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May 11, 2013

"Discovery and Darkness: The Information Deficit in Criminal Law"

The title of this post is the title of this notable new article by Ion Meyn now available via SSRN.  Here is the abstract:

Scholarship has long recognized a disparity between the discovery rights afforded to civil litigants and those afforded to criminal defendants.  The consensus is that this disparity is caused by resource constraints and limited access to the prosecutorial file.  This Article challenges that conception, contending that criminal defendants are in fact structurally precluded from conducting any formal investigation.  Merely entitled to disclosures of the State's evidence, a criminal defendant must rely on the fruits of the opponent's investigation to somehow suggest a counter-narrative.  This dynamic is inconsistent with the design of the adversarial system and results in a failure to engage in adequate pretrial testing.

This Article recasts a criminal defendant as an essential party to a criminal investigation who should have the pretrial power to compel information from multiple sources. Certainly, greater access to the prosecutorial file and more resources will mitigate discovery deprivations that currently plague criminal defendants.  But without extending a criminal defendant the power to direct an independent and formal investigation, adequate pretrial testing cannot occur.  Evaluating the investigative tools that should be extended to a criminal defendant, the Article utilizes a case study to ascertain how the application of these tools might affect a pretrial investigation.  Finally, the Article surveys and responds to policy arguments against permitting the participation of criminal defendants in criminal investigations.

I think this article has an especially important sentencing salience given that 9 of every 10 convictions are the results of a plea bargain.  I am certain that the terms of sentencing exposure in plea deals are always impacted by the realities of the "discovery" process in criminal cases (just as settlements in civil cases are always impacted by the realities of the civil discovery rules).

May 11, 2013 at 09:57 AM | Permalink


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I do not understand something. Do the Rules of Criminal Procedure prohibit the subpoenaing of witnesses, a defense side investigation, or depositions ahead of trial? Do any court rules do that? Does any judge have a policy doing that?

I would appreciate a citation.

Posted by: Supremacy Claus | May 12, 2013 9:26:30 AM

Of the many factual and logical flaws in this note, one is the idea that few defendants have even the right to compel information from third parties. The article suggests that criminal SDTs, for example, often require that the court authorize the release. Why is that bad? Should the right be unmonitored? The same applies to the State, at least in CA. What about search warrants, you might say? That requires the court approval as well.

The article laments the power of the State to convince the recalcitrant to speak, when compared to the defense. Most of the tactics alleged to be employed are far from widespread in my experience and apply mostly to defendants (not witnesses) who have not only the right to remain silent but the right to be told the same. Amazingly the note complains about the defendant being excluded from the police investigation. Additionally, it ignores the reality that in many urban crime cultures, that power of the state to gather witness cooperation works in the opposite direction.

The article takes as a given, that civil type discovery rules are a net benefit without examining the marginal improvement of outcomes, if any, against such a system. It also does not even address the different goals of civil and criminal law and its players. The police and prosecutor have a different goal, and ethical responsibility, than a civil plaintiff's attorney. Also, what about the differing standard of proof in criminal? Again ignored.

This article poses some interesting questions, but, as is typical of some law professor advocacy, totally divorced from any sort of reality when it comes to useful ideas for practical implementation. This is just a one sided, 38 page gripe about how unfair the criminal justice system is to people charged with a crime. It bears little relation to reality where I practice in CA and ignores the many procedural protections that are in place for all defendants, whether wrongfully accused or not.

Posted by: David | May 12, 2013 9:43:45 AM

David --

A thoughtful comment indeed.

Posted by: Bill Otis | May 12, 2013 5:26:42 PM

Prosecutors have literally dozens of duties to the adverse third party. These are enumerated in the Rules of Conduct, of Evidence, of Criminal Procedure, (all are statutory), and countless appellate decisions. If not fulfilled, the defendant should be able to sue the prosecutor and the judge if he contributed, for negligence per se. Such tort liability would end the deviations at the margins, and remove the logical justification for violence against prosecutors and judges. Prosecution being punishment of the body in its ordinary use fully qualifies for strict liability. Such would end the prosecution business overnight because it so bad. Instead, professional standards of due care should apply.

The contrapositive of a true assertion is always true as well. If tort liability is a substitute for violence (If A, then B is true), then immunity is a justification for violence (If not B, then not A, must be true). The prosecution business is in such bad shape, legislation must be enacted to expose it to the benefits of tort liability. The prosecution fails to prosecute 90% of serious crime. Then it prosecutes people and it is the wrong person about 20% of the time. Prosecutors should be liable to defendants they have falsely charged. They should be liable to future victims of criminals they have failed to incapacitate by exercising discretion. These outrageous rates of false positives and false negatives, make the whiny complaints in the article quite trivial.

Posted by: Supremacy Claus | May 12, 2013 8:43:41 PM

I contend that the courts have interpreted the Sixth Amendment all wrong. The Constitution requires that defendants must be allowed to confront the witnesses against them. To make the right to confrontation "constitutionally effective," criminal defendants should have access to all evidence that may be used against them *before* trial. If the defendant doesn't know what evidence the government is going to claim (whether testimonial or physical) or what the adverse witnesses will say, it is almost impossible in many cases to investigate to find the favorable evidence to refute the adverse evidence from potential witnesses. This is, in my opinion, the main motivation for judges and prosecutors to oppose open discovery by defendants.

If the defendant has access to the unfavorable evidence (unfavorable evidence need not be truthful, for example, cops often testily), an effective investigation can be conducted by the defendant.

I personally had a pro per jury trial where the prosecutor and police hid a witness (ironically an honest cop) favorable to my defense. Since neither the police officers nor prosecutor disclosed the favorable witness before trial (the witness was in the same vehicle as the other three testiliars were in) in the police reports or from prosecutorial discovery (the prosecutor claimed he didn't find out until after discovery had concluded), I only found out about the witness during cross-examination of the first police officer. Had I not been intimately familiar with police procedure (I was former cop), I would never have effectively cross-examined the officer on the hidden witness. Thankfully, the judge gave me a favorable jury instruction on the hidden witness.

(I'm a largely successful pro per, and not an attorney.)

Posted by: Daniel | May 20, 2013 12:06:11 AM

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