Reciprocal discovery violations: visiting the sins of the defense lawyer on the innocent client.

• Author: Myers, Therese M.

1. INTRODUCTION II. RECIPROCAL DISCOVERY

   1. Definition

   2. Underlying Policy Goals

   3. Expansion III. RECIPROCAL DISCOVERY VIOLATIONS

   1. Judicial Response

   2. Problems with the Judicial Response IV. PROPOSAL: A DISCIPLINARY RESPONSE

   1. Independent Ethical Duty to Comply with Reciprocal

      Discovery Violations

   2. Disciplinary Sanctions

   3. Advantages of a Disciplinary Response

   4. Recommendations

      1. Use a Preventive Approach

      2. Implement an Automatic Reporting System

      3. Set Up a Uniform Recordkeeping System V. CONCLUSION

1. INTRODUCTION

   Frank Wilmoth was accused of committing improper sexual acts with four mentally retarded, adult patients who lived with him and his wife. At trial, Mr. Wilmoth sought to call a vital witness, Dr. David Miller, who would testify that Mr. Wilmoth was impotent, contradicting the testimony of one victim and making the alleged crimes impossible.(1) The trial court refused to let Dr. Miller testify because Mr. Wilmoth's lawyer had violated Ohio's discovery rules(2) by failing to provide the prosecution with Dr. Miller's name before trial.(3) Mr. Wilmoth was convicted.(4)

   Discovery violations are not a new phenomenon.(5) In the area of civil discovery, judges have imposed severe discovery sanctions including fines and fee awards, contempt orders, preclusion orders, and dismissals.(6) Furthermore, in 1983 Congress amended the Federal Rules of Civil Procedure in an effort to curb civil discovery abuse. Rule 11 requires courts to impose mandatory sanctions for discovery violations.(7) This highly controversial rule was amended in 1993 to make the sanctions less automatic. Currently, the Republican Contract with America seeks to reinstate mandatory sanctions.(8) In the area of criminal discovery, on the other hand, little has been done in a broad, uniform manner to curb violations. Perhaps because criminal law often develops in state courts, criminal discovery has not received the same attention that federal issues often receive.(9)

   Reciprocal discovery rules require a criminal defendant to disclose information to the prosecution. Over the past decade, many states have enacted such rules, and thus a uniform approach in addressing violations is required.(10) In addition to the duty to comply with specific state laws adopting reciprocal discovery rules, defense attorneys have an independent ethical duty to comply with discovery obligations. (11)

   Part II of this Note defines reciprocal discovery, explains its underlying policy goals, and traces its expansion in American criminal law. Part III focuses on the courts' response to reciprocal discovery violations and examines the problems inherent in the judicial response. Part IV proposes a disciplinary response toe discovery violations and explores the advantages Of such a response.

2. RECIPROCAL DISCOVERY

   1. Definition

      Discovery refers to the pretrial procedural rules that require disclosure about one's case, in varying degrees, to the opposing side. In criminal cases, until quite recently, discovery by either side was extremely limited. Such was the state of affairs in 1963 when Justice William Brennan lectured at the Washington University School of Law. Justice Brennan advocated allowing criminal defendants to discover information about the prosecution's case.(12) States finally began to embrace criminal discovery in the mid-1960s and 1970's. Even then, however, criminal discovery was a one-way street: states required only that the prosecution disclose information to the defense.(13) Since then, states have broadened criminal discovery to require that the defendant reciprocate in discovery. That is, if the defense asks for and obtains discovery from the prosecution, it must disclose relevant information to the prosecution. Some states now require disclosure from the defendant regardless of whether he obtains discovery from the prosecution.(14)

      The scoped of reciprocal discovery--what the defendant must disclose--varies from state to state.(15) Most states have notice-of-alibi rules that require the defendant to disclose to the prosecution specific information about the defendant's location at the time the crime was committed as well as the names and addresses of all alibi witnesses he intends to call at trial.(16) Some states require the defendant to notify the state if he plans to enter an insanity defense,(17) and others require him to turn over all mental and physical examinations if he plans to assert an insanity defense.(18) In addition, other states require defense disclosure of one or more of the following items: physical evidence for inspection and/or copying,(19) names and addresses of all witnesses the defendant intends to call at trial, (20) witness statements, (21) and medical and scientific reports.(22) If there is a legitimate reason why the defendant should not disclose particular information to the prosecution, the court may grant the defendant a protective order(23) or may order excision of any inappropriate information.(24)

   2. Underlying Policy Coals

      Because an alibi can be so easily fabricated, notice-of-alibi rules were enacted to protect states from an eleventh-hour defense.(25) Disclosure of scientific or expert testimony is intended to ensure that the prosecution will have ample opportunity to prepare a response before trial.(26)

      The determination of truth is the main policy underlying reciprocal discovery--to ensure that truth, rather than surprise or maneuver, determines the outcome of the trial.(27) Justice Traynor summarized this policy when he wrote that "[t]he truth is most likely to emerge when each side seeks to take the other by reason rather than by surprise."(28) The idea is that discovery will enable each side to consider carefully and investigate the evidence before trial. The result will be well-prepared lawyers with questions carefully crafted to test what, at first glance, may look like "truth." Conversely, when a party springs information on the opposing side at trial, the information will not be subjected to thorough cross-examination, and the jury may conclude incorrectly that the information is true.(29)

   3. Expansion

      State and federal jurisdictions have continued the trend toward expanded pretrial discovery in criminal cases. In 1990, a majority of California residents voted to adopt the Crime Victims Justice Reform Act (Proposition 115)(30) under which defense counsel is required to give the prosecution a list of witnesses the defense intends to call at trial, as well as witness statements.(31) More recent examples of reciprocal discovery expansion include Georgia(32) and Michigan,(33) both of which enacted reciprocal discovery laws that became effective on January 1, 1995.

      The Michigan law illustrates the breadth of recently-enacted reciprocal discovery laws. It requires the defendant, upon request, to disclose to the prosecution all of the following information: names and addresses of all (lay and expert) witnesses; written or recorded statements by lay witnesses; any report of any kind produced by or for an expert witness; any criminal record that the defendant intends to use at trial to impeach a witness; any document, photograph, or other paper; and a description of and opportunity to inspect any tangible physical evidence.(34)

      The Federal Rules of Criminal Procedure were amended in December 1993 to provide for reciprocal discovery. Rule 16 now provides that if the defendant requests disclosure about the government's expert witnesses and the government complies, the government is entitled to similar reciprocal discovery.(35) In April 1994 the Advisory Committee on the Federal Rules of Criminal Procedure recommended approval of another amendment to Rule 16 that would broaden criminal discovery even further. The amendment provides for reciprocal discovery of defense witnesses' names and statements if the defendant requests them from the government.(36) The new amendment also would require the defendant to disclose information about the expert witnesses she will rely on if using an insanity defense under Rule 12.2.(37)

      Noting this trend in the law toward expanded pretrial discovery in criminal cases, the American Bar Association (ABA) recently made significant changes to its Discovery Standards for Criminal Justice.(38) The 1994 Standards not only broaden what the prosecution may obtain from the defense, but they embrace mandatory disclosure. The former 1980 Standards permitted prosecutorial discovery of minimal information about the defendant's person, such as fingerprints and handwriting exemplars.(39) The prosecution could obtain expert medical and scientific reports only if the defendant requested and obtained discovery from the prosecution.(40) Additionally, the 1980 Standards required the defense to disclose information regarding alibi or insanity defenses only if the prosecution asked for that information.(41)

      In contrast, the 1994 Standards require the defense to disclose to the prosecution and permit inspection, copying, testing, and photographing of documents and tangible objects.(42) The defense also must disclose the names and addresses of all witnesses the defense intends to call at trial, together with all written statements of such witnesses that are within the possession or control of the defense that relate to the subject matter of the testimony of the witnesses.(43) Further, under the 1994 Standards, the defense must disclose any reports or written statements of experts that the defense intends to call at trial, including the results of physical or mental examinations, scientific tests, experiments, and comparisons the defense intends to offer as evidence at trial, regardless of whether the defense requested and obtained discovery from the prosecution.(44) The 1994 Standards also require the defense to furnish a curriculum vitae and written description of the substance of the proposed testimony of the expert, the expert's opinion, and the underlying basis of that opinion.(45)

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