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Open discovery: first look

You're representing a defendant who was involved in a bar fight that went seriously bad.  Some punches were thrown, and the next thing you know the loser was on the floor and about four or five guys were stomping the hell out him.  A fractured skull, five days in a coma, and he doesn't come out the other side, so now your client's looking at a murder charge.  Your investigator has gotten a detailed statement from one of the witnesses, and he tells you he has good news and bad news.

"What's the bad news?" you ask, being a glass-half-empty kind of guy.

"Your boy definitely threw the first punch.  And the second.  The third, too, which is when the victim goes to the floor."

"And the good news?"

"He left right after that.  Didn't hang around for the stomping."

So here's the question:  do you turn that statement over the prosecution?

Two years ago, that question would have earned a simple reply from any criminal defense attorney:  "You out of your friggin' mind?"  You know from the police reports that the witness didn't tell the cops about your guy leaving, and you know he's going to be called as witness by the State.  If all of a sudden he "remembers" that your guy participated in the stomping, it sure would be helpful if you had the ability to impeach him with the statement he gave your investigator.

But with the adoption of new CrimR 16, providing for "open discovery," that's changed:  discovery's now a two-way street.  That was the focus of the 2nd District's decision last week in State v. Pierce, the first case to involve the new rules.

Pierce was charged with domestic violence, and on cross-examination of his wife his lawyer began to question her regarding an affidavit she'd submitted to the domestic relations court when she'd pursued a protective order after the incident.  The judge refused to let him do so, mostly because he hadn't given it to the State in discovery.  The prosecutor raised some other issues, too, like whether the statement was extrinsic evidence and could be submitted as substantive evidence.  If that sounds a little confusing, read the narrative in the opinion of the trial court's colloquy with counsel over this whole issue.  It becomes relatively clear that the prosecutor has as much understanding of the evidentiary rules as I do about how to use a belt sander:  just enough to be dangerous.  In fact, the appellate opinion confesses that it's not clear that the judge excluded the evidence as a sanction for violating the discovery rules.

In any event, regardless of the reason for excluding it, it's going to be a problem getting that reversed on appeal, because the standard of review for admission of evidence is abuse of discretion, right?  Well, not really; while there are several thousand cases floating around saying that abuse of discretion "is more than an error of law or judgment," last year, the 2nd District debunked that in State v. Watkins (discussed here), holding that "no court - not a trial court, not an appellate court, nor even a supreme court - has the authority, within its discretion, to commit an error of law."  The Pierce court then draws a nifty conclusion:  if the trial court committed legal error in excluding the cross-examination, that means it was ipso facto an abuse of discretion, because no judge has the discretion to commit an error of law. 

The court concludes that an "error of law" was indeed made.  As for the discovery issue, it begins with the State's contention that Rule 16(A) "makes it clear that the discovery obligations set forth therein 'apply to the defense and the prosecution equally, and are intended to be reciprocal.'"  True that, but the actual discovery obligations are set forth in 16(B), and the relevant one is 16(B)(7), which imposes a discovery obligation with respect to "any written or recorded statement by a witness in the state's case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal."   The short version:  you only have an obligation to disclose statements of people you intend to call as witnesses, and neither side has an obligation to disclose statements that are intended for impeachment purposes.  (These are the discovery rules, of course; the prosecutor has an independent obligation to turn over any Brady material, e.g., statements from witnesses that it doesn't intend to call, but that are exculpatory.)

The problem with the court's analysis is that it assumes that the discovery obligations are set forth in 16(B), and the defendant's obligation is simply the reciprocal of the prosecutor's.  That's not true, though.  The prosecutor's obligations are set forth in 16(B), but the defense's obligations are contained in a separate provision, Division (H) of the rule.  That doesn't affect the outcome in this case:  (H)(5) only requires the defense to turn over written or recorded statements of its own witnesses, and the wife in Pierce wasn't a defense witness.

But let's take another look at our hypothetical murder case.  You have a statement that partially inculpates and partially exculpates your client:  yes, he was there, and he threw some punches, but he wasn't responsible for the stomping, and you're going to argue that the stomping, not the punches, caused the victim's death.  You may very well want to call that witness at trial, and if you do, it's pretty clear that you have to turn over the statement.

Or do you?  Take a look at (H)(3), which provides that the defense has an obligation to turn over

Any evidence that tends to negate the guilt of the defendant, or is material to punishment, or tends to support an alibi. However, nothing in this rule shall be construed to require the defendant to disclose information that would tend to incriminate that defendant.

The reason for that last part is clear:  discovery rules don't trump the fact that a client has a 5th Amendment right not to incriminate himself, and that carries over to the right not to have to disclose inculpatory information.  (It's also based on the fact that no defense attorney in his right mind is going to investigate a case if he has to turn over any inculpatory information he finds out about to the prosecutor.)  You can make a pretty good argument that the last sentence means you don't have an obligation to turn over the statement; after all, it contains inculpatory information.  But you could also make a pretty good argument that there's a difference between information and statement, and that you do have the obligation to tell the prosecutor, "Listen, we took a statement from Joe Doe saying that our guy wasn't there for the stomping."  It's hard to tell how a court's going to resolve that.  In the meantime, Pierce definitely provides solid support for the argument that you don't have to turn over impeachment material.

It's also helpful on the evidentiary issues.  The prosecutor had argued that the statement was -- well, I'm not sure what the argument was.  (See reference to belt sander, supra.)  In any event, the court makes several good points:  when cross-examining a witness about a prior statement, you don't need the witness to deny making the statement in order to introduce extrinsic evidence contradicting her; her claimed failure to recall the statement is sufficient.  The prosecutor had also argued that Pierce waived the issue by not proffering the wife's statement, but EvidR 103(A)(2) specifically says that a proffer is not required "if evidence is excluded during cross-examination."  And the stuff about abuse of discretion... well, if you're doing appeals, you're going to have evidentiary issues probably at least half the time, so keep Pierce handy, because on that point it's gold.

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