CRIMINAL CRIMINAL DISCOVERY AND DISCOVERY AND

INSPECTIONINSPECTION

March 2014March 2014

““There is no constitutional right to general There is no constitutional right to general discovery in a criminal case.”discovery in a criminal case.”

Pennsylvania v. RitchiePennsylvania v. Ritchie, 480 U.S. 39 (1987). , 480 U.S. 39 (1987).

““The State is not obliged to make an The State is not obliged to make an investigation or to gather evidence for the investigation or to gather evidence for the defendant. The discovery rules do not defendant. The discovery rules do not require disclosure of information not known require disclosure of information not known by the State.by the State. State v. Schiefelbein State v. Schiefelbein, 230 , 230 S.W.3d 88, 147 (Tenn. Crim. App. 2007).S.W.3d 88, 147 (Tenn. Crim. App. 2007).

6 Authorities Regulating 6 Authorities Regulating DiscoveryDiscovery

Tenn. R. Crim P. 16 – Discovery and Tenn. R. Crim P. 16 – Discovery and InspectionInspection

Brady v. Maryland – Brady v. Maryland – Exculpatory EvidenceExculpatory Evidence T. C. A. § 40-17-106 – Names of WitnessesT. C. A. § 40-17-106 – Names of Witnesses Tenn. R. Crim. P. 12.1 – Alibi WitnessesTenn. R. Crim. P. 12.1 – Alibi Witnesses Tenn. R. Crim. P. 26.2 – Witness StatementsTenn. R. Crim. P. 26.2 – Witness Statements Tenn. R Evid 705 – Disclosure of Expert Tenn. R Evid 705 – Disclosure of Expert

Facts Facts or Data.or Data.

TRCP 16TRCP 16

Rule 16 has 4 important parts:Rule 16 has 4 important parts: A) Disclosure of Evidence by the A) Disclosure of Evidence by the

StateState B) Disclosure of Evidence by the B) Disclosure of Evidence by the

DefendantDefendant C) Continuing Duty to Disclose, and C) Continuing Duty to Disclose, and D) Regulating Discovery D) Regulating Discovery

Rule 16 (a) – Disclosure Rule 16 (a) – Disclosure of Evidence by the Stateof Evidence by the State

There are 7 types of things listed that There are 7 types of things listed that the State must disclose, all starting with the State must disclose, all starting with “Upon a defendant’s request, the state “Upon a defendant’s request, the state shall ….”shall ….”

Rule 16 doesn’t state that the request Rule 16 doesn’t state that the request must be in writing.must be in writing.

Each type of thing discoverable is limited Each type of thing discoverable is limited in nature, and is discoverable only if in nature, and is discoverable only if “within the state’s possession, custody or “within the state’s possession, custody or control.”control.”

Rule 16 permits the defendant to Rule 16 permits the defendant to discover any statements made by him, discover any statements made by him, his prior record, documents and his prior record, documents and tangible objects, and reports of tests tangible objects, and reports of tests and examinations, but only to the extent and examinations, but only to the extent that the information is in the that the information is in the "possession, custody, or control of the "possession, custody, or control of the state.“ state.“

State v. SchiefelbeinState v. Schiefelbein, 230 S.W.3d 88, , 230 S.W.3d 88, 147 (Tenn. Crim. App. 2007).147 (Tenn. Crim. App. 2007).

““The record indicates that the photograph The record indicates that the photograph was taken by Chief Graves on the morning of was taken by Chief Graves on the morning of trial. Clearly, the State could not have shown trial. Clearly, the State could not have shown the photograph to [the defendant] before the the photograph to [the defendant] before the day of trial because the photograph did not day of trial because the photograph did not exist before that time. Because [Rule 16(a)] exist before that time. Because [Rule 16(a)] only applies to documents and tangible only applies to documents and tangible objects that are ‘within the possession, objects that are ‘within the possession, custody or control of the state,’ [Rule 16] was custody or control of the state,’ [Rule 16] was not violated in this case.not violated in this case..” State v. Harris, 30 .” State v. Harris, 30 S.W.3d 345, 349 (Tenn. Crim. App. 1999).S.W.3d 345, 349 (Tenn. Crim. App. 1999).

Harris Harris cited cited State v. Hutchison, 898 State v. Hutchison, 898 S.W.2d 161, 167-68 (Tenn. 1994)S.W.2d 161, 167-68 (Tenn. 1994), , holding that where the State did not holding that where the State did not have certain documents in its have certain documents in its control until the middle of the trial, control until the middle of the trial, introduction of the documents did introduction of the documents did not violate Rule 16.not violate Rule 16.

A – Defendant’s Oral A – Defendant’s Oral StatementStatement

““defendant's oral statements made defendant's oral statements made before or after arrest before or after arrest

in response to interrogation in response to interrogation by any person the defendant knew by any person the defendant knew

was a law-enforcement officer was a law-enforcement officer if the state intends to offer the if the state intends to offer the

statement in evidence at the trial.statement in evidence at the trial.

““Rule 16 does not apply to mandate Rule 16 does not apply to mandate disclosure of the defendant's oral disclosure of the defendant's oral statements to Dr. Moore because the statements to Dr. Moore because the State's expert, Dr. Moore, is not a "person State's expert, Dr. Moore, is not a "person the defendant knew [to be] a law-the defendant knew [to be] a law-enforcement officer.” …. Rule 26.2 does not enforcement officer.” …. Rule 26.2 does not apply in this case because the statement apply in this case because the statement the defendant sought was not a "statement the defendant sought was not a "statement of the witness," Dr. Moore, but the of the witness," Dr. Moore, but the defendant's own statement.” defendant's own statement.” SchiefelbeinSchiefelbein at 148. at 148.

B - Defendant’s Written B - Defendant’s Written or Recorded Statementor Recorded Statement

defendant's relevant written or defendant's relevant written or recorded statements, ..., if:recorded statements, ..., if:

the statement is within the state's the statement is within the state's possession, custody, or control; andpossession, custody, or control; and

the district attorney general knows–the district attorney general knows–or through due diligence could or through due diligence could know–that the statement exists.know–that the statement exists.

What is Relevant?What is Relevant?

““The term ‘relevant,’ as used in Rule The term ‘relevant,’ as used in Rule 16(a)(1)(A), means relevant to the 16(a)(1)(A), means relevant to the crimes alleged in the indictment.” crimes alleged in the indictment.” State v. State v. VanderfordVanderford, , 980980 S.W.2d  S.W.2d 390, 398 (Tenn. Crim. App. 1997). 390, 398 (Tenn. Crim. App. 1997).

(Audio tapes between the CI and the (Audio tapes between the CI and the defendant are not discoverable in a defendant are not discoverable in a Search Warrant case.)Search Warrant case.)

D – Co-DefendantsD – Co-Defendants

when the state decides to place when the state decides to place codefendants on trial jointly, the state codefendants on trial jointly, the state shall promptly furnish each defendant shall promptly furnish each defendant …. with all information discoverable …. with all information discoverable under [A and B] as to each codefendant.under [A and B] as to each codefendant.

Note that E (defendants’ prior record), Note that E (defendants’ prior record), F (documents and objects) and G F (documents and objects) and G (Reports of examinations and tests) are (Reports of examinations and tests) are not included.not included.

E – Defendant’s Prior E – Defendant’s Prior RecordRecord

a copy of the defendant's prior criminal a copy of the defendant's prior criminal record, if any, that is within the state's record, if any, that is within the state's possession, custody, or control if the possession, custody, or control if the district attorney general knows–or district attorney general knows–or through due diligence could know–that through due diligence could know–that the record exists.the record exists.

An enhanced punishment notice or 609 An enhanced punishment notice or 609 notice filed prior to trial will suffice. notice filed prior to trial will suffice. However …However …

SentencingSentencing

The State is obligated to give the The State is obligated to give the defendant copies of certified copies defendant copies of certified copies of prior convictions if it intends to of prior convictions if it intends to introduce them at the sentencing introduce them at the sentencing hearing. They are discoverable hearing. They are discoverable under Rule 16 as a document (F). under Rule 16 as a document (F).

State v. AndersonState v. Anderson, 894 SW2d 320, , 894 SW2d 320, 322-23 (Tenn. Crim. App. 1994).322-23 (Tenn. Crim. App. 1994).

F – Documents and F – Documents and ObjectsObjects

inspect and copy or photograph books, inspect and copy or photograph books, papers, documents, photographs, tangible papers, documents, photographs, tangible objects, buildings, or places ... if the item is objects, buildings, or places ... if the item is within the state's possession, custody, or within the state's possession, custody, or control and:control and:

(i(i) the item is material to preparing the ) the item is material to preparing the defense;defense;

(ii) (ii) the government intends to use the item in the government intends to use the item in its case-in-chief at trial; orits case-in-chief at trial; or

(iii) (iii) the item was obtained from or belongs to the item was obtained from or belongs to the defendant.the defendant.

G – Reports of G – Reports of ExaminationsExaminations

and Tests and Tests results or reports of physical or mental results or reports of physical or mental

examinations, and of scientific tests or examinations, and of scientific tests or experiments if:experiments if:

(i(i) …state's possession, custody, or control;) …state's possession, custody, or control; (ii(ii) the district attorney general knows–or ) the district attorney general knows–or

through due diligence could know–that the through due diligence could know–that the item exists; anditem exists; and

(iii) (iii) the item is material to preparing the the item is material to preparing the defense or the state intends to use the item defense or the state intends to use the item in its case-in-chief at trial.in its case-in-chief at trial.

Not Discoverable under Not Discoverable under Rule 16Rule 16

Rule 16(a)(2) sets out what is Rule 16(a)(2) sets out what is nonot t discoverable:discoverable:

reports, memoranda, or other internal reports, memoranda, or other internal state documents made by the district state documents made by the district attorney general or other state agents or attorney general or other state agents or law enforcement officers in connection law enforcement officers in connection with investigating or prosecuting the case. with investigating or prosecuting the case.

Nor does this rule authorize discovery of Nor does this rule authorize discovery of statements made by state witnesses or statements made by state witnesses or prospective state witnesses. prospective state witnesses.

Defendant convicted of murder got the Defendant convicted of murder got the state’s file and found a note in the file state’s file and found a note in the file from the ADA stating that it was a good from the ADA stating that it was a good case but the two eyewitnesses “are case but the two eyewitnesses “are juveniles who have already lied juveniles who have already lied repeatedly.” He filed a writ of error repeatedly.” He filed a writ of error coram nobis based on this newly coram nobis based on this newly discovered evidence. discovered evidence.

When his Writ was denied and When his Writ was denied and appealed, the Supreme Court held that appealed, the Supreme Court held that

““the handwritten note expressing the the handwritten note expressing the assistant prosecutor's opinion as to the assistant prosecutor's opinion as to the witnesses' credibility was attorney witnesses' credibility was attorney work product. As such, it was neither work product. As such, it was neither discoverable nor admissible.”discoverable nor admissible.”

Wilson v. State, 367 S.W.3d 229, 232 (Tenn. 2012)

Witness names are not Witness names are not covered by Rule 16covered by Rule 16

Rule 16 does not require nor Rule 16 does not require nor authorize pretrial discovery of authorize pretrial discovery of names and addresses of the State's names and addresses of the State's witnesses. witnesses. State v. MartinState v. Martin, 634 , 634 S.W.2d 639, 643 (Tenn. Crim. App. S.W.2d 639, 643 (Tenn. Crim. App. 1982). 1982).

The obligation of the State to furnish The obligation of the State to furnish witness names is derived from Tenn. Code witness names is derived from Tenn. Code Ann.§ 40-17-106, which states as follows: Ann.§ 40-17-106, which states as follows:

““It is the duty of the district attorney It is the duty of the district attorney general to endorse on each indictment or general to endorse on each indictment or presentment, at the term at which the presentment, at the term at which the indictment or presentment is found, the indictment or presentment is found, the names of the witnesses as the district names of the witnesses as the district attorney general intends shall be attorney general intends shall be summoned in the cause ... .”summoned in the cause ... .”

The statute “is directory only and does The statute “is directory only and does not necessarily disqualify a witness not necessarily disqualify a witness whose name does not appear on the whose name does not appear on the indictment from testifying. If the name indictment from testifying. If the name of a witness the State intends to call is of a witness the State intends to call is not listed on the indictment, the State not listed on the indictment, the State should ordinarily give the defense should ordinarily give the defense notice, but lack of notice is not fatal.” notice, but lack of notice is not fatal.” State v. KendricksState v. Kendricks, 947 S.W.2d 875, 883 , 947 S.W.2d 875, 883 (Tenn. Crim. App. 1997).(Tenn. Crim. App. 1997).

The purpose of this statute is to The purpose of this statute is to prevent surprise to the defendant at prevent surprise to the defendant at trial and to permit the defendant to trial and to permit the defendant to prepare his or her defense to the prepare his or her defense to the State's proof. However, this duty is State's proof. However, this duty is merely directory, not mandatory. merely directory, not mandatory. State v. HarrisState v. Harris, 839 S.W.2d 54, 69 , 839 S.W.2d 54, 69 (Tenn. 1992). (Tenn. 1992).

““A defendant will be entitled to relief A defendant will be entitled to relief for nondisclosure only if he or she for nondisclosure only if he or she can demonstrate prejudice, bad can demonstrate prejudice, bad faith, or undue advantage.faith, or undue advantage. The The determination of whether to allow determination of whether to allow the witness to testify is left to the the witness to testify is left to the sound discretion of the trial judge.”sound discretion of the trial judge.”

State v. KendricksState v. Kendricks, 947 S.W.2d 875, , 947 S.W.2d 875, 883 (Tenn. Crim. App. 1996)883 (Tenn. Crim. App. 1996)

State v. WilsonState v. Wilson, 164 , 164 S.W.3d 355, 362-63 S.W.3d 355, 362-63

(Tenn. Crim. App. 2003)(Tenn. Crim. App. 2003)““The purpose of furnishing names on an The purpose of furnishing names on an indictment or presentment is to prevent indictment or presentment is to prevent surprise to the defense. Evidence should not surprise to the defense. Evidence should not be excluded except when the defendant is be excluded except when the defendant is actually prejudiced by the failure to comply actually prejudiced by the failure to comply with the rule and when the prejudice cannot with the rule and when the prejudice cannot otherwise be eradicated.otherwise be eradicated. In this context, In this context, it is it is not the prejudice which resulted from the not the prejudice which resulted from the witnesses testimony but the prejudice which witnesses testimony but the prejudice which resulted from the defendant's lack of notice resulted from the defendant's lack of notice which is relevantwhich is relevant..””

Confidential Informant Confidential Informant PrivilegePrivilege

““The privilege is based on public policy and The privilege is based on public policy and seeks to encourage citizens to assist in seeks to encourage citizens to assist in crime detection and prevention by giving crime detection and prevention by giving information to law enforcement officials information to law enforcement officials without unduly exposing themselves to the without unduly exposing themselves to the danger inherent in such laudable activity danger inherent in such laudable activity and to make possible their continued and to make possible their continued usefulness in future disclosures that the usefulness in future disclosures that the revelation of their identity would probably revelation of their identity would probably hamper and prevent. …hamper and prevent. …

““This Court has held that a This Court has held that a defendant has no constitutional right defendant has no constitutional right to require disclosure of the to require disclosure of the informant's identity, and the informant's identity, and the decision is left to the discretion of decision is left to the discretion of the trial court.”the trial court.”

House v. State, 44 S.W.3d 508, 512 House v. State, 44 S.W.3d 508, 512 (Tenn. 2001). (Tenn. 2001).

A defendant is also not entitled to A defendant is also not entitled to disclosure of a confidential disclosure of a confidential informant's identity when the informant's identity when the defendant's sole and exclusive defendant's sole and exclusive reason for seeking the identity is to reason for seeking the identity is to attack the validity of a search attack the validity of a search warrant. warrant. State v. AshState v. Ash, 729 S.W.2d , 729 S.W.2d 275, 278 (Tenn. Crim. App. 1986). 275, 278 (Tenn. Crim. App. 1986).

The state is required to divulge the identity of The state is required to divulge the identity of a confidential informant to the defendant a confidential informant to the defendant when: (a) disclosure would be relevant and when: (a) disclosure would be relevant and helpful to the defendant in presenting his helpful to the defendant in presenting his defense and is essential to a fair trial, (b) the defense and is essential to a fair trial, (b) the informant was a participant in the crime, (c) informant was a participant in the crime, (c) the informant was a witness to the crime, or the informant was a witness to the crime, or (d) the informant has knowledge which is (d) the informant has knowledge which is favorable to the defendant.favorable to the defendant.

State v. Vanderford, 980 S.W.2d 390, 396-97 State v. Vanderford, 980 S.W.2d 390, 396-97 (Tenn. Crim. App. 1997) (Tenn. Crim. App. 1997)

““The state may shield the identity of a The state may shield the identity of a material confidential informant seeking a material confidential informant seeking a protective order pursuant to Tenn. R. Crim. protective order pursuant to Tenn. R. Crim. P. 16(d)(1). When appropriate, the state can P. 16(d)(1). When appropriate, the state can seek a protective order seek a protective order ex parteex parte. Cases . Cases involving confidential informant-defendant involving confidential informant-defendant conversations qualify for an conversations qualify for an ex parte ex parte hearing. If the rule was otherwise, the hearing. If the rule was otherwise, the state's ability to protect the identity of the state's ability to protect the identity of the informant would be an effort in futility. informant would be an effort in futility. VanderfordVanderford at 399. at 399.

The trial judge may have to use other The trial judge may have to use other measures to both guarantee a fair measures to both guarantee a fair trial and also protect the informant, trial and also protect the informant, such as having the State produce the such as having the State produce the informant for an informant for an in camera in camera meeting meeting with defense counsel and the court.with defense counsel and the court.

The State can also The State can also nolle prosequinolle prosequi the the indictment rather than divulge the indictment rather than divulge the name. name.

Records of WitnessesRecords of Witnesses

Although witness’s prior records are not Although witness’s prior records are not covered by Rule 16, in covered by Rule 16, in Irick v. StateIrick v. State, 973 , 973 S.W.2d 643, 657 (Tenn. Crim. App. 1998), S.W.2d 643, 657 (Tenn. Crim. App. 1998), the State appealed the trial court's the State appealed the trial court's granting of the defense’s motion for granting of the defense’s motion for witness records. Citing witness records. Citing Graves v. StateGraves v. State, , 489 S.W.2d 74, 83 (Tenn. Crim. App. 489 S.W.2d 74, 83 (Tenn. Crim. App. 1972), the 1972), the IrickIrick court held that although court held that although not required to, a trial court may grant not required to, a trial court may grant such a request in the interest of justice.such a request in the interest of justice.

Juvenile RecordsJuvenile Records

Juvenile records other than petitions Juvenile records other than petitions and orders, such as psychological and orders, such as psychological reports and medical records, are reports and medical records, are confidential pursuant to T.C.A. § 37-confidential pursuant to T.C.A. § 37-1-153.1-153.

These documents are “not subject to These documents are “not subject to disclosure at any time to any disclosure at any time to any person.” person.” Berry v. StateBerry v. State, 366 S.W.3d , 366 S.W.3d 160, 180 (Tenn. Crim. App., 2011). 160, 180 (Tenn. Crim. App., 2011).

Child Sex Abuse Child Sex Abuse

Child sex abuse forensic interviews, Child sex abuse forensic interviews, statements, summaries and records are statements, summaries and records are not discoverable pursuant to Rule 16 not discoverable pursuant to Rule 16 unless the State will be introducing the unless the State will be introducing the forensic interview in its case in chief as forensic interview in its case in chief as an exhibit. They are also confidential an exhibit. They are also confidential pursuant to Tenn. Code Ann. § 37-1-612.pursuant to Tenn. Code Ann. § 37-1-612.

The trial judge may have to examine The trial judge may have to examine them them in camerain camera if there is a if there is a Brady Brady question, however.question, however.

Expert “Raw Data” - Expert “Raw Data” - T.R.E. 705T.R.E. 705

Tennessee Rule of Evidence 705 Tennessee Rule of Evidence 705 states that an expert "may testify in states that an expert "may testify in terms of opinion or inference and terms of opinion or inference and give reasons without prior disclosure give reasons without prior disclosure of the underlying facts or data, of the underlying facts or data, unless the court requires otherwise. unless the court requires otherwise. The expert may in any event be The expert may in any event be required to disclose the underlying required to disclose the underlying facts or data on cross-examination."facts or data on cross-examination."

SchiefelbeinSchiefelbein, citing an unpublished , citing an unpublished case with approval, held that “[a]s a case with approval, held that “[a]s a general rule, a trial court will require general rule, a trial court will require disclosure of the underlying data of the disclosure of the underlying data of the expert's opinion when the court expert's opinion when the court 'believes that the party opponent will 'believes that the party opponent will be unable to cross-examine effectively be unable to cross-examine effectively and the reason for such inability is and the reason for such inability is other than the prejudicial nature of other than the prejudicial nature of such facts or data.”such facts or data.”

““the trial court did not abuse its the trial court did not abuse its discretion in requiring the defendant discretion in requiring the defendant to produce his expert's clinical notes to produce his expert's clinical notes because it would have been because it would have been ‘extremely difficult, if not ‘extremely difficult, if not impossible, for the assistant district impossible, for the assistant district attorney general to cross-examine attorney general to cross-examine [the defense expert] without access [the defense expert] without access to the notes.’” to the notes.’”

““Initially, we note that the interests of Initially, we note that the interests of justice are better served in these justice are better served in these situations when the court at least reviews situations when the court at least reviews the requested materialsthe requested materials in camera. in camera. Then, Then, after exercising its discretion in deciding after exercising its discretion in deciding the issue, the court could place the the issue, the court could place the materials under seal, if necessary, for materials under seal, if necessary, for purposes of facilitating appellate review.” purposes of facilitating appellate review.” State v. Schiefelbein, State v. Schiefelbein, 230 S.W.3d 88, 147-230 S.W.3d 88, 147-48 (Tenn. Crim. App. 2007)48 (Tenn. Crim. App. 2007)

Rule 16(b) - Reciprocal Rule 16(b) - Reciprocal DiscoveryDiscovery

The defense only has to disclose two The defense only has to disclose two types of things:types of things:

A – Documents and Objects andA – Documents and Objects and

B – Reports of Examinations and TestsB – Reports of Examinations and Tests

Each one starts with “If the defendant Each one starts with “If the defendant requests disclosure under subdivision requests disclosure under subdivision [F or G] and the state complies…” and [F or G] and the state complies…” and must be within the defense’s must be within the defense’s possession, custody or control.possession, custody or control.

A – Documents and A – Documents and Tangible ObjectsTangible Objects

books, papers, documents, books, papers, documents, photographs, tangible objects, or photographs, tangible objects, or copies or portions of these items if:copies or portions of these items if:

(i(i) the item is within the ) the item is within the defendant's possession, custody, or defendant's possession, custody, or control; andcontrol; and

(ii(ii) the defendant intends to ) the defendant intends to introduce the item as evidence in the introduce the item as evidence in the defendant's case-in-chief at trial.defendant's case-in-chief at trial.

B – Reports of B – Reports of Examinations Examinations

and Testsand Tests any results or reports of physical or mental any results or reports of physical or mental

examinations and of scientific tests or examinations and of scientific tests or experiments … if:experiments … if:

(i(i) possession, custody, or control; and) possession, custody, or control; and (ii(ii) the defendant intends to introduce the ) the defendant intends to introduce the

item as evidence in the defendant's case-in-item as evidence in the defendant's case-in-chief; orchief; or

(iii) (iii) the defendant intends to call … the the defendant intends to call … the person who prepared the report, and the person who prepared the report, and the results or reports relate to the witness's results or reports relate to the witness's testimony.testimony.

Rule 16(b)(2) – What is Rule 16(b)(2) – What is Not Subject to Defense Not Subject to Defense

DisclosureDisclosure Except as to scientific or medical reports …Except as to scientific or medical reports … (A) (A) reports, memoranda, or other internal reports, memoranda, or other internal

defense documents made by the defendant defense documents made by the defendant or the defendant's attorneys or agents in or the defendant's attorneys or agents in connection with the investigation or defense connection with the investigation or defense oror

(B) (B) a statement made by the defendant to a statement made by the defendant to the defendant's agents or attorneys or the defendant's agents or attorneys or statements by actual or prospective state or statements by actual or prospective state or defense witnesses made to the defendant or defense witnesses made to the defendant or the defendant's agents or attorneys.the defendant's agents or attorneys.

““the requirement that the defendant the requirement that the defendant provide reciprocal discovery does not provide reciprocal discovery does not extend to … statements made by witnesses extend to … statements made by witnesses for the state or the defense to the for the state or the defense to the defendant's agents. Tenn. R. Crim. P. 16(b)defendant's agents. Tenn. R. Crim. P. 16(b)(2). .... A defense investigator's report of an (2). .... A defense investigator's report of an interview with the victim constitutes work interview with the victim constitutes work product, which is excluded from reciprocal product, which is excluded from reciprocal discovery.” discovery.” State v. WyrickState v. Wyrick, 62 S.W.3d 751, , 62 S.W.3d 751, 789 (Tenn. Crim. App. 2001)789 (Tenn. Crim. App. 2001)

Rule 16 (c) – Continuing Rule 16 (c) – Continuing Duty to Disclose Duty to Disclose

A party who discovers additional evidence A party who discovers additional evidence or material before or during trial shall or material before or during trial shall promptly promptly disclose its disclose its existenceexistence to the to the other party, the other party's attorney, or other party, the other party's attorney, or the court if:the court if:

(1) the evidence is subject to (1) the evidence is subject to discovery or inspection under this rule, anddiscovery or inspection under this rule, and

(2) the other party previously (2) the other party previously requested, or the court ordered, its requested, or the court ordered, its production.production.

Rule 16(d) – Regulating Rule 16(d) – Regulating DiscoveryDiscovery

At any time, for good cause shown, At any time, for good cause shown, the court the court may deny, restrict, or defer discovery or may deny, restrict, or defer discovery or inspection, or grant other appropriate relief. inspection, or grant other appropriate relief. On a party's motion, the court may permit On a party's motion, the court may permit the party to make such showing, in whole or the party to make such showing, in whole or in part, by written statement that the court in part, by written statement that the court will inspect will inspect ex parteex parte. If relief is granted . If relief is granted following an following an ex parte ex parte submission, the court submission, the court shall preserve under seal in the court shall preserve under seal in the court records the entire text of the party's written records the entire text of the party's written statement.statement.

Sanctions for Non-Sanctions for Non-compliancecompliance

the court may:the court may: (A) (A) order that party to permit the discovery order that party to permit the discovery

or inspection; specify its time, place, and or inspection; specify its time, place, and manner; and prescribe other just terms or manner; and prescribe other just terms or conditions;conditions;

(B) (B) grant a continuance;grant a continuance; (C) (C) prohibit the party from introducing the prohibit the party from introducing the

undisclosed evidence; orundisclosed evidence; or (D) (D) enter such other order as it deems just enter such other order as it deems just

under the circumstances.under the circumstances.

Although Tennessee Rule of Criminal Although Tennessee Rule of Criminal Procedure 16(d)(2) does not specifically Procedure 16(d)(2) does not specifically provide that a trial court may dismiss an provide that a trial court may dismiss an indictment when a party fails to comply indictment when a party fails to comply with a discovery order, we believe that with a discovery order, we believe that authority is apparent under the provision authority is apparent under the provision granting the court the authority to "enter granting the court the authority to "enter such other order as it deems just under such other order as it deems just under the circumstances.“ the circumstances.“ State v. CollinsState v. Collins, 35 , 35 S.W.3d 582, 585 (Tenn. Crim. App. 2000) S.W.3d 582, 585 (Tenn. Crim. App. 2000)

Tenn. R. Crim. P. 2Tenn. R. Crim. P. 2Purpose and Purpose and ConstructionConstruction

These rules are intended to provide for These rules are intended to provide for the just determination of every criminal the just determination of every criminal proceeding. They shall be construed to proceeding. They shall be construed to secure (a) simplicity in procedure; secure (a) simplicity in procedure;

(b) fairness in administration; (b) fairness in administration; and and

(c) the elimination of: (c) the elimination of:

(1)unjustifiable expense and delay; (1)unjustifiable expense and delay; and (2)unnecessary claims on the time and (2)unnecessary claims on the time of jurors.of jurors.

Brady v. MarylandBrady v. Maryland

In In Brady v. MarylandBrady v. Maryland, 373 U.S. 83, 83 , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the Supreme Court held that the Supreme Court held that "suppression by the prosecution of "suppression by the prosecution of evidence favorable to an accused upon evidence favorable to an accused upon request violates due process where the request violates due process where the evidence is material either to guilt or evidence is material either to guilt or to punishment, to punishment, irrespective of good irrespective of good faith or bad faith of the prosecutionfaith or bad faith of the prosecution.”.”

InIn United States v. Bagley United States v. Bagley, 473 U.S. 667, , 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), the Supreme Court held that (1985), the Supreme Court held that both exculpatory and impeachment both exculpatory and impeachment evidence fall under the evidence fall under the BradyBrady rule. rule.

The duty to disclose extends to all The duty to disclose extends to all "favorable information" regardless of "favorable information" regardless of whether the evidence is admissible at whether the evidence is admissible at trial. trial. Johnson v. StateJohnson v. State, 38 S.W.3d 52, 56 , 38 S.W.3d 52, 56 (Tenn. 2001).(Tenn. 2001).

However, the state "is not required to However, the state "is not required to disclose information that the defendant disclose information that the defendant already possesses or is able to obtain." already possesses or is able to obtain." State v. MarshallState v. Marshall, 845 S.W.2d 228, 233 , 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992). Nor is the (Tenn. Crim. App. 1992). Nor is the state required to disclose information state required to disclose information which is not possessed by or under the which is not possessed by or under the control of the prosecution or other control of the prosecution or other governmental agency.governmental agency. Id. Id.

Jordan v. StateJordan v. State, , 343 S.W.3d 84, 96-97 343 S.W.3d 84, 96-97

(Tenn. 2010) (Tenn. 2010) ““Before an accused is entitled to relief Before an accused is entitled to relief under this theory, he must establish under this theory, he must establish several prerequisites: (a) the defendant several prerequisites: (a) the defendant requested the information, unless the requested the information, unless the information was obviously exculpatory; information was obviously exculpatory; (b) the prosecution must have (b) the prosecution must have suppressed the evidence; (c) the suppressed the evidence; (c) the evidence suppressed must have been evidence suppressed must have been favorable to the accused; and (d) the favorable to the accused; and (d) the evidence must have been material.” evidence must have been material.”

““Information that is favorable to the Information that is favorable to the accused may consist of evidence that accused may consist of evidence that 'could exonerate the accused, 'could exonerate the accused, corroborate[ ] the accused's position in corroborate[ ] the accused's position in asserting his innocence, or possess[ ] asserting his innocence, or possess[ ] favorable information that would have favorable information that would have enabled defense counsel to conduct enabled defense counsel to conduct further and possibly fruitful investigation further and possibly fruitful investigation regarding the fact that someone other regarding the fact that someone other than the appellant killed the victim.’”than the appellant killed the victim.’”

Favorable evidence includes evidence Favorable evidence includes evidence that "challenges the credibility of a key that "challenges the credibility of a key prosecution witness." prosecution witness."

Evidence is considered material “only if Evidence is considered material “only if there is a reasonable probability that, there is a reasonable probability that, had the evidence been disclosed to the had the evidence been disclosed to the defense, the results of the proceeding defense, the results of the proceeding would have been different.” would have been different.”

The duty to disclose exculpatory evidence The duty to disclose exculpatory evidence extends to all "favorable information" extends to all "favorable information" irrespective of whether the evidence is irrespective of whether the evidence is admissible at trial. The prosecution's duty admissible at trial. The prosecution's duty to disclose Brady material also applies to to disclose Brady material also applies to evidence affecting the credibility of a evidence affecting the credibility of a government witness, including evidence of government witness, including evidence of any agreement or promise of leniency any agreement or promise of leniency given to the witness in exchange for given to the witness in exchange for favorable testimony against an accused. favorable testimony against an accused.

While Brady does not require the state to While Brady does not require the state to investigate for the defendant, it does investigate for the defendant, it does burden the prosecution with the burden the prosecution with the responsibility of disclosing statements of responsibility of disclosing statements of witnesses favorable to the defense. witnesses favorable to the defense. HoweverHowever, this duty does not extend to , this duty does not extend to information that the defense already information that the defense already possesses, or is able to obtain, or to possesses, or is able to obtain, or to information not in the possession or control information not in the possession or control of the prosecution or another governmental of the prosecution or another governmental agency. agency.

Prior record of witnessesPrior record of witnesses

The court in The court in State v. KingState v. King, 905 S.W.2d 207, , 905 S.W.2d 207, 212 (Tenn. Crim. App. 1995), held as 212 (Tenn. Crim. App. 1995), held as follows:follows:

The criminal history of a victim is not the The criminal history of a victim is not the kind of information the State has a duty to kind of information the State has a duty to produce pursuant to Rule 16 of the produce pursuant to Rule 16 of the Tennessee Rules of Criminal procedure. Tennessee Rules of Criminal procedure. Further, as to the Further, as to the Brady Brady claim, the claim, the defendant has not shown nor does the defendant has not shown nor does the record reveal that the State possessed the record reveal that the State possessed the more recent charges against the victim.more recent charges against the victim.

““The defendant concludes that with The defendant concludes that with this information he would have been this information he would have been able to "absolutely" impeach the able to "absolutely" impeach the victim regarding his statement which victim regarding his statement which gave the appearance that he had not gave the appearance that he had not been in trouble since 1982 or 1983. been in trouble since 1982 or 1983. Again, the record does not indicate Again, the record does not indicate that these charges were known to that these charges were known to the parties during the trial.” the parties during the trial.”

The “The “ReidReid Order” Order”

In In State v. ReidState v. Reid, , 981981 S.W.2d 166 (Tenn.  S.W.2d 166 (Tenn. 1998), the Supreme Court set out the 1998), the Supreme Court set out the procedure for discovery of expert procedure for discovery of expert testimony of the defendant’s mental testimony of the defendant’s mental condition in murder trials with a condition in murder trials with a sentencing phase. The trial judge should sentencing phase. The trial judge should enter a “enter a “Reid OrderReid Order” to schedule discovery ” to schedule discovery prior to trial to allow the State to have the prior to trial to allow the State to have the defendant examined by its expert.defendant examined by its expert.

The order should set out deadlines as The order should set out deadlines as follows:follows:

1) For the defense to file a mental 1) For the defense to file a mental condition notice pursuant to TRCP 12.2condition notice pursuant to TRCP 12.2

2) For the State to select an expert to 2) For the State to select an expert to examine the defendantexamine the defendant

3) For the State expert to turn his/her 3) For the State expert to turn his/her report over to the defense, but report over to the defense, but notnot the the statestate

The state and defense reports are filed The state and defense reports are filed under seal with the court and released to under seal with the court and released to the state only upon conviction and the the state only upon conviction and the defense declaration that they will put on defense declaration that they will put on mental mitigation. mental mitigation.

Your capital case attorney will have a Your capital case attorney will have a pattern pattern ReidReid order for you to use. It order for you to use. It should be filed at least 4 months prior to should be filed at least 4 months prior to trial even if the state is only asking for trial even if the state is only asking for life without parole. life without parole.

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