case to adequate preparation of a defense. The effectiveness of this provision depends on the defense having knowledge of the case which, given limited discovery, may not be available, and rests ultimately on the relative liberality of prosecutors and judges, who exercise substantial discretion over this class of discovery.
In addition to the defendant’s own statements, some jurisdictions provide those of codefendants. This is the point where systems begin to differentiate themselves as far as their attitude toward discovery. In a number, the information is seen as presenting opportunities for effective fabrication of testimony, and disclosure is not provided unless it can be shown to be material to the preparation of a defense, such as showing a need to have separate trials.
Providing discovery in these core areas to the defense often comes today with basic obligations of reciprocity. Whether conditional upon defense requests for, and prosecution delivery of, similar information from the prosecution or an independent right of the prosecution, a general feature of modern criminal discovery is that the defendant must provide the prosecution with documents and tangible objects that it intends to introduce and with relevant reports of expert witnesses it intends to call.
Controversial Areas of Discovery
The availability of defense discovery of witness names and their statements is a feature that distinguishes discovery systems. Neither type of information is provided in discovery in federal courts, illustrating the fact that the federal system is not at the forefront of expansive criminal discovery, but many states provide both categories of discovery to defendants. States often also require that the defense provide similar information to the prosecution.
Resistance to disclosure in federal cases of witness names and statements may be explained by more frequent federal prosecution of cases involving organized crime and large criminal enterprises where the prospect of witness tampering is predictably greater. Federal authorities have never accepted that protective orders, which allow courts upon a showing of special need to impose limits on discovery, would be a sufficient protection. The concern is that even though dangers of tampering exist, prosecutors may be unable to support their request for a protective order with sufficient objective evidence of this danger.
The 1970 ABA Discovery Standards supported the disclosure to the defense of witness names and statements. As noted earlier, it also supported a right of the prosecution to obtain a list of defense witnesses as well as a specification of all defenses supported by such witnesses. A substantial number of states adopted some part of this expansive discovery system, and many of these require the defense to provide the prosecution with statements of defense witnesses as well. To facilitate disclosure, many of these states also remove the protection against disclosure of witness statements that is frequently found in the work product doctrine. By contrast, the federal system continues to prohibit discovery of witness statements through longstanding legislation, commonly called the ‘‘Jencks Act,’’ which prohibits required pretrial discovery of such statements but mandates their production for defense use in cross-examination and impeachment at the conclusion of the witness’ direct examination.
One growing trend in criminal discovery is to require the preparation of a summary of a witness’ testimony to be produced during discovery if a statement by the witness does not already exist. This requirement may be imposed on the defense and the prosecution alike. Preparation of such statements is required for all witnesses in some states, and it has been adopted, even in the federal courts, for expert witnesses. For expert witnesses in federal cases, both parties are required to provide their adversary with a written summary of the testimony of expert witnesses, which includes a description of the opinion, its basis, and the expert’s qualifications.
Sanctions for Discovery Violations
Discovery systems commonly list three major remedies for failure to comply with discovery rules: an order to comply, a continuance, and a prohibition against introducing the evidence or calling the witness not properly disclosed. In addition, other remedies are either explicitly authorized by the discovery provisions in some jurisdictions or recognized as an aspect of judicial discretion to control discovery. These other remedies include instructions to the jury regarding adverse inferences it may draw based on discovery violations, contempt sanctions, and, in rare instances, dismissal of the prosecution.
In Illinois v. Taylor, the U.S. Supreme Court answered whether it was constitutional to preclude a defense witness from testifying because of a defense failure to comply with a discovery rule. The Court held that preclusion was a proper remedy in some circumstances and ruled that it did not violate the defendant’s constitutional right to present defense evidence. Excluding the testimony of witnesses is not a preferred remedy, but the Court ruled it available for a willful discovery violation calculated to gain a tactical advantage in a situation where compliance with the discovery obligation was simple.
Generally, the defendant’s own testimony cannot constitutionally be excluded as a sanction for a discovery violation, but potentially all supporting testimony from other witnesses can be. As noted earlier, whether it is constitutional to use a withdrawn discovery notice, such as a notice of a particular alibi, against the defense to impeach another defense offered at trial remains a matter of debate. Many discovery rules prohibit such use of withdrawn defense notices, but others do not, and some courts have found that use of the withdrawn notice to impeach is proper.
Constitutionally Mandated Discovery
In Weatherford v. Bursey, the U.S. Supreme Court stated that the defendant in a criminal case has no federal constitutional right to general discovery. However, in one particular area, the due process clause produces a limited constitutional right to discovery. The Supreme Court began the development of the constitutional right of the defense to disclosure in Mooney v. Holohan with a rule that the prosecution could obtain a conviction through deliberate deception by presentation of testimony that was known to be perjured. It expanded this concept substantially in Brady v. Maryland by holding that the prosecution violates due process where it fails to disclose to the defense evidence favorable to the accused that is material either to guilt or punishment. The Brady doctrine, as it is called, has been refined by a number of subsequent cases that limit its application to evidence that is ‘‘material’’ in that the evidence would have made a different result in the trial ‘‘reasonably probable’’ had it been disclosed.
Brady did not explicitly require any pretrial disclosure of the evidence. However, the general position adopted by most courts and commentators is that pretrial disclosure is required if advance disclosure is necessary for the evidence to be used effectively. Thus, if the exculpatory material requires defense development before it can be introduced, a constitutionally based discovery requirement is thereby created. The right of defendants under most rules to obtain discovery of information material to the preparation of the defense involves a statutory right to discovery of evidence that is substantially broader than the constitutional right.
Discovery in criminal case will never rival the extensive system in civil litigation. However, its progress in the last three decades of the twentieth century was considerable. While some expansion of discovery can be expected, its rough outer limits have likely been defined. The remaining goal of reformers is to achieve in most jurisdictions a statutory entitlement to what is often called ‘‘open file discovery’’ from the prosecution, which will almost certainly entail further defense disclosures.
- American Bar Association. Standards Relating to Discovery and Procedure before Trial. Washington, D.C.: American Bar Association, 1969.
- American Bar Association. Standards Relating to Discovery and Procedure before Trial, Supplement. Washington, D.C.: American Bar Association, 1970.
- American Bar Association. ‘‘Discovery and Procedure before Trial.’’ In Standards Relating to the Administration of Justice, 2, 11–1 to 11–94. 2d ed., Boston: Little, Brown, 1980.
- American Bar Association. Standards for Criminal Justice: Discovery and Trial by Jury, 3d ed. Washington, D.C.: American Bar Association, 1996.
- BRENNAN, WILLIAM, JR. ‘‘The Criminal Prosecution: Sporting Event or Quest for Truth?’’ Washington University Law Quarterly no. 3 (June 1963): 279–295.
- IMWINKELRIED, EDWARD ‘‘The Applicability of the Attorney-Client Privilege to NonTestifying Experts: Reestablishing the Boundaries between the Attorney-Client Privilege and the Work Product Protection.’’ Washington University Law Quarterly 68 (1990): 19–50.
- LAFAVE, WAYNE, and ISRAEL, JEROLD H. Criminal Procedure, 2d ed. St. Paul, Minn.: West Publishing Co, 1992.
- LOUISELL, DAVID ‘‘Criminal Discovery and Self-Incrimination: Roger Traynor Confronts the Dilemma.’’ California Law Review 53 (1965): 89–102.
- MOSTELLER, ROBERT ‘‘Discovery against the Defense: Tilting the Adversarial Balance.’’ California Law Review 74 (1986): 1567–1685.
- TRAYNOR, ROGER ‘‘Ground Lost and Found in Criminal Discovery.’’ New York University Law Review 39 (1964): 228–250.
- VAN KESSEL, GORDON. ‘‘Prosecutorial Discovery and the Privilege against Self-Incrimination: Accommodation or Capitulation.’’ Hastings Constitutional Law Quarterly 4, no. 4 (Fall 1977): 855–900.