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Discovery and inconsistent statements

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You've got a date rape case.  Your client Dave and the alleged victim have a rather tumultuous history, and he swears to you that she made this up just to get even with him for... well, whatever.

You send your investigator out to get a statement from Shanna, the other half of this grotesquely dysfunctional couple, and sure enough, it's pure gold.  Forcible rape has now turned into sorta rough make-up sex, and yeah, if she hadn't been so upset with Dave for sleeping with that whore Linda and hadn't been so drunk, she never would have told the cops what she told them that night. 

Here's the question:  do you have to turn that statement over to the prosecutor?

There's a good argument you don't.  CrimR 16(H) is what describes a defendant's discovery obligations, and (H)(5) says you have to turn over "any written or recorded statement by a witness in the defendant's case-in-chief, or any witness that it reasonably anticipates calling as a witness in surrebuttal."  But Shanna is a State's witness.  The rule clearly provides that you're only obligated to turn over statements of your own witnesses.  And there's a case on this "on all fours," as we say in the legal biz (although that has a much different meaning in the porn biz):  the 2nd District's decision in State v. Pierce.   Pierce was charged with domestic violence, and tried to cross-examine his wife with statements she made in domestic relations court.  The judge refused to let him do it because he hadn't turned the statement over to the prosecution, but the 2nd District reversed, holding there's no duty to disclose any statements besides those of your own witnesses.

Now, you could make an argument that you have to look at (H)(3), which was added as part of the new open discovery rules, and says that the defense must turn over "any evidence that tends to negate the guilt of the defendant, or is material to punishment, or tends to support an alibi."  But a prior inconsistent statement isn't evidence.  It's not submitted to the jury, and it's not substantive proof of anything, other than that the witness made statements which were contradictory in some relevant detail.  Plus, there's a principle of statutory construction that the specific controls over the general, and if the rule says specifically that you have to turn over statements of your witnesses, then those are the only statements you have to turn over.

That's the legal argument.   But the really smart guys will realize that there's a huge practical aspect to this.  First, you may have a judge who's nodding in agreement while the prosecutor babbles about discovery now being a "two-way street," and what I and the 2nd District think about all this could not be of lesser significance to him.  If he rules that you can't use the statement because you didn't give it to the prosecutor, maybe you get that reversed on appeal, but that's not going to be much solace to Dave while he sits in prison for a year.

Especially since -- and this brings the smart guys to point two -- you might have gotten rid of the whole thing if you'd turned the statement over.  The prosecutor's got a reluctant witness anyway, and this just blows up his case.  You did him a favor, sparing him the prospect of sitting in trial for three days while you beat him like a drum. 

Plus, there's an issue of trust.  You're going to have a much tougher time with that prosecutor the next time around if you didn't give him the statement, then beat him like a drum for three days in trial. 

See, the really smart guys realize that open discovery wasn't just a rules change, it was a new way of doing business.  Discovery might not have the same number of lanes running in each direction -- for various reasons, the State's discovery obligation will always be greater than ours -- but it is a two-way street.  If you're more open with prosecutors, they'll be more open with you.  A plea bargain is a contract, and like all contracts, it's more likely to be fair if both parties have full access to all the information.  Your duty is to get the best outcome for your client, and in many cases, giving the prosecutor the inconsistent statement will help accomplish that.  The more aware the prosecutor is of the weaknesses in her case, the better deal you're likely to get.

That doesn't mean you always have to turn it over.  Your statement may be not be gold; maybe some inconsistency in one of the eyewitnesses' testimony, nothing that's going to have a significant impact on the plea offer.  Plus, if you disclose the statement, the prosecutor may decide not to call that witness at all, and just go with the other two eyewitnesses.  Maybe your client simply can't plead because of the collateral consequences, like sex registration or losing a license.

Or maybe you're dealing with the kind of inconsistency that can be patched up, if given enough time. 

I've found that very few lay witnesses are capable of handling the mental stress of cross-examination.  They've got no experience with it, they're nervous, they don't think well on their feet.  You give someone a couple of days to figure out how to get around what he said in a prior statement, especially with a little help from a prosecutor, and he might be able to do it.  He's not going to be able to do it if the first time he learns you know about it is when he's on the stand.

Ninety-five percent of the time, the smart guys are going to be right; we should turn the statement over.  But I don't think you have to go so far as say that we must turn it over.  The prior inconsistent statement is one of the most powerful weapons in a trial lawyer's arsenal.  There are very few things more damaging to the credibility of a witness than for the jury to find out that he told someone else something different from what he told them.  We only have to persuade the jury that there's a reasonable doubt of our client's guilt, and blowing up a state's witness goes a long way toward doing that.  You have to be real careful, especially now, in how you use that weapon, but it's one that I think we need to have handy.

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