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A look at open discovery

Yesterday I wrote that the Supreme Court's considering a modification to the Criminal Rules which would permit "open discovery," i.e., a full exchange of information between the parties in a criminal case, and briefly covered how those rules are changed.  Today we'll take a closer look at some questions and problems that might arise if the rules are adopted.

The goal of open discovery, whether  in civil or criminal cases, is to avoid "trial by ambush"; it's based on the idea that the best way to ensure the legitimacy of trial outcomes is if both parties have the same information.  There are key distinctions between the two kinds of cases, though.  Witnesses in a civil case rarely have to worry about being threatened or killed in retaliation for their testimony.  Civil parties don't have a constitutional right against self-incrimination.  The critical issues in criminal discovery, then, boil down to what information gets shared, and how it gets decided what information doesn't.

Let's start with what gets shared.  Sections (D) and (H) describe what the prosecution and defense, respectively, have to turn over.  Equally important is what doesn't get shared, and the key provision here is Section (J), which specifies that materials subject to work product protection, privilege, or confidentiality, as well as grand jury testimony, are not subject to disclosure. 

The tricky part will be defining what constitutes "work product."  While there's ample case law on the subject in civil cases, there isn't much in the criminal field.  What's more, again, there are substantial differences between the two.  For the most part, statements of witnesses made to lawyers or their agents in a civil case aren't discoverable.  Statements of witnesses to the police (the prosecutor's agents) are expressly made discoverable here. 

One key question that arises is whether statements made to the defense lawyer or his investigator are discoverable, even if they're inculpatory.  Under 16(B)(2) of the present rule, such statements were discoverable only upon the completion of the direct examination of the witness (the same as for prosecution witnesses).  Obviously, an inculpatory statement would never be disclosed, because the defense wouldn't call that witness.  What's more, Section (H)(4) specifically requires the defendant to turn over "all investigative reports," except those protected by Section (J).  The present rule contains no such requirement.  If statements to witnesses aren't regarded as work product, then I think a good argument can be made that the proposed rule requires the defense to turn over theirs, even if they're inculpatory.

There are various other limitations on what's discoverable sprinkled throughout the rules.  Section (C) allows the prosecutor to designate any materials subject to discloure as "counsel only."  Although no standards are provided for determining when such a designation is appropriate, the provision is fairly toothless, given that  defense counsel can "orally communicate" the contents of the "counsel only" material. 

More troublesome is Section (D)(4), which flatly exempts from disclosure "the statement of a child victim of a sexually oriented offense under the age of 13."  The reason for this provision is unclear, and although defense counsel gets to "inspect" the statement at the time of the review hearing -- more on that in a minute -- there's no provision for allowing defense counsel to use the statement for impeachment at trial.

Let's take a look now at how it gets decided that certain information will not be shared, and who gets to decide that.  The prosecutors' objection to open discovery has been based on a fear that disclosure will result in intimidation or retaliation against witnesses.  While there might be some basis for that concern, given that the present rules require the State to provide the defense with names and addresses of witnesses, the new rules wouldn't present any more problem in that regard than the present ones.

The present rules contemplate a situation where the prosecutor would not want to disclose such information because he has concerns about the witness' safety, and deal with it through Section (E)(1):  basically, the prosecutor can go to the judge with a written statement explaining why he doesn't want to disclose certain information, the judge reviews it ex parte, and decides whether to grant it or not.  The proposed rule contains a much more extensive procedure:  under Section (D), if the  prosecutor doesn't want to disclose something, he can certify to the court what it is and why he doesn't want to dislcose it.  Upon the defendant's motion, the court conducts an in camera hearing seven days before trial, with counsel participating.  The court can order disclosure only if it determines that the prosecuting attorney has abused his discretion in refusing to disclose the information.  Unlike the present situation, that ruling is appealable by the prosecution; one of the other proposed rules changes is to 12(K), allowing an interlocutory appeal.

The standard for abuse of discretion -- unreasonable, arbitrary, and capricious -- is a difficult one to meet, as any appellate lawyer knows.  There's a kicker here, though:  Normally, a judge's rulings on discovery are reviewable only for abuse of discretion.  Should a discovery order be appealed by the prosecutor, this would lead to the somewhat amusing scenario whereby the court of appeals would determine whether the judge had abused her discretion in deciding that the prosecutor had abused his. 

So what's the bottom line?  I've got some serious concerns about the treatment of statements of the alleged victims in child sex cases; those cases are difficult enough without the added problem of not being able to use prior statements to impeach.  I've got a good bit more concern about whether inculpatory statements taken by defense attorneys or investigators has to be turned over.

There's some kinks to be worked out, but on balance, this is a tremendous step forward.  A number of people spent a lot of time working to bring this about, both in the defense bar and the prosecutors' side.  They should be congratulated.


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