PART 2 - CHAPTER 8 Discovery and Disclosure
| Jurisdiction | United States |
Chapter 8 Discovery and Disclosure
CHAPTER OBJECTIVES
After reading this chapter, you should be able to:
■ Explain why discovery is an essential part of the U.S. legal system.
■ Compare and contrast the following terms: "discovery," "disclosure," "depositions," "exculpatory evidence," and "impeachment evidence."
■ Discuss the ways in which the Due Process Clause and the Self-Incrimination Clauses impact the discovery process.
■ Explain how judges deal with discovery disputes and the standards they use in deciding whether specific types of materials must be disclosed.
■ Explain what e-discovery is and how it differs from traditional discovery.
■ Prepare documents related to discovery requests and responses.
■ List and explain the use of the types of depositions taken in criminal cases.
■ Explain what paralegals can do to prepare a witness for a deposition.
■ Compare and contrast the use of deposition summaries and abstracts.
■ Compare and contrast a written discovery request and subpoena duces tecum.
INTRODUCTION
Up to this point, we have covered the actions taken by law enforcement officials (i.e., police and prosecutors) as they investigate crimes and prosecute them in the court system. We have also discussed the role of the defense attorney and the responsibilities involved in representing a person accused of a crime. This chapter focuses on the procedures used to acquire and exchange information that is vital to both sides in assessing the strength of the case and preparing for trial. It is an aspect of criminal litigation in which paralegals can play an active role.
In everyday usage, "discovery" is used either to identify something that a person didn't know or hadn't seen before, or as a process used to find something new. In the legal system, discovery is a legal procedure by which a party in the case can obtain information about the case from parties or other sources prior to the start of the trial. As part of the discovery process, parties to a case disclose to the other side relevant information involved in the litigation.
The discovery process is somewhat analogous to gold mining. Initially, a miner performs an exploratory drilling to find out whether gold is even present at the site. If it is there, the miner taps into this area. He will continue to focus on sites rich with gold ore as long as it is economically feasible to retrieve it. Ultimately, the mineral that is recovered is processed into a polished product. As in gold mining, formal discovery may yield some, much, or no helpful material. A skilled criminal law practitioner will react to the initial disclosures to determine whether it makes sense to seek additional information and what type should be sought. Once all of the raw data are retrieved and organized, the attorney uses this information to design an appropriate approach to the case.
While there are many variations in the rules of criminal procedure among the states and federal government, there are two basic models of formal discovery in criminal cases. Both models will be discussed in this chapter. You will need to check your jurisdiction's criminal procedural rules to see which model applies to your state and the scope of disclosure.
A. JUSTIFICATIONS FOR DISCOVERY
Discovery is an essential part of the adversary system because it is designed to provide both sides with the evidence needed to present their cases to the judge or jury deciding the matter. Justice would not be done if one side did not know what the opposing side was going to present at trial.
Discovery eliminates the element of surprise. Surprise witnesses make for good movies and television shows, but they do not always lead to just results. Through discovery, each side learns the identities of opposition witnesses and their likely testimony. This knowledge gives each side more time to investigate the background of adverse witnesses, find expert witnesses, etc.
In addition to making trials fairer and more efficient, discovery often encourages out-of-court settlements, which save time and money. If the defense knows that there were several eyewitnesses to the crime or that the defendant's fingerprints were found on the murder weapon, the defendant is far more likely to plead guilty to a lesser crime in return for a reduced sentence. On the other hand, if the defense knows that the only witness has poor eyesight and a longstanding grudge against the defendant, the defense is more likely to either go to trial or hold out for a better plea bargain. The trial will be more efficient because the information gained through discovery allows the attorneys to fight over various evidentiary issues before the trial begins. By resolving these issues before trial, some potential witnesses may not have to appear, or witnesses will spend less time on the stand. Indeed, the judge's rulings on some of these pre-trial motions may also encourage a plea-bargained alternative to the trial.
To represent their clients effectively, defense attorneys have a duty to collect information to investigate the case. They might gather information that can be used to impeach police officers, the alleged victim, and other prosecution witnesses. If their trial theory is that a third party committed the crime, defense counsel will seek information about the third-party suspect. When the defendant asserts the alibi defense, counsel will assemble evidence to establish the client's whereabouts when the crime was committed as well as information that may be used to impeach eyewitnesses.
B. CONSTITUTIONAL ISSUES INVOLVED IN DISCOVERY
Before reading further, go back to pages 92-97 in Chapter 4 to review what we had to say about due process of law and the provisions of the U.S. Constitution that protect the rights of criminal defendants. The two main constitutional issues arising in the context of discovery are (1) whether it is a violation of the Due Process Clause to withhold evidence from the other side and (2) whether it is a violation of the privilege against self-incrimination to force the defense to turn over materials that may tend to incriminate the accused.
In 1963, in Brady v. Maryland,1 the U.S. Supreme Court made it clear that the Due Process Clause requires prosecutors to turn over relevant exculpatory evidence to the defense. Exculpatory evidence is evidence that either tends to establish the defendant's innocence or is favorable to the accused on the question of punishment.2 In Giglio v. United States, the U.S. Supreme Court held that the prosecution's Brady obligations included the affirmative duty to provide the defense with impeachment evidence.3 In either case, the government's duty to disclose is limited to material evidence. Evidence is material "if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different."4 In Kyles v. Whitley,5 the Supreme Court expressly stated that the individual prosecutor has an affirmative duty to learn of any favorable evidence known to the other people and agencies acting on the government's behalf on the case, including the police.
In 2020, the United States enacted the Due Process Protections Act to provide defendants with greater protection under Brady by adding the following subparagraph to Rule 5 of the Federal Rules of Criminal Procedure (FRCrP):
(f) Reminder of Prosecutorial Obligation.
(1) In General. In all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present, the judge shall issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law.
Subparagraph (f)(2) of Rule 5 requires the U.S. District Courts to develop a model order to implement the change. A model order entered by a District Court Judge in the Southern District of New York appears in in Exhibit 8.1.
Exhibit 8.1: Model Order Entered by a District Court Judge in the Southern
ORDER ISSUED PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 5(F)
LAURA TAYLOR SWAIN, United States District Judge
The parties are directed, pursuant to Federal Rule of Criminal Procedure 5(f) as amended by the Due Process Protections Act of 2020, to take notice of the following:
Brady v. Maryland, and the decisions that have built upon it establish that, in order to assure protection of the defendant's constitutional rights to due process and a fair trial, the prosecution (i.e., the Government) has an affirmative duty to seek out and provide to the defense all material evidence that is favorable to the accused and that is known to the Government or to federal, state, and local law enforcement personnel and officers who are or have been involved in the investigation or prosecution of the case. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Because this is a backward-looking standard, a "prudent prosecutor will resolve doubtful questions in favor of disclosure."
This duty applies to evidence that affirmatively tends to exculpate the defendant, as well as information that impeaches the credibility of the Government's witnesses at both the guilt and sentencing phases. Even inadmissible evidence may be material if it could lead to the discovery of admissible evidence.
The Government must disclose such evidence to the defense promptly after its existence becomes known to the Government, so as to enable the defense to have an opportunity to make effective use of the evidence in preparing its case and at trial, including a reasonable opportunity to investigate the information. This is a...
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