Discovery - Judicial And Legislative Authority, Special Pressures In Criminal Discovery, The Central Demand For Reciprocity, Discovery Distinctions
Each party initially learns the facts of the case through its personal knowledge and investigation. As the trial approaches, a set of procedures, commonly called discovery, permit each side to require disclosure of certain aspects of the opponent's evidence. Whether in civil or criminal cases, the purposes of pretrial discovery are generally the same. Discovery of the opponent's case is thought to further the truth-seeking function of trials by avoiding surprise, sometimes colorfully called "trial by ambush." In addition, early disclosure of the strengths and weaknesses of the case facilitates negotiated settlement and, where appropriate, dismissal of baseless charges. Because discovery facilitates efficiency in litigation, it is believed to save resources.
Discovery in American courts is much less extensive in criminal cases than in civil, and it is somewhat asymmetrical in that greater discovery is provided for the defense than for the prosecution. These features are likely related to each
other and each is in part a consequence of the constitutional rights protecting the criminal accused. Criminal discovery has, nevertheless, greatly expanded in the last third of the century. Expansion first concerned principally defense discovery from the prosecution, but in the last several decades, discovery from the defense has grown dramatically. The development and expansion of what is called reciprocal discovery—discovery provided to both defense and prosecution—is central to the considerable growth of discovery in criminal cases.
Interestingly, the federal system is not at the cutting edge of developments in criminal discovery. Instead, the movement has been led by the states, and it is perhaps the difficulty of tracking developments that occur in so many different jurisdictions that has resulted in relatively little attention being paid to the reasonably major changes in this field of criminal procedure.
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Early in our judicial history, courts took the view that they lacked authority to order discovery in criminal cases. That view generally persisted into this century, but it both changed and became less relevant after the 1930s as legislatures created discovery rights directly. That courts have inherent authority to order discovery is now widely accepted, but it has been rendered relatively unimpor…
Discovery in criminal cases is affected by the constitutional rights that protect the accused. Among the rights that play a role are the Fifth Amendment rights against compulsory self-incrimination and to due process and the Sixth Amendment right to effective assistance of counsel, all made applicable to the states through the Fourteenth Amendment. The right against compulsory self-incrimination m…
The initial wave of discovery reform generally provided an important set of basic information to the defense to help assure accuracy in outcomes. However, it became increasingly clear that even the powerful argument that potentially innocent defendants needed special protection would not carry reform further if discovery continued to benefit only the defense. The prospects for continued expansion …
Those familiar with civil discovery will immediately notice that several of its most important discovery devices—interrogatories, depositions, and demands for admission—are either completely absent from criminal discovery or are available in only a handful of jurisdictions. The pattern in criminal discovery is for the rules or statutes to require the disclosure of specific types of i…
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…
While typically going further, most modern criminal discovery rules in the United States cover several core types of information, which were generally provided to defendants in the first generation of discovery statutes and rules. This core includes the statements of the defendant, documents, and tangible objects that either the prosecution intends to introduce at trial or were obtained from the d…
The availability of defense discovery of witness names and their statements is a feature that distinguishes discovery systems. Neither type of information is provided in discovery in federal courts, illustrating the fact that the federal system is not at the forefront of expansive criminal discovery, but many states provide both categories of discovery to defendants. States often also require that…
Discovery systems commonly list three major remedies for failure to comply with discovery rules: an order to comply, a continuance, and a prohibition against introducing the evidence or calling the witness not properly disclosed. In addition, other remedies are either explicitly authorized by the discovery provisions in some jurisdictions or recognized as an aspect of judicial discretion to contro…
In Weatherford v. Bursey, the U.S. Supreme Court stated that the defendant in a criminal case has no federal constitutional right to general discovery. However, in one particular area, the due process clause produces a limited constitutional right to discovery. The Supreme Court began the development of the constitutional right of the defense to disclosure in Mooney v. Holohan with a rule that the…
Discovery in criminal case will never rival the extensive system in civil litigation. However, its progress in the last three decades of the twentieth century was considerable. While some expansion of discovery can be expected, its rough outer limits have likely been defined. The remaining goal of reformers is to achieve in most jurisdictions a statutory entitlement to what is often called "…
American Bar Association. Standards Relating to Discovery and Procedure before Trial. Washington, D.C.: American Bar Association, 1969. ——. Standards Relating to Discovery and Procedure before Trial, Supplement. Washington, D.C.: American Bar Association, 1970. ——. "Discovery and Procedure before Trial." In Standards Relating to the Administration of Justi…
Brady v. Maryland, 373 U.S. 83 (1963). Fisher v. United States, 425 U.S. 391 (1976). Kyles v. Whitley, 514 U.S. 419 (1995). Mooney v. Holohan, 294 U.S. 103 (1935). Nobles v. United States, 422 U.S. 225 (1975). Wardius v. Oregon, 412 U.S. 470 (1973). Taylor v. Illinois, 419 U.S. 522 (1988). Weatherford v. Bursey, 429 U.S. 545 (1977). Williams v. Florida, 399 U.S. 78 (1970). …
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