In Expanded Discovery in Criminal Cases: A Policy Review (pdf), The Justice Project offers recommendations and solutions for expanding discovery law. The policy review includes information on discovery procedures and law, case studies, states which have enacted expanded discovery legislation, voices of support, and a model policy. Hardcopies of the policy review are available on request. If you are working directly on this issue in your state, or you would like additional information, please contact info@thejusticeproject.org.
Discovery is the formal process by which the prosecution discloses non-privileged information relevant to a criminal investigation prior to trial. It provides the basic foundation for accuracy and reliability in a criminal case. It is a crucial safeguard that helps make our legal system more transparent, ensures a fairer procedure, and helps protect against wrongful convictions. All other aspects of our constitutional system, such as due process and assistance of counsel, depend on complete discovery.
The record of wrongful convictions in this country has demonstrated that exculpatory evidence can be withheld for years, even decades, while an innocent person sits in prison. Whether the state fails to disclose evidence inadvertently or intentionally, clear rules about what is subject to discovery – and clear consequences for failure to disclose discoverable information – minimizes the risk of these mistakes.
Uniform, mandatory, and enforced discovery laws are needed to protect against wrongful conviction. Best practices include open-file discovery, mandatory and automatic disclosures, appropriate timing, certification of exchange, and remedies for noncompliance. These practices have been endorsed by knowledgeable expert groups such as the American Bar Association, the National Conference of Commissioners for Uniform Law, and many state criminal justice commissions.
The Justice Project’s recommendations include:
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Open-file discovery, in which defendants have access to all relevant, unprivileged information in the files of prosecutors and law enforcement, is the best way to ensure that meaningful discovery is available and that defendants are able to prepare for trial. Open-file discovery reduces the possibility of prosecutorial error or misconduct, and minimizes the inefficiencies inherent in making decisions about each piece of evidence on a case-by-case basis.
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Requiring automatic disclosure of evidence prior to trial and on an ongoing basis will ensure that discovery obligations are clear throughout the process. Unlike civil procedures, criminal discovery is often not mandatory and thus is produced only at the request of the defense; and there are no pre-set timelines specifying how far in advance of the trial the material must be exchanged.
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Discovery rules should provide for pre-trial access to information. Limited discovery (or no discovery at all) prior to or during the trial phase creates the risk that material evidence will be provided without adequate time for appropriate use, or even not provided at all. Defense counsel need access to all evidence relevant to the investigation of the case as early as possible in order to identify key sources of information, recognize theories of the case that prosecutors may have missed, and prepare for cross-examination during trial. Without access to this information, they are not able to represent their clients adequately.
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In line with recommended practice, laws mandating “certification” should be enacted to ensure the creation of a record of what information has been deemed discoverable, and what has actually been exchanged between parties. A discovery certificate should be filed by the District Attorney’s office with the court during pretrial procedures, and should specify when evidence was exchanged and by what method of delivery.
Some states, including North Carolina, Florida, Colorado, New Jersey, and Arizona have already taken a vital step in expanding discovery by enacting legislation granting the defense more access to the prosecution’s evidence during pre-trial proceedings. While a promising move forward, more states need to work toward enhancing their discovery laws.
Related Studies:
The following materials are essential reading for individuals interested in improving and enhancing discovery procedures:
New York County Lawyers’ Association, Discovery in New York Criminal Courts: Survey Report and Recommendations, 2006.
Stephanos Bibas, “The Story of Brady v. Maryland,” in Criminal Procedure Stories (Carol Steiker, ed. 2005).
Jannice E. Joseph, “The New Russian Roulette: Brady Revisited,” 17 Cap. Def. J. 33 (Fall 2004): 33-60.
Tamara Graham, “Death by Ambush: A Plea for Discovery of Evidence in Aggravation,” 17 Cap. Def. J. 321 (Spring 2005): 321-346.
Related Cases:
Earl Charles:
In Georgia, Earl Charles spent nearly four years in prison after being wrongfully convicted of double murder. During his trial, evidence of the suggestive nature of the identification procedures and vital information on the informant’s incentive to lie was not disclosed to the defense. Independent evidence showing he was in another state at the time of the crime eventually helped exonerate Charles, and during civil litigation, the suppressed evidence finally came to light.
Read about Earl Charles
Clarence Brandley:
In August 1980, a sixteen-year-old high school student was raped and murdered during a girls’ volleyball tournament in Conroe, Texas. During the investigation and subsequent trial, authorities suppressed evidence that placed other suspects at the scene of the crime, instead focusing their entire investigation and prosecution on Clarence Brandley, the superintendent janitor of the school. In 1981, Brandley was convicted of murder and spent almost ten years on death row until finally being exonerated in 1990.
Read about Clarence Brandley
Michael Evans and Paul Terry:
Michael Evans and Paul Terry each spent 27 years in an Illinois prison after being wrongfully convicted of the rape and murder of a young girl in 1976. Evans and Terry’s convictions followed trials in which material evidence concerning the sole eyewitness had been withheld from their attorneys. In 2003, Evans and Terry were released after DNA testing exonerated both men, and in January 2005, they were granted a full pardon by Governor Roger Blagojevich.
Read about Michael Evans and Paul Terry
