Sidestepping Scott: Modifying Criminal Discovery in Alaska

CitationVol. 15
Publication year1998

§ 15 Alaska L. Rev. 33. SIDESTEPPING SCOTT: MODIFYING CRIMINAL DISCOVERY IN ALASKA

Alaska Law Review
Volume 15
Cited: 15 Alaska L. Rev. 33


SIDESTEPPING SCOTT: MODIFYING CRIMINAL DISCOVERY IN ALASKA


Cameron J. Williams(fn*)


I. INTRODUCTION

II. NEMO TENETUR SEIPSUM PRODERE: EVOLVING STATE CONSTITUTIONALISM AND THE RIGHT AGAINST SELF-INCRIMINATION

A. ABA Standards for Reciprocal Discovery

B. California as a Reciprocal Model

III. THE IMPEDIMENT TO RECIPROCAL DISCOVERY IN ALASKA: SCOTT V. STATE

IV. ATTEMPTS AT REFORM

A. Efforts from the Judiciary

B. Efforts from the Legislature

C. Current Law

V. LOOKING TO OTHER STATES' MODELS FOR FUTURE EFFORTS

A. Difficulties in Adopting the California or ABA Models

B. North Dakota and Florida as Possible Opt-In Models

VI. CONCLUSION

FOOTNOTES

I. INTRODUCTION

While the rest of the nation has moved gradually toward expanded criminal discovery, [1] the State of Alaska remains behind. The national move has embraced various forms of reciprocal discovery, which provides for the liberal exchange of information between the prosecution and the defense. [2] In its purest form, recip- [*pg 34] rocal discovery is a "two-way street" wherein the parties exchange before trial virtually all information short of the attorneys' work product. A modified form of reciprocal discovery often referred to as "opt-in" reciprocal discovery provides greater discovery to the prosecution but only if the defendant chooses to participate. The growing acceptance of reciprocal discovery reflects a concern for fair criminal trials. Generally, without reciprocal discovery, the defense has access to more information than does the prosecution, which directly hinders the prosecution from putting on as strong a case as possible. Reciprocal discovery systems aim to rectify this imbalance by providing the prosecution with greater discovery access to the defendant's information. [3]

Alaskan jurisprudence has never adopted any form of reciprocal discovery. Impeded by the Alaska Supreme Court's decision in Scott v. State, [4] mandatory disclosures by the defendant have been curtailed to such an extent that true reciprocal discovery is impossible. [5] The legislative attempt to enact reciprocal discovery was ultimately unsuccessful because the reform initiative, Chapter 95, was found to violate the Scott holding and was therefore ruled unconstitutional by the Alaska Supreme Court in November of 1997. [6] A judicial committee initiative to expand criminal discovery does not reach the level of traditional reciprocal discovery and has yet to be tested in Alaska courts.

At the heart of the debate in Alaska is how the legislature may expand criminal discovery between the prosecution and the defense while remaining consistent with the Scott holding. This Note suggests that an "opt-in" reciprocal discovery system is desirable for its fairness and even-handed application of the law while still respecting the Scott holding. The passage of legislation in the Alaska legislature (although later found unconstitutional) indicates popular support exists for such discovery reform. Part II of the Note provides a historical background of the right against self-[*pg 35] incrimination and examines models of expanded criminal discovery. Part III analyzes the Scott holding, focusing on the constitutional difficulties any reciprocal discovery system will face in Alaska. Part IV introduces past Alaskan judicial and legislative attempts to modify criminal discovery, analyzes their conflict with the Scott holding, and examines and critiques the version of Criminal Rule 16 currently in effect. Part V looks to other jurisdictions for models of reciprocal discovery that would still satisfy the Scott holding and concludes that an "opt-in" regime is the most appropriate way for Alaska to reform criminal discovery.

II. NEMO TENETUR SEIPSUM PRODERE [7] : EVOLVING STATE CONSTITUTIONALISM AND THE RIGHT AGAINST SELF-INCRIMINATION

Few rights in the Western legal tradition have as prominent and erratic a history as the right against self-incrimination. From the courts of the Anglican Church to the proceedings of the Star Chamber, legal authorities and scholars have debated the extent to which persons should be compelled to testify against their own interests. [8] During the founding of our nation, George Mason lobbied the Constitutional Convention to include in the original Constitution a bill of rights that would have embraced protections against self-incrimination, modeled after rights already guaranteed under the Virginia constitution. [9] When Mason's efforts failed, James Madison, in the 1789 Congress, supported calls to establish a right against self-incrimination in any context, including civil matters. [10] In its final form, the Fifth Amendment to the U.S. Constitution states that no person "shall be compelled in any criminal case to be a witness against himself." [11] Article I, section 9 of the Alaska Constitution contains virtually identical language. [12] The Alaska Supreme Court has recognized that the drafters of the Alaska Constitution looked to the federal Constitution as a model, intending section 9 to guarantee the liberties then available under the U.S. Constitution. [13]

[*pg 36] The right against self-incrimination however is not the only protection against governmental abuse afforded the accused. The accused citizen also is entitled to a fair, meaningful trial as a matter of due process. [14] Inherent to a meaningful trial is access to information, particularly the defendant's access to the prosecutor's information through discovery. [15] Protection from self-incrimination and the assurance of a fair trial often act in concert with each other, ensuring the accused a fair, informed adjudication. How these constitutional protections delimit the process of criminal discovery, however, is far from a determined and static concept in American jurisprudence. In particular, the amount of discovery that the defense must disclose to the state is an evolving debate.

Difficulties arise when important liberties, such as the right against self-incrimination, operate in varying degrees and on multiple standards. The Tenth Amendment to the federal Constitution includes a truism regarding sovereignty for the states: "powers not delegated to the United States, . . . nor prohibited by it to the [s]tates, are reserved to the [s]tates respectively, or to the people." [16] The Bill of Rights was originally intended to preclude federal interference with protected rights. [17] Thus, the states were limited only to the extent that similar provisions were written into their individual state constitutions. However, the Fourteenth Amendment's Due Process clause, enacted during Reconstruction, has been interpreted to apply most provisions to the states; this incorporation has continued gradually until nearly all liberties found in the Bill of Rights have been applied to the states. [18]

To the extent that a federal right has been extended to the states through the Fourteenth Amendment, the federal courts' interpretation of the right becomes a baseline, or a bare minimum amount of protection that the states must provide. However, a higher standard may be adopted by states if they so choose. [19] In [*pg 37] essence, the states may extend greater rights to their respective citizens if they find the federal baseline to be insufficient. Many consider an expansion of rights at a state level consistent with, if not vital to, the concept of federalism. [20] When a state elects to expand its citizens' rights beyond the federal baseline, it must then decide to what extent it will rely upon federal judicial decisions in interpreting the state's constitutional stance. [21]

Criminal discovery is an example of this melange of federal baselines and state expansion of rights. In the early 1970s, the criminal justice system began to experience a revolution of sorts, particularly as to the rights of the accused. [22] During that time, the American Bar Association ("ABA") adopted and the Federal Rules of Criminal Procedure codified different versions of reciprocal discovery. While the ABA Discovery Standards did not insist upon the defendant's participation, it provided for an opt-in component that permitted broader disclosure from the prosecution to the defendant only if the defendant agreed to reciprocate with similar disclosure. [23] The revised Federal Rules of Criminal Procedure specifically sought to expand defense disclosure by mandating reciprocal discovery. [24] The defendant had no choice in discovery [*pg 38] format. In both systems, however, the goal was fairer, more balanced discovery under which constitutional rights were preserved, and the government received the information it needed to prosecute the defendant fully and fairly.

Various states adopted aspects of this new view of discovery, and some states began to push beyond the federal norms. For example, the State of Florida required that defendants give notice of an alibi defense. [25] Although the federal rules did not require the disclosure of alibi witnesses, in a challenge to the constitutionality of the Florida rule, the U.S. Supreme Court upheld the statute against a claim of Fifth Amendment privilege. [26] Elsewhere, states continued to expand discovery requirements, a movement that culminated in the ABA...

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