Section 6.12 No Entitlement to Discovery

• Library: Criminal Practice 2012 Supp

A. (§6.12) No Entitlement to Discovery

Rules 25.01–25.18 apply to all criminal cases and provide that discovery may commence upon the filing of the indictment or information and after arraignment in the court having jurisdiction to try the offense charged. Therefore, discovery does not have to be provided to the defendant until after arraignment in circuit court. In some jurisdictions, the prosecution will provide some or all of the discovery before the preliminary hearing; when this is done, a request for discovery may be filed in the associate circuit division and probably should be to acknowledge this process and the continuing duty to disclose. This discovery request, of course, is not enforceable because Rule 25.01 does not apply at this stage of the proceedings. The prosecution may want to provide discovery voluntarily, before the preliminary hearing, to convince the defendant that sufficient evidence exists to bind the defendant over, thereby obtaining a waiver of the preliminary hearing. If the defendant chooses not to waive the right to a preliminary hearing, the court may constrain counsel from utilizing the discovery to much effect during the hearing, such as confronting a witness with a prior inconsistent statement contained in a report.

Rule 22.09(b) provides for the defense cross-examination of witnesses. When limitations on that right are imposed by the court—e.g., when it finds probable cause has been shown by the prosecutor through direct examination of the state’s witnesses—defense counsel may wish to note their objection to the restrictions as arbitrary, State v. Clark, 546 S.W.2d 455, 462 (Mo. App. W.D. 1976), or to argue that imposing...