Reaping the Whirlwind of Stingy Discovery

Law, Law Practice

When I was a prosecutor, I generally practiced open-file discovery. That means that if I had a piece of evidence, unless I had a specific, articulable, and legally sufficient reason to withhold it, I dumped it in a box with everything else and shipped it to the defense as soon as I received it. Few things got held back: internal strategy and case evaluation memoranda, the home addresses and personal identity information about witnesses, the identify of confidential informants, and very rarely reports revealing confidential investigative means and methods that had not yielded evidence against the defendant. In many cases I wound up holding back nothing at all. I didn't bother with timing my disclosures to my own benefit; I generally sent things out the same day I received them myself.

Did I do this because I'm extremely ethical?

Nope. I did it mostly because I'm careless and lazy.

Numerous federal prosecutors are getting into trouble these days over withholding evidence, sometimes by apparent design and sometimes by apparent carelessness. In Boston, Assistant U.S. Attorney Suzanne Sullivan is waiting for the hammer to fail as a U.S. district judge decides whether and how to sanction her for failing to produce contradictory prior testimony by a police witness. In Washington, career federal prosecutors are hiring criminal defense attorneys of their own as a special prosecutor investigates their apparent misconduct in the prosecution of Alaska Senator Ted Stevens, including repeated nondisclosure of potentially exculpatory evidence. In Florida, a federal judge sanctioned the United States and its attorneys $600,000 for a bizarre chain of misconduct that included federal prosecutors' failure to disclose that they were taping conversations with defense lawyers as part of a bogus witness tampering investigation.

There's a common theme behind all of these cases: federal prosecutors acting as if they are mere private civil litigators, fighting to win by doing whatever is at least arguably allowed. This attitude leads prosecutors to look at evidence in their possession in a dangerous way: they ask "why must I turn this over?", and even more perilously, "if I turn this over, will it help the defense and make it harder to convict the defendant?" These are the wrong questions.

First, prosecutors are not mere litigants charged to win, but officials charged with assuring justice is done.

Second, prosecutors are frequently younger, less experienced, and almost certainly less well versed in defense theories than defense lawyers. Therefore a prosecutor who only turns over evidence when he or she can personally spot a way it is exculpatory is flirting with disaster — prosecutors, especially young ones, lack the training, experience, and mindset necessary to discern how evidence may be useful (and even crucial) to the defense. Plus, as I used to tell young prosecutors when I mentored them, if you don't want to turn a piece of evidence over for some reason, that's a pretty good sign that it will be somehow helpful to the defense.

Third, and finally, a stingy attitude makes discovery much more complex. If you are turning everything over as you receive it unless there's some pressing and legally adequate reason to withhold it (as in the case of the identity of the confidential informant, for example, or internal case analysis memoranda), it's much easier to manage discovery, keep track of what has been produced, and avoid errors. If, on the other hand, you are holding back evidence until the last minute you can get away with producing it, and you are picking and choosing what you turn over based on your analysis of whether production is mandatory, discovery management is time-consuming and complex. Not only must you keep track of the different categories of evidence that you have and have not produced, but you must also constantly re-evaluate evidence you have previously decided to withhold in light of new evidence becoming available and as the defense's theory of the case becomes clear. Something that did not seem exculpatory a month ago may suddenly become exculpatory in light of other new evidence. In a complex case involving a lot of paper, managing such a discovery strategy becomes nearly impossible, not to mention a colossal waste of time.

That's why I practiced open-file discovery, copying stuff and sending it out as soon as I received it myself — it was quicker, simpler, and did not enhance the risks already posed by my general laziness and poor organization skills. Some prosecutors disdain this approach on the grounds that it makes life too easy for the defense — they feel that prosecutors ought to do everything they can within the bounds of the law to win, including making discovery as difficult and unrewarding as legally permissible for the defendant. I never shared that view of the prosecutor's role. As a result, I never had a discovery disclosure problem, and I gained the trust and respect of defense lawyers that I was able to use to flip cooperators and negotiate plea bargains that other less-trusted prosecutors could not get.

In most cases, the federal prosecutors looking down the barrel of career-ending sanctions would not be in their predicament if they had practiced open-file discovery.

[By the way, I don't mean to imply this is only a problem with federal prosecutors. Only recently I discovered that a prosecution witness in a state case had a prior felony that the DA had not disclosed to me. When I confronted him, he explained that he looked at the felony, and believed that the judge would probably exclude it from evidence at trial because in the DA's estimation it was more prejudicial than probative, and therefore believed he was not obligated to disclose it.]

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1 Comment

  1. Mike  •  May 13, 2009 @10:46 am

    Yeah. That's why I don't lie. My organizational skills are poor. Now what did I say to whom about what and can I say this about that when he is around but does she know? No thanks!

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