Prosecution Complex: America's Race to Convict, and Its Impact on the Innocent

By Daniel S. Medwed | Go to book overview

2
In the Interest of Full Disclosure
Discovery in Criminal Cases

Let’s revisit the drunk-driving case discussed in the previous chapter. Assume a prosecutor charges Smith with manslaughter and DWI, and obtains a felony indictment from the grand jury. The case is placed on the calendar for trial. During his trial preparation, the prosecutor finds a portion of a detective’s memo book buried in the bottom of a police file. The memo book contains notes revealing that the police interviewed Wiley, the man living in the apartment immediately above Smith’s, on the night of the incident. Wiley reported that he believed Smith remained in his apartment all evening because he heard Smith, who tended to sing loudly when he had been drinking, rhapsodizing throughout the night. What should the prosecutor do with that information? Should it be disclosed to the defense? Must it be disclosed?


The Legal and Ethical Landscape of Disclosure

The U.S. Supreme Court has never recognized a federal constitutional right for criminal defendants to receive the evidence in the prosecution’s possession before trial. Prosecutors are not even constitutionally compelled to furnish the defendant with the names of potential prosecution witnesses, let alone disclose all of the investigative information. State and federal discovery laws partially fill the void by providing defendants with the right to receive at least some of the evidence against them. But discovery rules tend to offer minimal solace to defendants. The scope of discovery in criminal cases is generally (and, bizarrely, given the stakes) narrower than in civil cases.1

There is one category of evidence to which criminal defendants are constitutionally entitled prior to trial: evidence that exculpates them from charges. In 1963 the Supreme Court ruled in Brady v. Maryland that “the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or punishment.”2 A

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