"the Judge Said, "son, What Is Your Alibi ...?" a Survey of Alaska Criminal Discovery Principles

• Citation: Vol. 26
• Publication year: 2009

§ 26 Alaska L. Rev. 47. "THE JUDGE SAID, "SON, WHAT IS YOUR ALIBI ...?" A SURVEY OF ALASKA CRIMINAL DISCOVERY PRINCIPLES

Alaska Law Review
Volume 26, No. 1, June 2009
Cited: 26 Alaska L. Rev. 47

"THE JUDGE SAID, 'SON, WHAT IS YOUR ALIBI . . . '" A SURVEY OF ALASKA CRIMINAL DISCOVERY PRINCIPLES

BY JAMES FAYETTE ^[*]

ABSTRACT

In this Article, the Author provides a general overview of the Alaska law of criminal discovery. The Article first discusses the prosecutor's discovery obligation and then discusses the major aspects of Rule 16 of the Alaska Rules of Criminal Procedure and how Alaska courts have interpreted these provisions. The final part of the Article discusses a variety of issues commonly encountered by criminal law practitioners, including discovery of juror information, the timing of discovery disclosures, and information the prosecution is not required to disclose.

TABLE OF CONTENTS

INTRODUCTION........................................................49

I. THE PROSECUTOR'S DUE PROCESS DISCOVERY OBLIGATIONS AND ETHICAL OBLIGATIONS.............................. 51

A. Constitutional Sources of the Prosecutor's Discovery Obligation........................ 51

B. A Prosecutor's Ethical Duty: Alaska Rule of Professional Conduct 3.8(d)............................. 52

II. A SURVEY OF CRIMINAL RULE 16: WHAT DISCLOSURE IS EXPRESSLY REQUIRED BY ALASKA'S CRIMINAL PROCEDURE RULE?............................................................ 53

A. Witness Identity, Statements, and Criminal Conviction Records..........................................................................................54

B. Government Expert Disclosure..................................................61

C. Informant and Surveillance Information..................................63

D. All Exculpatory Evidence ...........................................................64

E. The Extent of the Prosecutor's Obligation................................64

F. The Defense Power to Compel Production of Favorable Information...................................................................................66

G. Search, Seizure, and Witness "Relationship" Information...................................................................................67

H. The Discovery Obligation Does Not Extend to the Prosecutor's Work Product ........................................................68

III. WHAT INFORMATION MUST THE DEFENSE GIVE THE PROSECUTOR? CRIMINAL RULE 16(c)...................................................69

A. Non-testimonial Identification...................................................70

B. Defense Expert Disclosure..........................................................70

C. Notice of Defenses .......................................................................73

D. Physical Evidence ........................................................................75

IV. REGULATION OF DISCOVERY: CRIMINAL RULES 16(d) AND 17............77

A. Neither Side May Instruct Witnesses Not to Speak to the Opposing Party ............................................................................77

B. Neither Party May Ignore Its Continuing Discovery Obligation .....................................................................................77

C. Neither Party May Freely Disclose Certain Discovery Information to Third Parties ......................................................78

D. The Court Retains Broad Discretion to Limit or Defer Discovery ......................................................................................79

E. Subpoena Power ..........................................................................81

V. PRACTICE ISSUES....................................................................................81

A. Juror Information.........................................................................82

B. Timing of Disclosure ...................................................................82

C. Is There Anything a Prosecutor May Refuse to Disclose? .....84

1. The Defense Is Not Entitled to the Prosecution's Witness List (and the Prosecutor Should Not Expect One From the Defense)..............................................................................84

2. The Defense Is Not Entitled to Force the Prosecutor to Distinguish Between Case-in-Chief and Rebuttal Witnesses .................................................................................86

3. The Defense Is Not Entitled to the Prosecutor's Written List of Questions to Anticipated Witnesses .............................86

4. The Defense Is Not Entitled to Discovery of the Prosecution's Chief Investigating Officer's Notes Made During Trial in the Courtroom................................................87

5. The Defense Is Not Entitled to the Prosecutor's Pre-trial Interview Notes of Witness Interviews-as Long as the Witness Statements are Inculpatory, and the Substance Has Already Been Disclosed ....................................................88

6. The Defense Is Not Entitled to Broad, "Anticonstitutionalist" Discovery ....................................................88

7. The Defense Is Not Entitled to Have the Prosecution Gather Information for It .........................................................89

8. Defense Fishing Expeditions ....................................................91

9. Police Officer Personnel Records and Misconduct ..................93

D. Procedural Consequences of Discovery Practice ....................94

1. Pre-trial Motions to Compel Discovery Toll Rule 45 ..............94

2. The Defense Remedy for a Perceived Discovery Violation Is a Continuance or a Mistrial-Rarely Suppression, Striking Testimony, or Preclusion ...........................................94

CONCLUSION.......................................................... 96

INTRODUCTION

Modern criminal law practitioners cannot approach the subject of pre-trial discovery without acknowledging a debt to the late Supreme Court Associate Justice William Brennan. In an influential 1963 lecture, Justice Brennan argued that defense discovery should be expanded to help turn the criminal trial from a sporting contest into a search for the truth. ^[1]

Justice Brennan's call for expanded pre-trial discovery has prevailed in Alaska criminal practice, at least for the defense bar. In Alaska state courts, criminal defendants have far broader rights of pretrial discovery than do those in federal courts. However, in day-to-day Alaska state criminal practice, discovery disputes are still common. ^[2]

Disputes over discovery scope, timing, and sufficiency are daily topics in Alaska state court pre-trial hearings. This survey of Alaska's criminal discovery court rules and case law is intended as an aid to our criminal bench and bar. As with my previously-published survey of Alaska self-defense law, this survey is a practitioner's guide. Aside from a few practical suggestions, there is no normative argument presented here. My intent is to provide criminal law practitioners and the criminal bench with a fairly comprehensive survey of court rule and case law authority that defines the scope of both prosecutors' and defense attorneys' criminal discovery obligations.

This survey is organized as a section-by-section survey of Alaska's primary discovery court rules followed by a topical survey. Part I briefly surveys the sources of the prosecutor's discovery obligations. Parts II, III, and IV examine Rule 16 of the Alaska Rules of Criminal Procedure. These sections collect and annotate significant reported and unreported ^[3] appellate opinions that have interpreted each subsection. Part V is a topical survey of commonly encountered issues that appear in practice.

I. THE PROSECUTOR'S DUE PROCESS DISCOVERY OBLIGATIONS AND ETHICAL OBLIGATIONS

The place to begin any examination of a prosecutor's due process and ethical responsibilities is Justice Sutherland's oft-quoted description of the role of a prosecutor:

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. ^[4]

A. Constitutional Sources of the Prosecutor's Discovery Obligation

A prosecutor's obligation to disclose exculpatory information to a criminal defendant is not rooted in state or federal court rules, but rather in the Due Process Clause of the Fifth Amendment. A defendant's constitutional right to prepare and present a full defense at trial entitles him to disclosure of exculpatory and impeachment evidence. ^[5]

In Brady v. Maryland, ^[6] the defendant and his accomplice were found guilty of murder in the first degree and were sentenced to death. ^[7] They were convicted at separate trials. ^[8] At his trial, Brady testified and admitted his participation in the crime but claimed that his accomplice was the actual killer. ^[9] Prior to Brady's trial, his lawyer demanded to examine his accomplice's police statements. ^[10] Several were...