Discovery

The Fifth Amendment right against compulsory self-incrimination is clearly implicated by the requirement that the defendant provide a statement to the prosecution. Discovery rules generally steer clear of such requirements, but defense communication is required in connection with discovery for the insanity defense and related defenses where the defendant intends to introduce expert testimony based on direct communications with the defendant. When using such expert testimony, rules in most jurisdictions require the defendant to submit to an examination by another mental health expert or be barred from calling the defense expert. While the precise theory under which this requirement satisfies the privilege against compulsory self-incrimination is unclear, the most appropriate theory is the waiver of the right. By introducing the defense expert's testimony based on communications with the defendant, the defendant effectively waives the right to remain silent. The defendant is allowed to introduce his or her own communications through an expert, and in return, the discovery rules require access to communications from the defendant by other nondefense experts. Rules of this sort have been uniformly upheld.

In addition to the Williams analysis that the privilege is not violated by merely advancing the time of disclosing a defense because such is not compelled within the meaning of the Fifth Amendment, the privilege is also not violated if the disclosure is not communicative or if the communication is not otherwise compelled. Communication is involved, of course, when a defendant is required to speak. However, when a defendant has at an earlier time voluntarily written a document, the prosecution's use of that document at trial does not violate the privilege because the defendant was not compelled to make the statement. This is true even though the statement is both incriminating and communicative. As a result, use of statements previously generated does not typically violate the privilege. For related reasons, use of documents containing information that came, not from the defendant, but from others does not violate the defendant's privilege.

In a very limited area, the privilege may be violated by the compelled production of documents, which occurs if the "act of production" itself is communicative. The Fifth Amendment is implicated if producing the document authenticates it, shows the defendant had possession of it, or establishes its existence (Fisher). Most discovery avoids these types of problem or involves documents as to which the communicative aspect is already a "foregone conclusion" (Nobles), and thus the privilege is not violated.

Open constitutional issues, however, remain in a several isolated areas. Where the defendant is required during discovery to provide information that the prosecution could use to prove guilt as part of its case-in-chief, the discovery requirement may be invalid. The other major open issue involves the use of information to impeach a defendant when the defendant gives notice of a defense in discovery but does not rely on that defense at trial.