I don't like to present a defense when I'm trying a case. If I do my job right, I've inculcated in the jury the need to view every one of the prosecution's witnesses with a jaundiced eye, to look for contradictions, inconsistencies, things that run contrary to common sense. But then if I put on witnesses, the jury does the same thing with them. Plus, your witnesses often aren't very good: there's Momma, to testify that she and junior were sitting on the couch watching Sanford and Son reruns while he was supposedly pistol-whipping three people in an armed robbery across town, or Junior himself, to testify that, sure, he's got five prior felony convictions, but in each of those cases he pled guilty because he'd done it, and here he's taking it to trial because he didnt' do it... well, good luck with all that.
But every now and then, you're in a position where you need to put witnesses on the stand, so if you're going to do it, you better do it right. And that means telling the prosecutor who those witnesses are going to be. As the 8th District's decision last week in State v. Fussell demonstrates, failure to do so can have some serious consequences.
The case started as a neighborhood dispute and wound up with one of the more curious phrasings of an indictment for felonious assault against a peace officer by use of a deadly weapon "to-wit: microwave oven." No, Fussell didn't try to stick one of the officers in the over, she tossed it at her from a second-floor porch.
The problem in the case first arose on the day of trial, when the defense attorney tried to present his witness list to the prosecutor right before jury selection. She objected, claiming that he hadn't responded to discovery, and the trial judge commented that the response was "a little late." That it was; the State had filed its discovery request two months earlier. The judge indicated he'd take the issue up when it was presented. When the time came for the defense to present its witnesses, the prosecutor again objected, contending that she still didn't have the list -- for whatever reason, after she objected to it before voir dire, defense counsel didn't given it to her. The defense responded that most of the witnesses were other family members who were present at the time, and that the prosecutor knew about this; in fact, several of the witnesses were on the prosecutor's list, too. The ultimate result was that the defense was only allowed to call witnesses that had been on the prosecutor's list.
The majority in Fussell first notes that this case came just prior to the adoption of the new open discovery rules last year, while the dissent argues that although the discovery request was filed just before adoption, the case was tried afterwards. This doesn't really matter; the old rule's requirement under 16(C)(1(c) that the defense must furnish a list of witnesses is retained by 16(I) in the new rule.
So what was the problem with the trial court's exclusion of the witnesses? The court begins with the seminal case on discovery, Lakewood v. Papadelis. In fact, that case is pretty much dispositive. There, the trial courty had also excluded the defendant's witnesses because he failed to respond to the prosecutor's discovery. The 8th District had reversed because the prosecution had failed to file a motion to compel the discovery, but the Supreme Court said that wasn't necessary. It then focused on the sanction the judge had chosen, noting that this infringed on the defendant's constitutional right to present a defense. That doesn't mean the defense can ignore discovery requests. What it does mean is that before the trial court can exclude witnesses, it must hold a hearing to determine whether that drastic a sanction is appropriate.
The Fussell court lists the factors to be considered at the hearing:
(1) the extent of surprise or prejudice to the state; (2) the impact exclusion of the witness would have on the evidence and the outcome; (3) whether the violation was in bad faith; and (4) the effectiveness of less severe sanctions.
As with most lists like this, drawn up by courts and legislatures, it sounds good and seems to have been the product of careful thought and analysis. And, as with most lists, it's essentially meaningless. The critical factor is the last one: if there's a less severe sanction available, the judge better pick it, regardless of the other factors. Here, the problem was that the judge didn't even hold a hearing, or give any indication that he'd considered any lesser sanctions. The majority notes that the problem was raised even before the jury had been selected, and that
a short continuance would have been minimally disruptive. It also would have allowed the state an opportunity to obtain background information and prepare accordingly. At the same time, it would have permitted Fussell the opportunity to present testimony that might have been determinative to the outcome of her case.
It's tempting to suggest that the result in Fussell is was dictated by the fact that the judge didn't consider any lesser sanctions, and that lesser sanctions were in fact available. If the situation were otherwise -- say, the defense made no attempt to advise the prosecution of its witnesses until it began calling them to the stand -- Fussell wouldn't preclude the trial court excluding the witnesses because of the failure to comply with the discovery requirements of disclosing them. I'm not so sure. The majority opinion is larded with quotes about the defendant's rights, and its concession that complete exclusion can be an appropriate sanction is a grudgingly narrow one: exclusion is permissible "as long as it would not completely deny the defendant his constitutional right to present a defense." Try to envision a scenario in which not permitting the defense to call any witnesses wouldn't deny the defendant that right. I'm trying to, and I'm drawing a blank.
That's the focus of the dissent, which argues that the new rule was intended to abolish the old "trial by ambush" that had long prevailed in criminal trials, and that "by allowing or requiring a trial court to use a lesser sanction when dealing with noncomplying parties, the new rule is effectively gutted." There's some basis for that; the the new rules did create a reciprocity that didn't exist before, imposing a duty on the defense to turn over evidence as well. The dissent doesn't approach it from a partisan viewpoint: it notes that while this case involves the defense's failure, "the majority's rationale could easily be applied to a prosecutor's failure to disclose information in the future."
That's a tough sell: the prosecution doesn't have the same constitutional right to present its case that the defense does. And the argument that zero-tolerance policy for discovery violations is now warranted is undercut by the fact that the provision in the new rule for failure to comply is identically worded to its analog in the old one: the judge is vested with broad discretion, from granting a continuance to allow discovery and inspection, to prohibiting introduction of the evidence, or making "such other order as it deems just under the circumstances."
The net result of Fussell is that, at least in the 8th District, no trial judge is going to exclude defense witnesses as a discovery sanction except in the most extreme cases, and maybe not even then. That might not seem fair to prosecutors or the dissent, but like the man said, fair is where your pig wins a ribbon.