Reciprocal Criminal Discovery, Or, What Was That Story Doing In My Sunday Times?

nytlogo379x64.gifFor some reason, the New York Times featured a story in Sunday’s paper about a change in Massachusett’s criminal procedure rules. A little over two weeks ago, in Commonwealth v. Durham (446 Mass. 212), the state’s high court ruled that under its reciprocal discovery rule, a judge could compel a defendant to turn over statements by Commonwealth witnesses if s/he hoped to use these statements to impeach the witnesses. I have a couple of comments about this story. The first is really a question: why did it appear yesterday and why was it in the Times? The decision came down on March 14 and the Boston Globe (owned by the Times) ran a story the next day. The Times story wasn’t about a national trend. Although it did place the Durham case in a national context (without bothering to mention the case name), it was first and foremost about the two-week old state court decision. I thought that was odd.

What of the substance? As a public defender, I certainly would have preferred not to turn over any part of my case in advance. One of the lawyers quoted in the story suggested that having such information in advance will help witnesses lie better by preparing them for likely cross-examination questions. In some cases this will certainly happen, but I’m not sure about the efficacy of this coaching. In my experience, professional witnesses – like police – are pretty effective at modifying their testimony to address expected defects. This rule will rarely implicate police witnesses, however, because they typically refuse to give out-of-court statements to defense investigators. Lay witnesses – the people from whom defense investigators typically obtain statements – are often much less talented than police when it comes to testimony refinement.

One lawyer suggested that this rule may result in more dismissals as prosecutors learn about the weaknesses of their cases in advance. Possibly. But even where there is no reciprocal discovery rule, many defense lawyers share these statements with trustworthy prosecutors in the hope of getting a dismissal. I’m not sure how making this discovery mandatory improves a defendant’s lot.

The best argument for reciprocal discovery is that litigation usually produces the most “accurate” results when both sides are fully prepared. In the absence of reciprocal discovery, prosecutors are always at a bit of a loss regarding the weaknesses of their case (at least with respect to civilian witnesses.) If we trust prosecutors not to coach witnesses to lie, the rule seems reasonable enough. On the other hand, I have come across several aggressive prosecutors who view the process as a game rather than a truth-seeking function. In their hands, these statements will not necessarily produce greater accuracy.

In the end, sadly, this rule will have limited impact and its effects won’t be those predicted in the article. Most defense lawyers have no discovery to provide the DA. They often lack the time, the will and the resources to conduct serious investigations. I fear that a reciprocal discovery rule will end up being used as an excuse for further defense sloth. Why bother investigating, some may ask, when the witness will simply be coached to testi-lie? And I wonder whether courts considering ineffective assistance claims against these attorneys will agree that this explanation renders non-investigation a legitimate defense strategy.

Interesting stuff, this, but what in the world was it doing in my Sunday Times?

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1 Response

  1. “Most defense lawyers have no discovery to provide the DA. They often lack the time, the will and the resources to conduct serious investigations.”

    I don’t disagree although personal experience would accentuate lack of time (usually the client’s fault for not bringing the case to you earlier) and lack of reason – there is nothing out there to discover.

    But I also think the lack of time could be applied to the prosecution. They are often just thrilled to have their witnesses show up for court and, for most cases, simply don’t have the time to prep them before trial. My experience is that the prosecution would probably use such information to better assess the reliability of their witnesses – not to coach them.