Too little, too late: ineffective assistance of counsel, the duty to investigate, and pretrial discovery in criminal cases.

• Author: Roberts, Jenny
• Position: New York

Where money is involved, all parties receive all relevant information from their adversaries upon request; but where individual liberty is at stake, such information can be either withheld by the prosecutor or parceled out at a time when it produces the least benefit to the accused. (1)

INTRODUCTION

You are an attorney for the Criminal Defense Division of the Legal Aid Society in Manhattan, and you go into Criminal Court to work an arraignment shift. The folder with your next client's case--her name is "Jane Smith" (2)--contains only one piece of paper related to the charge: the Criminal Court Complaint. It lists the charge of Grand Larceny and offers only the following facts: that at around 1:00 p.m. on August 1, 2003, near the corner of Third Avenue and Twenty-third Street, "a person known to the District Attorney's office" informed the police that "Jane Smith did steal $3,500" from her. Your client has little information to add because she is innocent. She has no idea what this is about. She only vaguely remembers where she might have been at the time, as the date was more than three months ago. And that one piece of paper, which does not give you the name of the complaining witness, is almost all of the information you will get in this case until seven months later on the morning the trial begins. It is all the information you receive because the statute governing discovery in New York State is highly restrictive and requires little disclosure of information meaningful to the ability to investigate until it is too late. For example, discovery that is as central as police reports containing statements of trial witnesses is mandated only after the jury is sworn. (3)

Unlike rules governing discovery in civil cases, which require that the two sides exchange most information about their respective cases, (4) criminal discovery result in a much more limited flow of information. Many commentators, for many years, have called for the liberalization of criminal discovery statutes and rules. (5) Indeed, some states have heeded the call. Florida allows defense counsel to depose prosecution witnesses; (6) New Jersey has long had broad discovery rules. (7) Around one-third of the states have relatively broad discovery rules or statutes, modeled on American Bar Association standards. (8) But about a dozen states follow the highly restrictive federal rule, which is premised in part on the idea that a defendant should not be entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case ever get to that stage. (9) The remaining states fall between the two models. (10)

New York is on the restrictive end of the spectrum. As Smith's attorney, you need to investigate the case; indeed, you are aware that you have a constitutional duty to do so. (11) But just about all you can do, with the limited information you have, is to visit a vaguely-defined crime scene in a very busy area of Manhattan. This is your situation right up until the start of the trial.

Jane Smith has a right, under the Sixth Amendment, to the "effective assistance of counsel." (12) Investigation of the prosecution's case and possible defenses has long been recognized as a core function of defense counsel in a criminal case, one that is necessary to the testing of the facts in our adversarial system. (13) This function has been consitutionalized as the Sixth Amendment duty to "make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (14) Yet does the representation of Jane Smith ensure an adversarial testing of the facts so as to protect against conviction of the innocent even while convicting the guilty? Is the quantum of investigation that the discovery rules allow defensible under the constitutional principle that adversarial testing cannot take place without defense counsel's independent investigation of the facts? The right to effective assistance of counsel rings hollow when restrictive discovery rules render an attorney unable to investigate the facts of the case.

There are clear connections among the effective assistance of counsel, the duty to investigate and discovery. It is the aim of this article to both explore those connections and to urge a Sixth Amendment analysis of restrictive discovery rules. This article describes how restrictive discovery rules block the delivery of effective assistance of counsel when defense counsel has insufficient information to investigate the case. The Supreme Court has not undertaken this type of analysis; it has considered discovery almost exclusively through the lens of due process under the Fourteenth Amendment. (15) Scholarship on discovery also largely fails to explore the validity of restrictive discovery under such a Sixth Amendment analysis. (16)

Reconsideration of the discovery framework is timely for two reasons. First, the Supreme Court has given much more vigor to defense counsel's Sixth-Amendment-based duty to investigate in two recent decisions which reversed death sentences: Williams v. Taylor, (17) in which, for the first time, the Supreme Court found ineffective assistance of counsel based on defense counsel's inadequate investigation, (18) and Wiggins v. Smith. (19) In its 2003 decision in Wiggins, the Supreme Court found that defense counsel's paltry investigation into mitigation evidence for Wiggins's capital sentencing hearing did not comport with "prevailing professional norms." (20)

The trial attorneys in Wiggins had the tools at their disposal to do the necessary investigation; records in their possession suggested a very troubled childhood. They simply failed to investigate this avenue. (21)

In many cases, such as that of Jane Smith, defense counsel do not have the tools to investigate the facts because their clients cannot give them the information they need to begin an investigation. This situation is presented most starkly with an innocent defendant, who knows nothing about the facts of the case against him and thus has no information to share. (22) How can counsel investigate enough to make informed choices about trial defenses when the client can say no more than "I know nothing about these charges"? The assumption that the defendant has enough information about the case to allow for investigation flies in the face of the constitutional right to a presumption of innocence. (23)

While the problem of acquiring adequate information for investigation in the case of an innocent defendant presents a compelling example that resonates with our notions of fundamental fairness in the adversary system, the problem exists well outside of the innocence context. Assuming that defense counsel can garner all necessary information from her client ignores the fact that many defendants suffer from mental illness or retardation, drug or alcohol abuse, impaired memory, and other impediments which might prevent them from being an adequate, sole source for investigative leads. (24) It also assumes that the defendant (even one who is guilty) possesses specific information, such as names and addresses of potential witnesses, which is necessary for defense counsel to adequately investigate the case. It ignores the fact that incarcerated defendants cannot bring their attorneys to relevant people or places when they lack this information, and instead, perhaps only know someone by nickname or by sight. Certainly, attorneys faced with these obstacles must also investigate the case in order to fulfill the promise of effective assistance under the Sixth Amendment, be that in a trial or in appropriately counseling a client in the context of a plea bargain. (25) The right to effective assistance is not contingent upon innocence. (26)

The second reason that reconsideration of the analytic framework for discovery is timely is that the recent debate over fairness in the death penalty has led to a greater understanding of the causes of wrongful convictions and to the identification of inadequate investigation as a core cause. This is perhaps the driving force behind the Court's renewed attention, in Williams and Wiggins, to failures to investigate. If adequate investigation can help protect against wrongful conviction, then courts must give the constitutional duty to investigate real meaning by giving defense counsel the discovery they need in order to investigate.

The role that discovery can play in advancing the goals of thorough investigation has not received the attention it deserves: as a mechanism to advance full airing of well-developed facts in an adversarial proceeding or within a plea bargain process where each side investigates enough so that there is some adversarial testing. While discovery that is broad enough and early enough in the case to allow for investigation is clearly not a panacea, (27) it is a low-cost and simple solution to one large obstacle to the effective assistance of counsel. Given Williams and Wiggins, and lessons about the need for adequate investigation to protect against wrongful conviction, it is important to consider how restrictive discovery can violate the right to the effective assistance of counsel. Courts--and legislatures--should build on the momentum of Wiggins to recognize that investigation is one of the core functions of defense counsel. It is a defining feature that gives meaning to the effective assistance of counsel. It is time to take the next logical step toward understanding how defense counsel's investigative ability is inextricably intertwined with the constraints that the discovery process places on defense counsel's access to information.

In Part I, this article explores defense counsel's duty to investigate in the context of the Sixth Amendment and considers the cases defining the duty. It focuses on Wiggins to demonstrate how the Supreme Court has recently given new force to the duty to investigate. Part II links the duty to...