Discovery

• Author: Charles H. Whitebread
• Pages: 793

Page 793

Discovery is a procedure by which one party obtains information from the adverse party in his case. This disclosure of information in criminal proceedings includes statements, documents, test results, reports, and other similar items. Although there is a very broad power to discover items in the exclusive possession of an adverse party in civil proceedings, the Supreme Court stated in Weatherford v. Bursey (1977) that "there is no general constitutional right to discovery in a criminal case."

In civil cases, the predominant means for discovery are depositions and interrogatories. In criminal cases, no jurisdiction expressly permits the defense to discover prosecutorial information through interrogatories. Most juruisdictions allow depositions in criminal cases only for the purpose of preserving testimony. Most jusdictions also have statutes or court rules similar to FEDERAL RULE OF CRIMINAL PROCEDURE 16 governing defense discovery which require the prosecution to disclose items such as: (1) written or recorded statements (including GRAND JURY testimony) of the defendant and, in some states, of any co-defendant; (2) the substance of any oral statment of the defendant (and, in some states of a co-defendant) that the prosecution intends to use at trial; (3) the defendant's prior criminal record; (4) relevant documents and other tangible objects; and (5) results and reports of physical or mental examinations and of scientific tests or experiments.

The prosecutorial duty to disclose exculpatory information is based on the view that the primary task of the prosecutor is to see justice done and DUE PROCESS upheld through the fair treatment of accused persons. If this duty is breached, the defendant is entitled to a new trial.

The leading modern case on this duty is Brady v. Maryland (1963). In separate trials, the petitioner and a companion were convicted of murder and sentenced to death. At his trial, the petitioner admitted participating in the crime but claimed that his companion had done the actual killing. Prior to trial the petitioner's attorney requested the prosecution to allow him to examine all the companion's statements to the police. One such statement, in which the companion admitted the actual killing, was withheld by the prosecution and did not come to the petitioner's attention until after his conviction was affirmed on APPEAL. The Supreme Court held that "the suppression by the prosecution of EVIDENCE...