Discovery

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 of criminal discovery were likely limited absent more evenhanded treatment of the prosecution and the defense.

Two decisions of the U.S. Supreme Court in the early 1970s—Williams v. Florida and Wardius v. Oregon—approved basic reciprocity requirements in discovery and opened the possibilities of future expansion. Williams, the first and most important of these cases, eliminated the argument that the defendant's privilege against compulsory self-incrimination stood as a general bar to prosecutorial discovery. In that case, the defendant challenged the constitutionality of the state's alibi demand rule, which allowed the prosecution to require the defendant to give notice of an intent to rely upon an alibi defense and provide information on where he or she claimed to have been at the time of the crime, and to name and provide addresses of supporting witnesses. The Court ruled that the notice of alibi defense did not violate the privilege because the rule does not compel the disclosure. The forces at trial that cause a defendant to disclose and present a defense do not constitute compulsion, and the Court concluded that the alibi demand rule only accelerated the timing of that disclosure.

Williams noted that, upon defense compliance with the alibi demand rule, the Florida rule required the state to provide the defense with information about the witnesses whom it would offer to negate the alibi. In Wardius v. Oregon, decided a few years later, the Court held that such reciprocal disclosures by the prosecution were required and concluded that Oregon's rule violated due process because it contained no such requirements.

Further impetus to expand discovery generally and prosecutorial discovery in particular came from the Discovery Standards published by the American Bar Association (ABA) in 1970. In one important area, the standards proposed disclosure by the prosecution of names and addresses of the witnesses it intended to call together with witness statements. Reading Williams as broadly authorizing discovery from the defense as long as the prosecution provided the defense with the same type of information, the Standards adopted a requirement that the defense give the prosecution notice of all defenses it intended to raise and the names and addresses of supporting witnesses. Significantly, under this version of reciprocity, the prosecution's right to discovery is independent of any defense request for similar disclosures.

Williams and the ABA Standards had a very substantial impact. Nearly half the states adopted related provisions, in some instances more expansive and in others more limited, but sharing the new theory that defense disclosures were constitutional and appropriate.

Another major force in the expansion of discovery, albeit a more moderate expansion and one based on a somewhat different theory of reciprocity, was the 1975 revision of discovery in the Federal Rules of Criminal Procedure. In particular, these rules did not then, and do not in the early twenty-first century, authorize the general discovery of witness names. The federal discovery rules are also premised on a somewhat different theory of reciprocity. Discovery against the defense depends upon a defense request for disclosure of a related category of evidence (and compliance with the request).

Under the federal rules model of conditional discovery, the validity of discovery against the defense rests on the theory of waiver of constitutional rights as opposed to the theory of advancement of the timing of disclosure articulated in Williams. Thus, by requesting discovery from the prosecution under a system conditioned on reciprocal obligations, the defense waives its right to object to the requirement that it provide discovery to the prosecution. The validity of this theory of waiver depends upon the defense having no independent right to the discovery requested and upon a determination that the pressures motivating the defendant to request discovery do not compel the request. It is debatable whether, in the absence of Williams, the waiver theory of conditional discovery would be sufficient to satisfy the Constitution or instead is constitutionally superfluous. Those jurisdictions that continue to use conditional discovery likely do so largely because it adds a degree of defense control and apparent fairness to requiring defense disclosure of potentially damaging information.

While questions remain regarding the validity of some uses of prosecutorial discovery, its basic constitutionality is relatively clear when coupled with reciprocal duties. The trend in each revision of the federal rules of criminal procedure—the third edition of the ABA Discovery Standards published in 1996, and new state discovery rules, such as Michigan's rule adopted in 1995—is discovery that is largely a "two-way street." Indeed, the authors of the third edition of the ABA Standards were explicit in their conclusion that efforts to limit prosecutorial discovery in the second edition of the Standard had resulted in that edition having very limited influence on legislative developments.

Although some debate over reciprocal discovery will continue, future expansion of criminal discovery is likely to depend on additional discovery being made available against the defense. Discovery against the defense is supported by a number of interests. First, some reformers believe that greater discovery from both sides is preferable because it likely leads to more accurate outcomes. A second group, which supports effective prosecution, argues that allowing the defense to "hide its hand" while requiring disclosure of the prosecution's case creates an unfair imbalance. Third, many defense advocates believe that on the whole greater defense disclosures will ultimately benefit the defense as a necessary precondition to relatively free and complete access to the prosecution's file. They note that typically the defense badly needs access to full information about the prosecution's case and it rarely has much evidence of its own that would be discoverable.

Some defense supporters dissent from embracing broad discovery against the defense. They argue that in some cases the defense conducts its own investigation and develops a significant defense case, and in those situations, discovery requirements can produce a state of affairs unfavorable to the defendant. This debate within the defense community pits the interests of the unusual defendant with resources and/or an affirmative defense case against the general group of defendants who are typically indigent and represented by overworked and underpaid counsel merely testing the adequacy of the prosecution's case.