PRETRIAL DISCLOSURE

The rules and practices governing pretrial disclosure to the opposing party differ dramatically in criminal and civil litigation. In civil disputes, each side has access to virtually all relevant information possessed by the other. In criminal cases, however, there has been a continuing debate which has focused on how much disclosure the prosecutor, with his superior investigative resources, should be required to make. The argument against wide-ranging disclosure is that it will result in witness intimidation and perjury. The arguments for disclosure are that a criminal trial should not be a "sporting event" in which one side tries to surprise the other, and that disclosure of the prosecution's evidence would aid the effective assistance of counsel to the accused guaranteed by the Sixth Amendment. (See right to counsel.)

Proponents of greater disclosure in criminal cases have made some gains in recent years through the expansion of discovery statutes. Rule 16 of the federal rules of criminal procedure is typical. The rule currently provides that, absent special circumstances, the government must disclose upon request: the defendant's own statements; his record of prior convictions; and documents, tangible evidence, or reports of examinations of the defendant or scientific tests the government intends to introduce at trial. The most striking difference between this rule and civil practice is that the criminal rule does not give the defense the power either to discover the identity of government witnesses or to compel them to testify under oath prior to trial. Several states provide for disclosure of prosecution witness lists, but Congress in 1974 rejected such a provision in the federal rules on the usual argument that disclosure of the identity of witnesses would possibly subject them to intimidation.

In addition to the slow but steady statutory expansion of pretrial disclosure by the government to the defense, there has been a reciprocal movement to entitle the prosecution to learn more about the defense case before trial. The argument that the policies underlying the Fifth Amendment right against self-incrimination shield the defense from any disclosure has largely been unsuccessful. Under the federal and many state rules, the defense can be requested to disclose any tangible evidence or results of physical or mental examinations it intends to introduce at trial, and to give notice of an alibi or insanity defense. The Supreme Court has upheld the constitutionality of compelling defense disclosure, provided that discovery is a two-way street; if the defendant is required to disclose alibi witnesses, for example, the government must also disclose any evidence that refutes the alibi.

Against the background of limited formal discovery rules, prosecutors frequently open files to the defense in an attempt to induce guilty pleas. Sometimes, also, judges exert informal pressure toward open discovery in order to avoid trial delays that might be caused by surprise evidence.

The Supreme Court has repeatedly held that a defendant has no general constitutional right to discovery, but it has required that the prosecution sometimes reveal "favorable" evidence. In Brady v. Maryland (1963) the government failed to disclose to a murder defendant that his companion had once admitted to a government agent that he had done the actual killing. The Court held that such a failure to disclose violates due process where the evidence is "material to guilt or punishment," irrespective of the good faith of the prosecution.

The lower courts generally gave an expansive reading to the Brady decision, but the Supreme Court curbed this development in United States v. Agurs (1976). The Agurs Court held that if the defense has not requested favorable evidence, or has made only a general request, a failure to disclose gives the defendant no constitutional right to a new trial unless there is a strong probability that the result of the first trial would not have been different had the favorable evidence been disclosed. Moreover, an appellate court should not grant a new trial so long as the trial judge remains reasonably convinced of the defendant's guilt. The Agurs Court also said that the failure to disclose evidence that reveals that the prosecution's case includes perjured testimony or the failure to disclose favorable evidence after it has been specifically requested by the defense, is "rarely excusable." In these two situations, the Constitution requires that the defendant be given a new trial if there is any reasonable possibility that the verdict would have been different had the undisclosed evidence been admitted.

Thus, Agurs provided some ammunition to both sides of the debate over criminal discovery: it limited the general due process right but also created a category for all but automatic reversal when the prosecution fails to respond to a defense request for specific information or when the prosecution case includes the knowing use of perjury.

Barbara Allen Babcock
(1986)

Bibliography

Babcock, Barbara 1982 Fair Play: Evidence Favorable to an Accused and Effective Assistance of Counsel. Stanford Law Review 34:1133–1182.