Still a bad idea -- even with a fancy name

Reciprocal discovery. It sounds so innocuous. Since the State is required to make certain documents in a criminal prosecution available to the defense, why shouldn't the defense be required to do the same in return?

Over at Grits for Breakfast, Scott Henson wrote about a proposed bill that would require reciprocal discovery in criminal cases:

Chairman Pete Gallego has a bill up requiring mutual pretrial discovery for both the prosecution and the defense, with related bills up by Reps Guillen and Dutton. If you get four lawyers in the room you're likely to get five opinions on the subject, but I'm not a lawyer and as I've listened to the debates over the years, I've warmed to the idea. There has to be some way to ensure exculpatory evidence is disclosed before trial. Just requiring open files of prosecutors might be my personal preference (many counties operate that way just fine), but having witnessed this fight go on for years, I know it will take at least minimalist defense disclosure to seal the deal politically at the Lege. Mutual discovery isn't a bad compromise given the severity of the problem.

Now Mr. Henson doesn't practice criminal defense (though he is well acquainted with some that do) so I wouldn't expect him to understand the consequences of such a requirement.

In a criminal prosecution, the attorney representing the state is attempting to prove a person committed a criminal act. That person is presumed innocent unless the state's attorney can prove otherwise. The person accused has no burden to prove anything. The state's attorney must present evidence for the finder of fact to consider in determining whether or not the state's attorney has met his burden of proof.

The "system" is set up to make it as difficult as possible to convict someone (though you would find that notion hard to believe in most courtrooms). The only person in the courtroom with a right to a fair trial is the person accused. The government has no due process rights in a criminal trial - nor should it.

Requiring the person accused to turn over evidence to the state's attorney would serve to lower the government's burden of proof. The state's attorney would know the identity of all potential defense witnesses. The state's attorney would have alibi evidence. The state's attorney would know the trial strategy of the person accused.

Many times the defense strategy is to point out holes in the state's theory of the case that could lead a jury to find reasonable doubt that the person accused committed the offense alleged. In those cases the person accused rarely puts on any evidence - the entire case is centered on the state's burden of proof. If the person accused did not produce any documents during pretrial discovery, the state's attorney would have a pretty good idea of what defense counsel's trial strategy would be.

That might seem "fair" - but we're not talking about a process in which both parties are on an equal footing. There is a reason that criminal cases in Texas are styled The State of Texas v. the accused. If we were just arguing over insurance money then the civil discovery rules are appropriate. But when we talking about the very freedom and liberty of an individual - the burden on the party seeking to restrain that freedom or liberty should be as heavy as possible.

We should never do anything to lessen that burden. That could be you on the other side of the v. one day.