THE JUSTICE PROJECT Expanded Wrongfully convicted for the rape and murder of a young Discovery in girl, Clarence Brandley spent nearly ten years on death row Criminal Cases before being exonerated. A Policy Review Prosecutors failed to disclose exculpatory evidence that placed other suspects at the scene of the crime. Expanded discovery laws could have prevented this injustice. Introduction .............................................. 1 Recommendations & Solutions........ 2 Grounds for Reform .............................. 3 The Legal Landscape .......................... 6 Benefits & Costs .................................... 9 Profiles of Injustice .............................. 10 Snapshots of Success ........................ 15 Voices of Support ................................ 17 Questions & Answers ........................ 19 A Model Policy...................................... 21 Literature ................................................ 26 THE JUSTICE PROJECT INTRODUCTION n criminal cases, discovery is the formal process by ply upon the location of the trial. Not only does the Iwhich the defense and prosecution exchange infor- timing of disclosures vary from jurisdiction to jurisdic- mation relevant to a criminal investigation. The tion, but it often remains dependent upon the individual exchange of relevant evidence is a critical component policies of the prosecutor or the competence of an indi- of investigation and trial preparation. Discovery pro- vidual’s defense counsel. vides pertinent information allowing each side to ade- The rules that codify civil and criminal procedure are quately prepare for the prospect of a trial and it gives different in state and federal courts, but in both instances the defendant information on how to plead. Through civil procedure actually provides more expansive rights to the process, discovery helps the criminal justice sys- discovery. For example, in civil trials parties may depose tem reach reliable outcomes efficiently in criminal the other party and the other party’s witnesses. This rule cases. The necessity of adequate discovery flows from simply does not exist in most states for criminal trials. the principle upon which the criminal justice system Moreover, civil procedure often mandates discovery is founded — the presumption of innocence. timelines adequate for counsel to evaluate and scruti- By requiring the timely exchange of all information nize evidence. The fact that discovery laws are so broad collected by the police and prosecution in criminal in civil cases and are often so restrictive in criminal cases cases, expanded discovery laws can provide for a more — where the freedom and, sometimes, the life of the fair and accurate criminal justice system. American defendant are at stake — is as nonsensical as it is unjust. criminal jurisprudence is predicated upon the presump- Discovery is a crucial procedural safeguard that tion of innocence. Because an individual is presumed protects against wrongful imprisonment, helps to innocent until convicted by a court of law, the prosecu- make the legal system more transparent by increasing tion alone bears the burden of proof. The state must pretrial disclosure, and ensures a fair procedure by present evidence that the accused is guilty beyond a rea- allowing each side in a trial to adequately prepare their sonable doubt. The presumption of innocence is seri- case. Alternatively, inadequate discovery laws threaten ously damaged when the defense is given insufficient the reliability of outcomes in criminal cases and signif- opportunity to cast doubt upon the prosecution’s case. icantly undermine a defendant’s right to due process. Only through adequate discovery can counsel subject Adequate discovery laws also mitigate other common evidence to appropriate scrutiny and give the accused a reasons for wrongful convictions, such as eyewitness meaningful opportunity to challenge and test evidence misidentification and false confessions. Expanded dis- in a fair hearing before a court of law. Similarly, through covery allows the defense to adequately and vigorous- a process of reciprocal discovery, the defense may also ly challenge evidence and increases the likelihood that be required to turn over information to the prosecution. misleading or exculpatory evidence will be caught and Such information may regard, inter alia, witnesses the handled appropriately when considering pleas and at defense intends to call at trial. It is vital, however, that trial. Additionally, while expanded criminal discovery reciprocal disclosure violate neither attorney-client laws help ensure a more fair and accurate legal system, privilege nor the Fifth Amendment right not to give legal practitioners in jurisdictions with more open dis- self-incriminating testimony. covery rules also report a more efficient process, with Rules identifying what qualifies as “discoverable” fewer reversals and retrials, and more cases resolved material in criminal trials, and when it must be earlier in the process. In short, expanded discovery exchanged, are determined in large part by state statutes, practices also enhance judicial efficiency. with some guidance from the United States Supreme This policy review seeks to inspire communica- Court. Most states have formal rules establishing what tion among criminal justice stakeholders, policymak- information the prosecution must disclose to the defense ers, and others regarding the best practices and meth- and, if a state provides for reciprocal discovery, vice ods for improving access to evidence through expand- versa. Variation in what type of information and mate- ed discovery. By employing the reforms highlighted rials the defense is entitled to receive under law depends in this review, policymakers can build a fairer, more not only on the charge itself, but also, in large part, sim- robust, and more accurate criminal justice system. 1 WWW.THEJUSTICEPROJECT.ORG THE JUSTICE PROJECT RECOMMENDATIONS & SOLUTIONS iscovery is the formal process by which evidence all unprivileged information that (with due diligence) is Dis exchanged between the defense and prosecu- known or should be known to the prosecution, law tion prior to trial. In a civil suit, a defendant has broad enforcement agencies acting on behalf of the prosecu- discovery rights including access to witness statements, tion, or other agencies such as forensics testing labora- prior claims filed against either party, police reports, tories working for the prosecution. An open-file policy and the right to depose third parties.1 In criminal cases reduces discretionary decisions in determining what in most states, however, discovery is much narrower. evidence is “material” (meaning that it will affect the Access to evidence held by the police and the prosecu- outcome of trial) and “exculpatory” (meaning that it will tion may often be significantly restricted. Discovery in tend to negate guilt or mitigate a sentence) and should criminal cases often does not include information on thus be disclosed to the defense. By allowing the witnesses, police reports, or mitigating and aggravating defense access to the state’s entire file, open-file discov- evidence, all of which could affect the outcome of a ery reduces the potential for error and the inefficiencies trial, as well as lessen inherent in making the decisions or increase the sen- Discovery in criminal cases on an item-by-item basis. tence imposed after a conviction. Where this often does not include AUTOMATIC AND evidence is discover- information on witnesses, MANDATORY DISCLOSURES able, it is often too late police reports, or mitigating In addition to full, open-file in the process to be of discovery, states should adopt any practical use to the and aggravating evidence, all rules requiring mandatory and defense. Mandatory of which could affect the automatic disclosure of certain and open-file discov- specified information in crimi- ery, in which prosecu- outcome of a trial, as well as nal cases. In 1994, the American tors make their entire lessen or increase the sentence Bar Association (ABA) issued case file available to imposed after a conviction. new standards related to crimi- the defense and dis- nal discovery, which were prom- close particular items ulgated in recognition of a at required times, leads to a more efficient criminal jus- growing state and federal trend toward expanding tice system that better protects against wrongful pretrial discovery in criminal cases. For example, the imprisonment and renders more reliable convictions. ABA recommends disclosure of tangible objects; To prevent wrongful convictions, and improve information related to witnesses, including names, efficiency in the criminal justice system, it is neces- addresses, and statements; expert witness informa- sary that discovery laws be as expansive as possible at tion, including qualifications, reports, and results of the pretrial phase and that they be uniform, manda- physical or mental examinations; and materials relat- tory, and enforced. The following recommendations ed to sentencing (meaning evidence related to aggra- represent best practices for discovery in criminal vating or mitigating factors that could increase or cases. By implementing these standards, states would reduce the possible punishment). considerably enhance the reliability of outcomes in States should adopt rules that closely mirror the criminal cases. ABA standards in terms of mandatory disclosures, making clear the duty of the state to obtain all OPEN-FILE