Thursday, March 17, 2011

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.


Gritsforbreakfast said...

Look at the details of what the defense has to disclose in the bill. It's actually pretty minimal, no requirement to reveal trial strategies, work product, etc., and in return you basically get an open file. Yes, you must identify witnesses and alibi evidence, but nine times out ten if the state has performed any kind of investigation, they know who those people are, anyway.

For years I've taken exactly the stance you do here. But I've changed my position because high ideals don't force disclosure of exculpatory evidence, and mandatory disclosure might. The defense bar as a general rule (especially court appointed) just aren't aggressive, don't investigate cases well enough, and if open files aren't mandated they too often just don't seek out exculpatory information. Meanwhile, in most court-appointed criminal cases, the lawyers do so little work there'd be hardly anything to disclose.

It's fine and dandy that you "wouldn't expect [me] to understand the consequences of such a requirement," but plenty of defense lawyers also support mutual discovery, particularly those who've practiced in jurisdictions where it's already done. It's just not as big an imposition as your comments imply, and IMO the benefits outweigh the detriments.

Houston DWI Attorney Paul B. Kennedy, said...


Thanks for you comments. A defendant in a criminal case has the right to remain silent. By requiring the defense to turn over documents as part of the discovery process, the defendant is denied his right to remain silent.

The state has the entire burden of proof in a criminal case. The state brought the charges and is attempting to deprive a person of his liberty. Forcing the defense to turn over documents through reciprocal discovery eases that burden on the state.

I will agree that there are plenty of attorneys out there who don't do any investigative work -- but that is not justification for infringing upon the rights of criminal defendants.