An argument against open-file discovery in criminal cases.

AuthorFox, Brian P.

Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of any one of the twelve [jurors]. Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and make his defense, fairly or foully, I have never beers able to see.... Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime.

--Judge Learned Hand, United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923).

INTRODUCTION

After more than a year of media hype surrounding accusations of rape against three college athletes at Duke University (dubbed the "Duke Lacrosse Case" (1), North Carolina Attorney General Roy A. Cooper publicly announced the students' innocence and decried the prosecutor assigned to the case for his "tragic rush to accuse [the students] and a failure to verify serious allegations." (2) The fallout from this unethical prosecution included the disbarment of "'rogue' prosecutor" Mike Nifong (3) and an onslaught of calls for reform and more oversight in criminal prosecutions. (4) More specifically, many commentators saw this attempted miscarriage of justice as the perfect resurgence for an argument in favor of "open-file discovery." (5)

Open-file discovery is the idea that the prosecution should provide the defense with everything in the prosecution's file--including witness statements and the names of witnesses, forensic evidence, and police reports. The defense would have access to this information without regard to the materiality of the evidence or the likelihood that the prosecution would introduce that evidence at trial. (6) The argument for open-file discovery, as reinvigorated by the Duke Lacrosse Case, is, "Had Mr. Nifong been operating under an open-file policy, the Duke Lacrosse Case never would have developed as far as it did." Mr. Nifong had DNA evidence in his possession that conclusively exonerated the accused Duke students. (7) If the defense had complete access to Mr. Nifong's files, the argument goes, they would have discovered the DNA evidence and the case would have ended. Unfortunately, the commentators in favor of open-file discovery failed to focus on the genesis of this foiled witch-hunt. The problem in the Duke Lacrosse Case was not the "closedness" of the prosecution's discovery files, but rather a "malicious[] conspir[acy] to bring charges ... against ... three innocent students." (8) Luckily for these students, Mr. Nifong bit off a little bit more than he could chew, and the defense counsel was able to expose the poorly orchestrated prosecutorial grandstanding and clear the students' names. (9) The case drew a national spotlight, and the defendants could afford private counsel to investigate the prosecutor's claims--not the best situation for a prosecutor attempting to hide evidence. (10)

This Note argues that, for the most part, open-file discovery proponents fail to recognize the added burden that defense counsel would face under a regime in which all items of the prosecution's evidence are available for investigation by the defense. (11) This is particularly true in the eighty to ninety percent of criminal cases where the defendant is indigent, and the court-appointed defense counsel is operating under strict resource constraints. (12) This Note also argues that advocates of open-file discovery fail to recognize that in the majority of cases involving prosecutorial misconduct, the prosecutor's intentional wrongdoing will be sufficient to overshadow any reasonable amount of diligence performed by defense counsel. (13)

This Note will contend that instituting an open-file discovery policy would only compound the problem of providing adequate representation to defendants. In light of the fact that the overwhelming majority of defendants are represented by publicly funded counsel, this Note will focus on the effects of open-file discovery to indigent defendants. Specifically, it will argue that any attendant benefits received by a single defendant under an open-file discovery regime would be largely outweighed by the costs to defendants as a whole and to the judicial system. This Note will demonstrate that the economic consequences of open-file discovery would be disastrous in the current judicial environment and would serve as nothing more than a shifting of burdens from the prosecution to the defense. The effect of this burden shifting would lead to more overworked public defenders and lower quality representation for indigent defendants. This Note will also demonstrate that in the cases often cited as the hallmark evidence showing a need for open-file discovery--those in which innocent defendants are convicted because the prosecution affirmatively fails to disclose exculpatory evidence--open-file discovery would serve no actual purpose in eliminating the prosecutorial misconduct. This Note will show that open-file discovery would cause more harm than good by creating a situation in which prosecutors could overwhelm defense counsel with evidence, either intentionally or unintentionally, and frustrate defense counsel's ability to locate and synthesize critical evidence.

Part I will begin with an overview of what open-file discovery entails, including some of the key arguments trumpeted by supporters and some of the counterarguments offered by those opposed to open-file discovery. It will also discuss how open-file discovery relates to constitutional disclosure requirements and the timing issues related to plea bargaining and trial. Part II will analyze the first major hurdle to the implementation of open-file discovery: economic constraints of the criminal justice system, with a particular focus on the prosecution and defense of indigents. The analysis will consider the current economic climate of indigent defense and also the economic feasibility of open-file discovery. Part III will discuss the second major obstacle that an open-file discovery regime would face: the practical consequences of open-file discovery and the actual coincident benefits to defendants. Particular focus will be paid to the inability of open-file discovery to combat prosecutorial malfeasance and the unethical advantages prosecutors can gain by giving defendants open access to the evidence. Finally, the Conclusion will summarize the arguments against open-file discovery and advocate maintaining the current system of limited discovery for criminal defendants.

  1. OVERVIEW OF OPEN-FILE DISCOVERY

    1. Breadth of Allowable Discovery

      Unlike modern discovery in civil trials, criminal discovery is very restricted. (14) There are many reasons to be critical of this dichotomy, the most prevalent of which is the injustice of placing a greater importance on cases involving money than on cases "where the freedom and, sometimes, the life of the defendant are at stake." (15) However, while the prosecution is not required to provide open access to all of its investigative findings, it is required to turn over "material" evidence to the defense--that evidence which is exculpatory in nature (dubbed "Brady evidence"). (16) The most often cited reasons in support of this restrictive discovery regime in criminal cases are the protection of witnesses and the fact that defendants already have a heavy enough thumb on their side of the scales of justice. (17)

      1. Open-File Discovery

        The central premise of open-file discovery is that everything the prosecution knows should be revealed to the defendant. Nothing is held back--if the prosecution has a piece of evidence, the defense has access to that same piece. (18) The leading argument for open-file discovery is that the "quest for truth" outweighs any possible arguments against broader discovery. (19) The legal system is designed to seek out the truth, and "[t]he truth is most likely to emerge when each side seeks to take the other by reason rather than by surprise." (20) Defendants are almost always operating with a significantly smaller budget. (21) Thus, it is unjust to allow the side with more resources to control the disposition of a criminal case merely because a defendant cannot afford to perform independent investigation. (22)

        Supporters of open-file discovery also maintain that better-informed defendants will lead to more efficient dispositions of criminal cases. (23) Defendants can make informed decisions about whether to proceed to trial or plead guilty when they know the full weight of the evidence against them. (24) When faced with all of the evidence, more defendants are likely to plead guilty, thus the prosecutor can avoid the time and expense of a trial. (25) The belief is that the moral justifications for permitting defendants access to prosecutors' files, combined with the cost savings for prosecutors, make open-file discovery a "win-win."

      2. Limited Discovery

        In spite of the compelling justice-based arguments in favor of open-file discovery, opponents offer two main reasons why open-file discovery should not be the law of the land: witness intimidation and fairness. The words "witness intimidation" evoke images of mobsters knocking on the doors of innocent bystanders who happened to be in the wrong place at the wrong time. Many commentators dismiss the risk of witness intimidation by proposing that the prosecution should bear the burden of showing witness safety is an issue, on a case-by-case basis. (26) However, witness intimidation is a very real thing--and not just in cases involving organized crime. (27) In a study performed by New York's Victim Services Agency and the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT