What can I see?
I was in court the other day, and caught part of a hearing where a defendant was complaining about his lawyer. One of the complaints is one we hear all the time - he hasn't showed me all the evidence the State has against me. The judge tried to explain to him the rules of discovery, but like most people, he found it hard to believe.
I think most people would agree that there is nothing more serious than facing a loss of your liberty. If you are going to have to defend yourself, you want to know what evidence the government has. Most people believe you are entitled to that - after all, we always hear about all these "rights" criminals are supposed to have. How can a proceeding be fair if you don't know what evidence is?
The reality is that there is no such thing as discovery in criminal cases. Under the rules, the State only has to provide copies of your client's statements, and any expert reports (e.g. drug analysis, DNA results, etc..) They do not have to provide offense reports, or witness statements. You are only entitled to those after the witness testifies - so you can cross-examine them. There's an old joke about waiting to try the case to find out what the facts are, but that could happen.
Thankfully, most prosecutors will open their files, and allow lawyers to look at what they have. You have to then sit down, and take notes on what you see. Some more enlightened prosecutors actually provide copies of whatever they have. Not only is that fairer, it also helps resolve cases. It's hard to decide what to do when you don't know what the evidence. It's also impossible to advise a client on whether or not to go to trial when all you have is the prosecutor's assurance that he is guilty. You need to know what the evidence is, and the prosecutor is in total control of the flow of information.
In contrast to what you have access to in criminal cases, in civil cases you can obtain almost anything. Most of the time is civil litigation is devoted to discovery. You can file interrogatories, requests for production and take depositions. In the process you can learn everything about the case, and the parties. You can sue someone for $1,000.00 and find out almost everything about them. If you look at the rules of discovery, you would think civil cases are more important than criminal cases.
Discovery reform has been addressed in the last several sessions of the legislature, without much success. Prosecutors are obviously reluctant to turn over what they have - they like it the way it is. As with most criminal justice issues, anything that appears to be favor criminal defendants is opposed. That belief system will rarely succumb to logic and common sense.
The fact is that adopting uniform rules of discovery would streamline the criminal justice process. Access to information can do nothing but help move cases along. When you know what the evidence is, you can make an informed decision. Providing that information early means cases can be resolved quicker. Even if the case has to go to trial, what's wrong with a defendant knowing all the evidence?
The legislature will meet again soon, and you can always hope this session will produce something. I'm not going to hold my breath though....
