Journal of Criminal Law and Criminology

Volume 61 | Issue 1 Article 2

1970

Discovery in the Criminal ProcessJerry E. Norton

Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc

Part of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice Commons

This Comment is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.

Recommended CitationJerry E. Norton, Discovery in the Criminal Process, 61 J. Crim. L. Criminology & Police Sci. 11 (1970)

TnE JounNAL, op CnnsuNL LAw, CRansOLOGY AND POLMC SCI01DCopyright 0 1970 by Northwestern University School of Law

DISCOVERY IN THE CRIMINAL PROCESS

.JERRY E. NORTONt

"Under our criminal procedure the accused has everyadvantage. While the prosecution is held rigidly to thecharge, he need not disclose the barest outline of hisdefense. He is immune from question or comment onhis silence; he cannot be convicted when there is theleast fair doubt in the minds of any one of the twelve.Why in addition he should in advance have the wholeevidence against him to pick over at his leisure, andmake his defense, fairly or foully, I have never beenable to see .... Our dangers do not lie in too littletenderness to the accused. Our procedure has beenalways haunted by the ghost of the innocent manconvicted. It is an unreal dream. What we need tofear is the archaic formalism and the watery sentimentthat obstructs, delays, and defeats the prosecutionof crime."

-Learned Hand'

"This anachronistic apprehension that liberal dis-covery if extended to criminal causes will "inevitably"bring the serious and sinister dangers of perjury in itswake will seem strange to many when coming fromthis court which has been generally commended forits aggressive sponsorship of liberal discovery andeffective pretrial procedures in civil causes and can

point to the solid evidence of its beneficial results tothe cause of justice without that defeat of justicethrough perjury foretold by the prophets of doom. Itwill be difficult to understand why, without proofbut only from some visceral augury, we now assume that

the hazard is so much greater in criminal causes....Certainly without actual evidence and upon conjecturemerely, and in the face of the contrary proof of ourexperience in civil causes, we ought not in criminalcauses, where even life itself may be at stake, forswearin the absence of clearly established danger a tool souseful in guarding against the chance that a trial willbe a lottery or mere game of wits and the result atthe mercy of the mischiefs of surprise. We must remem-ber that society's interest is equally that the innocentshall not suffer and not alone that the guilty shallnot escape. Discovery, basically a tool for truth, is

the most effective device yet devised for the reductionof the aspect of the adversary element to a minimum."

-William J. Brennan2

t Assistant Professor of Law, Chicago-Kent Collegeof Law, Illinois Institute of Technology.

[This article is an expansion and up-to-date revisionof a thesis prepared by Professor Norton in partialfulfillment of the requirements for a Master of Lawsdegree which he received from Northwestern Univer-sity in 1967.]

1 United States v. Garsson, 291 F. 646,649 (S.D.N.Y.1923).

The adjoining quotations suggest that the con-troversy over the proper scope of criminal dis-covery is grounded in differing conceptions of thepremises underlying the criminal process. If onebegins with the belief that the criminal process isan adversary process between two relatively equalparties and that the defendant's privilege againstself-incrimination and other consttutional rightsgive him a great advantage over the prosecution,it is almost inevitable that the conclusion will bethat the scope of criminal discovery should not beexpanded. However, if one places an affirmativeduty upon the state to guarantee that the de-fendant receive a fair trial and pictures thecriminal process as an unequal contest betweenthe state with its immense investigatory resourcesand an often poor and uneducated defendant, theopposite conclusion is inevitable.

Criminal discovery in the United States hashistorically been premised on the former view ofthe criminal process. This article will examine thedevelopment and status of criminal discovery inthe United States and its underlying policy bases.The examination will encompass both constitu-tional requirements and the practical consequencesof differing standards of disclosure. The article willconclude with a review of a comprehensive pro-posal which seeks to accomodate the dictates of theConstitution and fairness to the defendant withthe preservation of ordered liberty.

THE Co0moN LAW AND THE ADVERSARY PRocEss

In order to understand the reluctance of courtsand legislatures to permit discovery in criminalcases, it is necessary to view the question againstthe background of the common law and itsdependence upon the adversary process. Surprise,rather than being regarded as the enemy of truth,was considered its strongest ally. Any proposal

tending to reduce the element of surprise wasviewed with great alarm. When the defendant,in 1792 in King v. Holland,' requested that he be

2 State v. Tune, 13 N.J. 203, 228-229, 98 A.2d 881,894-895 (1953) (dissenting opinion).

King v. Holland, 4 Durn. & East 691, 100 Eng.Rep. 1248 (K.B. 1792).

Vol. 61, No. IPrinted in U.S.A.

JERRY E. NORTON

allowed to examine the report of a board of inquirywhich had investigated his activities as an officialof the East India Company, Lord Kenyon wasincredulous.4

I am extremely clear that we ought not togrant this application. There is not principleor precedent to warrant it. Nor was such amotion as the present ever made; and if wewere to grant it, it would subvert the wholesystem of criminal law.

This prohibition of discovery applied equally toboth parties in the criminal action. In 1748, inRex v. Purnell,5 the King's Bench denied theapplication of the Attorney General to be allowedto inspect the statutes and archives of OxfordUniversity, of which one of the defendants wasVice-Chancellor. The court stated that

we all agree the rule could not be granted,because it was a criminal proceeding, andthat the motion was to make the defendantsfurnish evidence against themselves. 6

Despite this language and the further statementin Rex v. Purnell that "no man is bound to accusehimself," 7 extremely ruthless extrajudicial criminalinterrogations were permitted in that day. Ascharacterized by Yale Kamisar, the Englishcourts of that day were concerned only with whatoccurred in the "mansions" of the law and prag-matically ignored the "gatehouses." 8 Perhaps also,attempts to induce or coerce the defendant toconfess were not viewed as demanding disclosureslikely to "subvert the whole system of criminallaw." 9 Whatever the reason, the confession was anearly exception to the common law rule prohibitingdiscovery in criminal cases.

Earlier, Parliament had made other exceptionsin cases of treason. In 1695 it passed a statuterequiring delivery to a defendant accused of hightreason 9 a copy of the indictment five days beforetrial. In 1708 a statute was passed extending thisprivilege to include misprision of treason and

4 Id. at 692, 100 Eng. Rep. at 1249.5 Rex v. Purnell, 1 Wils. 239, 95 Eng. Rep. 595

(K.B. 1748).6 Id. at 242, 95 Eng. Rep. at 597.7Id. at 241, 95 Eng. Rep. at 596.8 See Y. KAmsA, CmirnAL JusTicE iN ORr Tbm,

EQUAL JusTIcE rN Tim GATEHOUSES AND MANsioNsor AnEmRcAN CRMnNAL PROcEDURE: FROM PowELLTo GiDEoN, FROM ESCOBEDO TO ... (Howard ed. 1965).

0 For a history of confessions under English law,see 3 WIGUORE, EVIDENCE, §§ 817-20 (3d ed. 1940).

10 Act for Trials in cases of Treason, 7 & 8 W. 3,c. 3 (1695).

requiring delivery of the copy of the indictmentten days before trial." The most significantchange brought about by the statute of 1708,however, was the requirement that such defendantswere also to be supplied with a list of witnesses totestify for the prosecution at trial. It has beensuggested that this exception to the common lawrule was dictated by the uncertainties of politicallife at the turn of the eighteenth century whichcaused members of Parliament to provide protec-tion in case they might be required to answercharges of high treason.12

Thus, at the time of the American revolution,no criminal discovery existed except in casesinvolving treason or extrajudicial confession.

In England, this prohibition upon discovery wasretained for approximately fifty years. In the mid-nineteenth century, acts of Parliament, court rulesand changes in professional practices dramaticallychanged the law. The institution of the grand jurydeclined and was replaced by a form of preliminaryhearing'3 At the English preliminary hearingtoday, unlike the American practice, the prosecu-tion produces all witnesses it intends to call attrial, and the testimony of each is reduced to asummary which the witness signs. This is similiarto a deposition, although there is no verbatimrecord of the witness's testimony.' 4

In addition to the preliminary hearing, aprofessional practice of disclosure developed inEngland. The prosecutor is expected to discloseto the defense attorney the names and addresses opersons having information which may be usefulto the defense. He is also expected to makemedical and police laboratory reports available tothe defense, as well as copies of the written state-ments of any defendant.' At the trial, if a witnesscontradicts a prior statement, the prosecutor isexpected to hand the statement to defense counselfor purposes of cross-examination. 6

In the United States, the institution of the

1 Act for Improving the Union of the Two Kingdoms,7 Anne, c. 21, § 11 (1708).

"1 STErHEN, HiSTORY OF TH CRnm'riAL LAW OrENGLAND 237-38 (1883).

13 See 6 WIrGmoE, EVIDENcE, § 1850 (3d ed. 1940);Traynor, Ground Lost and Found in Criminal Discoveryin England, 39 N.Y.U.L. REv. 749 (1964); Adminis-tration of Justice (Misc. Provisons) Act, 1933, 23 and24 Geo 5, c. 36 § 1. See generally Burrows, CriminalLaw and Procedure 51 L.Q. REv. 36, 49-52 (1935);Elliff, Notes on the Abolition of the English Grand Jury,29J. Cium.L.C. &P.S.3 (1938).

14 Traynor, supra note 13, at 754.15 Id. at 761.16Id. at 763.

[Vol. 61

CRIMINAL DISCOVERY

grand jury has largely been preserved. Even wherethe preliminary hearing has been substitutdd for it,however, the common law rule regarding discoveryremained relatively undisturbed, at least well intothe twentieth century. In 1912 the MinnesotaSupreme Court was shocked by the ruling of a trialcourt which directed the prosecution to give acopy of the defendant's testimony before a statefire marshall to the defendant's attorney. Theappellate court said "if the practice be onceadopted that an indicted person is entitled to befurnished with some evidence in the possession ofthe county attorney, where is the line to bedrawn?"17 The court's attitude toward this threatto the adversary process was very much like thatof the King's Bench in the case of King v. Hollandn s

more than a century earlier.In 1927, some change became apparent when

Justice Cardozo of the New York Court of Appealsreviewed the actions of a trial court which orderedthe prosecution to deliver to the defense copies ofstatements of an alleged accomplice and results ofcertain examinations of the victim.19 justiceCardozo held the trial court in error. He tracedthe history of civil discovery from equit3y tostatutory codification. Because discovery is inderogation of the common law, he said, it may beimposed only by statute. justice Cardozo noted,however, that some courts were beginning to allowlimited discovery. "The beginnings or at least theglimmerings of such a doctrine are to be found, aswe have seen, in courts other than our own." 2°

Wigmore, an early advocate *of more liberaldiscovery practices, criticized the narrow viewtaken by justice Cardozo.

But what at least ought to be clear is that thejudiciary power, as exercised by the SupremeCourt, is ample to grant such inspection inproper cases without waiting for a remedialstatute. The question is one of policy, not ofpower.

And so it is strange to find a SupremeCourt in a leading and scholarly opinionaccepting impotently the view that thejudiciary must wait on the Legislature fordoing justice in such cases....217 State ex rel. Robertson v. Steele, 117 Minn. 384,

386, 135 N.W. 1128, 1129 (1912).184 Dum. & East 691, 100 Eng. Rep. 1248 (K.B.

1792).1People ex rel. Lemon v. Supreme Court, 245 N.Y.

24, 156 N.E. 84,52 A. L. R. 200 (1927)20 Id. at 32, 156 N.E. at 86.21 Wigmore, supra note 13 at 395.

But, most courts continued to oppose theintroduction of discovery into criminal procedure.More specific objections to discovery replacedemotional rejection based on the adversarytraditions. Many judges, including Learned Hand,felt that any disadvantage which the criminaldefendant may suffer was more than compensatedby other procedural safeguards which he enjoyed.22

The supporters of liberalized discovery haveargued that in practice any -imagined balancebetween the parties has turned to the advantageof the state. 2 They-point out that law enforcementagencies are at a distinct advantage in obtainingevidence. First, the law enforcement agency isoften at the scene of the crime shortly after itscommission. While at the scene, the police havebetter access to witnesses with fresher recollections.They are authorized to confiscate removableevidence. In addition, the financial and investiga-tory resources of law enforcement agencies permitan extensive analysis of all relevant evidence.

The defendant has the option of hiring a privateunvestigator. However, the investigator willprobably get to the scene long after the occurrenceof the crime and after the police have made theirinvestigation and removed' all relevant physicalevidence. The defendant's investigator may havedifficulty viewing the scene if it is on privateproperty. Witnesses may be less accessible; theirrecollections will probably be less precise. Indeedthey may choose not to cooperate at all with thedefendant's investigator." However, it may all beirrelevant if, as is often the case, the defendant isunable to afford an investigator or is incarceratedpending trial.

'The defendant is helpless to cope with theuncooperative witness while the prosecutor hasnumerous means to compel testimony. First, thereis the possibility of coroner's inquest or a pre-liminary hearing 25 And if the prosecution prefers

'2See n. 1 supra, and accompanying text. See also,United States v. Dilliard, 101 F.2d 829, 837 (2d Cir.1938).

See more extended discussions of these argumentsin Loisell, Criminal Discovery: Dilemma Real orApparent?, 49 CAm. L. Rv. 56, 86-90 (1961); Gold-stein, The State and the Accused: Balance of Advantagein Criminal Procedure, 69 YAxE L. J. 1149, 1180-99(1960).

2"Louisell, supra note 23, at 87; INAu AND REm,ClaMINAL INTERROGATIONS AND CoWEssIONs 122(2d ed. 1967).

25LouiseHl, supra note 23, at 87. Professor Pye hasmentioned that some prosecutors also resort to an"informal subpoena" in order to persuade witnessesto submit to questioning. Pye, The Defendant's Casefor More Liberal Discovery, 33 F.R.D. 82, 84 (1963).

JERRY E. NORTON

not to have the defense present, some jurisdictionsallow the prosecution to take testimony whilethe defendant and his attorney are excluded.' 6 Theuncooperative witness can be subpoenaed to appearbefore the grand jury and required to testify, againwithout the presence of the defense. The defensecannot, usually, discover the grand jury minutes.n

Many states require that the defendant givenotice of intended alibi" or insanity" defenses."The prosecution's burden, in bringing a charge, incontrast, has been substantially lessened.8 Mererecitation of the statute may be a sufficient pleadingof the charge.3 Amendments to the indictment orinformation are liberally allowed; duplicity andvariances are no longer serious defects. 3 Liberalpleading rules deprive the defendant of effectivenotice of the circumstances of the offense. It is alsoargued that the alleged balance in criminalproceedings is not maintained in practice by therequirements of proof beyond a reasonable doubtand the presumption of innocence since the juryprobably does not apply these concepts effec-tively.u

Proponents of expanded discovery also refutethe balance of advantage or "handicap" theoriesby emphasizing their irrelevance. The importantfactor is whether expanded discovery turns thebalance more toward the truth.3' The criminaltrial should not be characterized as a mere game

26 See, e.g. ILL. REv. STAT. ch. 38, § 203-13 (1965);K". STAT. ANN. § 62-301 (1963), Handler, TheConstitutionality of Investigation by the Federal TradeCommission, 28 CotLum. L. REv. 708, 905, 925-928(1928).

27Pittsburgh Plate Glass Co. v. United States, 360U.S. 395 (1959); and see United States v. Proctor &Gamble Co. 356 U.S. 677 (1958).

2" See, e.g. N.Y. CoDE CGlm. PRoc. § 295-1 (1935).29 See, e.g., ALA. CoDE tit. 15, § 423 (1940). For a

list of the statutes, see State v. Whitlow, 45 N.J. 3,11-14, 210 A. 2d 763, 767, n. 1 (1965); for a discussionof the constitutionality of such a requirement, see 5Ams. Camn. L. Q. 46 (1966).

30 See generally, Fletcher, Pre-trial Discovery inState Criminal Cases, 12 STAN. L. R1v. 293, 315-16(1963).

"1 Goldstein, The State and the Accused: Balance ofAdvantage in Criminal Procedure, 69 YALE L. J. 1149,1175-1178 (1960).

2 See e.g. KAIs. STAT. ANN. § 62-1009, n. 2, (1962)."See e.g. ILL. REv. STAT. ch. 38, § 111-5 (1967).3 See Goldstein, supra note 31, at 1186."5 Louisell, supra note 23, at 97. But, of course, the

function of the defense attorney is not necessarily tosearch for truth, but rather it may simply be to requirethe prosecution to prove the charge beyond a reasonabledoubt within the law. See Flannery, Prosecutors;Position: 33 F.R.D. 74 (1963); Starrs, ProfessionalResponsibility: Three Basic Propositions, 5 As,. Camt.L. Q. 17 (1966).

in which the parties are controlled by rulesconstructed solely to create a balance between thetwo sides. Rather, the proceeding should bedirected toward uncovering truth, and the meritsof any proposed change in discovery rules shouldbe judged according to the potential of the changetoward promoting this objective.

While many courts and prosecutors agree thatpretrial discovery is justifiable if it promotes anobjective finding of the truth, those opposingliberalized discovery fear that it would often defeat,not aid, the determination of truth. This fear wasclearly stated by the New Jersey Supreme Court inState v. Tune. 6

In criminal proceedings long experience hastaught the courts that often discovery willlead not to honest fact-finding, but on thecontrary to perjury and the suppression ofevidence. Thus the criminal who is aware ofthe whole case against him will often procureperjured testimony in order to set up a falsedefense .... Another result of full discoverywould be that the criminal defendant who isinformed of the names of all of the State'switnesses may take steps to bribe or frightenthem into giving perjured testimony or intoabsenting themselves so that they are un-available to testify. Moreover, many witnesses,if they know that the defendant will haveknowledge of their names prior to trial, will bereluctant to come forward with informationduring the investigation of the crime.... Allthese dangers are more inherent in criminalproceedings.... To permit unqualified dis-closure of all statements and information inthe hands of the State would go far beyondwhat is required in civil cases; it would defeatthe very ends of justice. 7

Supporters of extended discovery have acknowl-edged the problem of possible intimidation orbribery of witnesses which can affect a witness'swillingness to testify. This risk may be greatestin cases involving organized crime, but theseinstances should not be the basis for refusingdiscovery in the great majority of criminalproceedings." This position has led to Louisell'sproposal that discovery in "typical" criminal

36 13 N.J. 203, 98 A.2d 881, (1953). But see State v.Johnson, 28 N.J. 133, 145 A.2d 313, (1958); State v.Cicenia, 6 N.J. 296, 78 A.2d 568 (1951).

3713 N.J. at 210-11, 98 A.2d 884.'7Louisell, supra note 23, at 98-101.

[Vol 61

CRIfINAL DISCOVERY

cases should be as broad as in civil cases.3 Inthose circumstances where the prosecutiori clearlydemonstrates to the court that because of the"nature of the accused's associations and repre-sentatives" there would be a possibility of coercingwitnesses or procuring perjured testimony, dis-covery should be withheld or restricted. 40 Suchflexibility would reduce the dangers of abuse inexceptional cases. As Justice Brennan pointed outin his dissent to State v. Tune 4 the extension ofcivil discovery did not result in the abuses raisedby the opponents of that innovation.4 Neither hasit caused major problems in criminal discovery inEngland or Canada.4

The possibility that a dishonest accused willmisuse such an opportunity is not reason for.commiting the injustice of refusing the honestaccused a fair means of clearing himself. Thatargument is outworn; it was the basis (andwith equal logic) for the one-time refusal of thecriminal law... to allow the accused toproduce any witnesses at all 4

Another fear is that extensive discovery pro-cedures may encourage sloth and discouragedocumentation.45 Experience with the new civilrules should alleviate this concern. Referringparticularly to the fear of sloth, one writer ob-served:

How often in civil litigation will a lawyerdepend on an adversary's response to aninterrogatory, rather than go himself directlyto a source reasonably available to him?Certainly those who would abolish civildiscovery on the "diligence" argument areeither few in number or feeble in protest.46

In order to minimize disclosures under a liberaldiscovery rule, attorneys may refrain from prepar-

29 Id. at 100.'0 Id. at 100-1. See Moore, Criminal Discovery, 19

HA sT. L.J. 865, 890 (1968) for an alternative to theLouisell theory on the ground that it may constitutea denial of equal protection. As an alternative theauthor then proposes that the judge assess the dangersof discovery in light of the particular attorney request-ing discovery, the association and character of theaccused and the crime with which he is charged andthe danger of hampering related prosecution. Id. at891-2.

' 13 N.J. 203, 98 A.2d 881 (1953).42Id. at 228, 98 A.2d at 894 (Brennan, J. dissenting).

See Traynor, supra note 13 at 752, n. 19 and text.U Dean Wigmore as quoted by Mr. Justice Brennan

in 33 F.R.D. 47, 63 (1963).45 Louisell, supra note 23 at 94.16 Id. at 95.

ing documents on the case. Yet, this problem isavoidable if the rules would protect the attorney's"work product." 0

The often inadequately considered belief thatdiscovery cannot be reciprocal frequently per-suades courts to refuse to extend criminal dis-covery. 4 Understandably courts are reluctant toestablish rules which will operate to the advantageof only one of the parties. They will deny discoveryby assigning proprietary rights in certain informa-tion to the parties." In State v. Rkoads," thedefendant received.permission to examine, amongother things, the transcript of a witness's interview.In sustaining state exceptions to the trial court'sruling, the court said,

The state cannot compel the prisoner at thebar to submit his private papers or memorandato the state for use or even examination, forhe-cannot be required to testify in the case, norto furnish evidence against himself. Then whyshould the accused be allowed to rummagethrough the private papers of the prosecutingattorney? Neither the sublime teachings of theGolden Rule to which we have been referred,nor the supposed sense of. fair play, can be soperverted as to sanction the demands allowedin this case."

However this decision was recently overruled inState v. White52 where the Ohio Supreme Courtordered the trial court to allow the defendant toinspect the recorded pretrial statements of a keywitness as well as to conduct an in camera inspec-tion of the pretrial statement of other witnesses.0The standard for determining t e defendant'sright to inspect the statement was whether thecourt, in the in camera proceeding, finds variationbetween the statements and the testimonysufficient to deprive the defendant of due processof law and prohibit him from receiving a fairtrial." The proprietary implications of the Rhoadsdecision were quite properly discarded. As Pro-

4 See Hickman v. Taylor, 329 U.S. 495 (1947).4Louisell, supra note 23 at 91-92.49 Id. at 96.10 81 Ohio St. 397, 91 N.E. 186 (1910).51 Id. at 425, 91 N.E. at 192.62 15 Ohio St. 2d 146, 239 N.E.2d 65 (1968).53Id. at 158, 239 N.E.2d at 74. But see, Coleman v.

Maxwell, 399 F.2d 662, 664-5 (6th Cir. 1968), cert.denied 393 U.S. 1058 (1969).

5 State v. White, 15 Ohio St. 2d 146, 159, 239 N.E.2d65 (1968). Inconsistencies between testimony andpre-trial statements now require in camera inspectionalthough private papers and work product are-notsubject to defense scrutiny.

19701

JERRY E. NORTON

fessor Louiseil points out, unlike the context ofthe civil proceeding where one may have a propertyinterest in some evidence, 55 the evidence of theprosecution belongs to the public. 56 The staterepresents the interests of all the people includingthe defendant's. The state's interest is to see thatjustice is done and its evidence should be accessibleto ally. The court also disregarded the notion thatreciprocity plays any role in this circumstance. Thedefendant's right against self-incrimination 5s can-not be properly used by the prosecution in thiscase to justify the refusal to produce the state-ments.59

It is dear also that the Supreme Court, whichstated in Brady v. Maryland0 that "the suppressionby the prosecution of evidence favorable to anaccused upon request violates due process wherethe evidence is material either to guilt or topunishment ... ," 61 would not regard a state'sproprietary interest, or the defendant's privilegenot to testify against himself, a justification forsuppressing evidence favorable to the accused.

There are some indications, especially in thestate courts, that the door to criminal discoveryis being nudged open. In California, People v.Riser62 provided the defendant with the right toobtain any pre-trial statements of prosecutionwitnesses at trial. The court reasoned that

the State has no interest in denying theaccused access to all evidence that can throwlight on issues in the case.... To denyflatly any right of production on the groundsthat an imbalance would be created betweenthe advantages of prosecution and defensewould be to lose sight of the true purposeof a criminal trial, the ascertainment of fact.13Later decisons established for the defendant the

right to inspect his statements to the police,6 the

55 Louisell, supra note 23 at 96-7.5 1 Id. at 97.17 See Moore, Criminal Disco;very, 19 Hast. L.J.

865, 880 (1968).11The Fifth Amendment to the Constitution pro-

vides, in part, that no person "shall be compelled in anycriminal case to be a witness against himself...."19 See Moore, supra note 57, at 899-909.60 373 U.S. 83 (1963).61 Id. at 87.2 47 Cal. 2d 566, 305 P.2d 1 (1956).13 Id. at 586, 305 P.2d at 13. Accord, People v.

Estrada, 54 Cal.2d 713, 716, 7 Cal. Rptr. 897, 899,355 P.2d 641, 643 (1960); People v. Cartier, 51 Cal.2d590, 594, 335 P.2d 114, 117 (1959).

"Cash v. Superior Court, 53 Cal.2d 72, 346 P.2d407 (1959); People v. Cartier, supra note 63; Funk v.Superior Court, 52 Cal. 2d 423, 340 P.2d 593 (1959);

right to inspect statements of third parties in thehands of the prosecution,6 the right to inspectphotographs, 66 scientific and investigatory re-ports,17 and the names and addresses of witnesses."Other states appear to be following hesitantly thetrend of the California decisions. 9 In additionothers have enacted legislation enabling thedefendant to more adequately discover thecircumstances and facts of the case against him. °

The movement toward broader disclosurerequirements effected by the courts in criminalcases has included, to some extent, the prosecution'sright to discovery as well. As noted above thedefense often has a duty to inform the prosecutionof an intended alibi or insanity defense7' to beraised at trial. In Schmerber v. California72 theSupreme Court of the United States held thatphysical evidence, specifically, a blood sample

Vance v. Superior Court, 51 Cal.2d 92, 330 P.2d 139(Dist. Ct. App. 1959).

65 People v. Gamar, 57 Cal.2d 135, 367 P.2d 680,18 Cal. Rptr. 40 (1961); People v. Estrada, supra note63; Cash v. Superior Court, supra note 64; but seePeople v. Cooper, 53 Cal.2d 755, 349 P.2d 964, 3 Cal.Rptr. 148 (1960) where the court stated that the de-fendant must show better cause for discovery "thana mere desire for the benefit of all information whichhas been obtained by the People in their investigationof the crime." Id. at 770, 349 P.2d at 973, 3 Cal. Rptr.at 157.66 Norton v. Superior Court, 173 Cal. App. 2d 133,343 P.2d 139 (Dist. Ct. App. 1959).

67 Brenard v. Superior Court, 172 Cal. App. 2d 314,341 P.2d 743 (Dist. Ct. App. 1959); Walker v. SuperiorCourt, 155 Cal. App. 2d 134, 317 P.2d 130 (1957);Schindler v. Superior Court, 161 Cal. App. 2d 513,327 P.2d 68 (1958).

6 People v. Lopez, 60 Cal.2d 223, 32 Cal. Rptr.424, 384 P.2d 16 (1963); Norton v. Superior Court,173 Cal. App.2d 133,343 P.2d 139 (Dist. Ct. App. 1959).

69 See, e.g., State ex rel. Mahoney v. Superior Court,78 Ariz. 74, 275 P.2d 887 (1954) (inspection of tangiblephysical evidence allowed); State ex rel. Sadler v.Lackey, 379 P.2d 610 (Okla. Crim. 1967) (inspectionof FBI report on physical evidence allowed); State v.Johnson, 28 N.J. 133, 145 A.2d 313 (1958) (inspectionof defendant's own statement previously given topolice allowed); People v. Rosario, 9 N.Y.2d 286, 173N.E.2d 881 (1961) (inspection by defendant of pre-trial statements of prosecution's witnesses allowed);State v. White, 15 Ohio St. 2d 146, 239 N.E.2d 65(1968) (inspection of pre-trial statements of prosecu-tion's witnesses where court in in camera proceedingdiscovered inconsistencies allowed); see also Jones v.State, 5 Md. App. 180, 245 A.2d 897 (1968); Vermontv. Mahoney, 122 Vt. 456, 176 A.2d 747 (1961). Butsee statutes and cases collected in Moore, CriminalDiscovery, 19 HAST. L.J. 865, 867-8 at n. 18-33 (1968),which have resisted the trend.

10See e.g., DEL SuP R. CT. (Cams.) Rule 16; FLA.STATS. § 925.05 (Supp. 1969); IL.. R V. STATs. Ch. 38§ 114-10; MD. P. R. 728; TENN. ConE ANN. § 40-2441 (Supp'. 1969); 13 VT. STAT. Am. 6721.

1 See p. 14 supra.384 U.S. 757 (1966).

[Vol. 61

CRIMINAL DISCOVERY

does not fall within the protective confines of aperson's right against self incrimination"'so long,apparently, as the method in which it is obtaineddoes not "shock the conscience" of the court.74

In Jms v. Superior Court," the Supreme Courtof California again demonstrated its desire tobroaden criminal discovery by upholding a lowercourt order requiring that the defendant disclose tothe prosecution the names, addresses and reportsof all medical experts who will offer testimony tosubstantiate the defense of impotence in a rapeprosecution.7 6 A broader discussion of the conceptof prosecutorial discovery is presented in thefollowing section of this article.", In summary, there has been some expansion of

criminal discovery in recent years, mostly uponthe initiative of the courts. However, moststates still significantly restrict it.7 Moreover, thereasons offered by opponents of liberal discoveryrules do not appear to be theoretically or practically-persuasive.7 9

PROSECUTORm DIscovERY

Since debate began on the issue 6f discovery incriminal cases, one of the strongest sources of

opposition, if not always stated, has been theassumption that it could not be reciprocal; that theFifth and Fourteenth Amendments would preventthe establishment of any rule requiring disclosureby the defendant.80 Most prosecutors are opposedto a plan by which they would be required tb

7 Id. at 7607 4Rochin v. California, 342 U.S. 165 (1952). There

the Court excluded evidence obtained by forcing thedefendant to vomit the contents of his stomach whichyielded morphine. Cf. Davis v. Mississippi, 394 U.S.721 (1969).75 58 Cal. 2d 56, 372 P.2d 919; 96 A.L.R.2d 1213

(1962).76 Id. at 62, 372 P.2d at 922.77 See text at p. 14 supra. See also Moore, supra

57 at 809-909; Louisell, Criminal Discovery and Self-Incrimination: Roger Traynor Confronts tle Dilemma,53 Calif. L. Rev. 89(1965).78 Moore, supra note 40, at 871.79 See Langrock, Vermont's Experiment in Criminal

Discovery, 53 A.B.A.J. 732 (1967). There the authorstates that the Vermont statute which allows specifi-cally the taking of depositions of witnesses beforetrial has been highly successful. He points to his surveywhich indicates that the right to take depositions hasdecreased the likelihood that the case will go to trial.In addition his survey indicated little difficulty withthe traditional concerns for open discovery: intimida-tion or 6oerdon of witnesses and greater opportunityfor perjury. Id. at 733-4.S0 See, e.g., State v. Rhoades, 81 Ohio. St. 397, 424-25,

91 N.E.186, 192 (1910); and United States v. Sermon,218 F. Supp. 871,872 (W.D. Mo. 1963).

divulge their evidence while receiving no pro-cedural or evidentiary benefits in return.

Professor Louisell has suggested, however, thatdisclosure by the defense is constitutionallypossible and may be enforced in either of two ways.First, defense disclosure might be obtained by a

change in the order of evidence to require thedefendant to disclose in advance the witnessesand other evidence which he would produce at thetrial. The alternative procedtre conditions dis-closure by the prosecution upon voluntary dis-

closures by the defense&The argument which justifies disclosure by the

defendant upon the power to change the order ofproof takes its reasoning from statutes requiringthe giving of notice of the defenses of alibi and

insanity. Such statutes, their proponents haveargued, do not violate the right against self-incrimination, but rather

... they set up a wholly reasonable rule ofpleading which in no manner compels a defend-ant to give any evidence other than that whichhe will voluntarily and without compulsiongive at trial. Such statutes do not violate theright of a defendant to be forever silent. Ratherthey say to the accused: If you don't intend toremain silent, if you expect to offer an alibidefense, then advance notice and whereaboutsmust be forthcoming; but if you personallyand your potential witnesses elect to remainsilent throughout the trial, we have no desireto break that silence by any requirement ofthis statute 2

Following this suggestion by Professor Louisell,the Supreme Court of California in 1962 innovatedgeneral reciprocal discovery. In Jones v. Superior

Court, the defendant, who was charged with rape,moved for a continuance of his trial in order thathe might gather medical evidence to show that hewas impotent. The trial court allowed the motionfor continuance, but it also granted a prosecutionmotion for disclosure of the names of all physicianswho would testify, the names of all physicians who

81Louisell, Criminal Discovery: Dilemma Real orApparent?, 49 Calif. L. Rev. 56,87-90 (1961).

82 Dean, Advance Specifr-ations of Defense in CriminalCases, 20 A.B.A.J. 435, 440 (1934). Fourteen stateshave adopted statutes requiring the defendant to givenotice of his alibi defense. Most of these provide thatthe sanction for failure to give such notice shall beexclusion of the proffered alibi evidence. See 76 Harv.L. Rev. 838 (1963).

13 Jones v. Superior Court, 58 Cal.2d 56, 372 P.2d919 (1962).

JERRY E. NORTON

had treated the defendant, and all documents andreports of such physicians. The Supreme Court ofCalifornia upheld the order as to the names of thephysicians who would testify and all documentsor reports which the defendant would offer intoevidence. Speaking for the court, Chief JusticeTraynor stated: "It simply requires petitioner todisclose information that he will shortly revealanyway. Such information is discoverable." 84

The "advance notice" theory, which justifiesalibi statutes and other pre-trial disclosures by thedefense as a mere change in pleading order, hasbeen upheld in all states in which alibi statuteshave been questioned.85 The United States Su-preme Court, however, has never ruled on thesestatutes. The Advisory Committee, in its proposedamendments to the Federal Rules of CriminalProcedure, suggested rule 12.1, which would haverequired the defendant to give advance notice ofan insanity defense 88 This requirement is commonin many states, 7 and is viewed, like the alibistatutes, as a change in the order of presentingevidence. The Supreme Court however declined toadopt the rule, without stating any reason.

The analysis utilized in justifying the "advancenotice" disclosure is not without constitutionaldifficulties. A basic rule of criminal law, nowencased in the Constitution, is that the burdenis on the prosecution to prove the defendant guiltyand that burden is never properly shifted to thedefendant to show his innocence.P With such anunderlying policy, the question of whether and towhat extent the defendant must anticipate theprosecutor's evidence and disclose his defenseraises practical as well as consitutional problems.In the situation where a person is charged with acrime on the basis of dubious eviddnce, it isdifficult to know whether he should show as analibi that he was committing another crimeelsewhere, or that he was engaged in an activitywhich is in violation of his parole, while notitself illegal. He may hope that the evidence whichthe prosecution presents will be insufficient toprove a prima facie case or be so weak that a jurywould not convict him in spite of his silence. Apretrial discovery rule or statute based on the"advance notice" theory would in fact force him

8 Id. at 62, 372 P.2d at 922.81 See 76 Harv. L. Rev., supra note 3, at n. 10.86 34 F.R.D. 411, 418 (1964).1 Fletcher, Pre-trial Discovery in State Criminal

Cases, 12 Stan. L. Rev. 293 (1960).8 Malloy v. Hogan, 378 U.S. 1 (1964) incorporating

the Fifth Amendment into the Fourteenth Amendment.

to either incriminate himself or expose himself toother sanction, possibly needlessly. The un-certainty regarding the "advance notice" theoryis not confined to the example given. The defendantmay, for other reasons beside surprise, wish towithhold evidence which may not be needed for hisdefense.

It is no practical solution to say that if thedefendant were entitled to disclosure by theprosecution that he would know what he mustpresent to establish reasonable doubt. This woulddepend upon immeasurable elements of judgment,such as the impact of testimony and other evidenceat the trial. It would also depend upon how success-ful cross-examination may be in casting doubt onthe testimony of the witnesses for the prosecution-and no attorney can clearly anticipate this.

Further, defense witnesses are often impeach-ment witnesses. Whether they are called totestify largely depends upon the testimony of thewitnesses for the prosecution. Questions arecertain to arise as to whether the defense shouldhave anticipated the testimony by the prosecutionwitnesses.8 9

The central constitutional question implicit inthe "advance notice" theory, then, is whether theconstitutional right to remain silent also gives thedefendant the right to choose when he may waivethis right, if at all. As noted above, th6 SupremeCourt has never ruled on this issue; however, bydeclining to adopt proposed amendment 12.1, theCourt has perhaps suggested that it does.

The second suggested procedure for discovery bythe prosecution is that of voluntary exchange ofinformation. If a defendant were to requestdisclosure of an expert's report, the court mightgrant the request upon the condition that thedefendant himself disclose reports of his expert(s).The choice then becomes a voluntary one for thedefendant, who must weigh the anticipated valueof the information he seeks against the surprisevalue or harm of that which he would have to

89Many of these problems, where they occur onthe prasecution side, are recognized in states where theprosecution is required to give notice of the witnessesit intends to call. Realizing that the need for witnessesat the trial is not totally predictable, courts have heldthat the listing of such witnesses does not obligatethe prosecution to call all of them, even though thedefense has anticipated their being called. See, e.g.,People v. Kukulski, 358 Ill. 601, 193 N.E. 504 (1934).Since impeachment testimony is difficult to anticipate,most states also exempt impeachment witnesses fromthose whom the prosecution must list. See, e.g., Ill.Rev. Stat. ch. 38 § 114-9(c) (1969).

[Vol 61

CRIMINAL DISCOVERY

disclose. The voluntary exchange theory appearsto be the principal philosophy behind Rule 16(c) ofthe Federal Rules of Criminal Procedure.

The "voluntary exchange" theory involvesconstitutional complexities of its own. An im-portant initial observation to be made concerningthis theory is that the defendant can not berequired to exchange information for disclosures towhich he is constitutionally entitled under Brady v.Maryland."

Beyond this, however, the defendant will beseeking a governmental benefit: information in thepossession of the government. It is by no meanscertain that, in order to get this benefit, thedefendant may be required to give up any portionof the privilege conferred upon him by the FifthAmendment.

In Sherbert v. Verner," the Supreme Courtfaced the issue of whether the action of SouthCarolina officials in denying unemploymentcompensation to a member of the Seventh DayAdventist Church was constitutional. The appel-[ant was discharged by her employer because herreligion prevented her from working on Saturdays.She was unable to take other available work for the3ame reason, but because other work was available,3tate officials denied her claim for unemployment-ompensation. The Supreme Court ruled that theiriction was in violation of the First Amendment,aven though unemployment compensation is only

privilege.

Nor 'may the South Carolina court'sconstruction of the statute be saved fromconstitutional infirmity on the ground thatunemployment compensation benefits are notappellant's "right" but merely a "privilege."It is too late in the day to doubt that theliberties of religion and expression may beinfringed by the denial of or placing of condi-tions upon a benefit or privilege.9 2

90 Brady v. Maryland, 373 U.S. 83 (1963).91 Sherbert v. Verner, 374 U.S. 398 (1963).9id. at 404. In Speiser v. Randall, 357 U.S. 513

(1958), the Supreme Court said of a tax statute whichgave a beneficial exemption which indirectly infringedupon First Amendment privileges that it would "pro-duce a result which the State could not commanddirectly," and was therefore unconstitutional. Courtshave also held that loyalty oaths or certificates maynot be imposed as a requisite to the use of publicfacilities. Lawson v. Housing Authority of the Cityof Milwaukee, 270 Wisc. 269, 70 N.W.2d 605 (1955);Housing Authority of the City of Los Angeles v. Cor-dova, 130 Cal. app. 2d883, 279 P.2d.215 (Cal. App.1955), cert. denied 350 U.S. 969 (1956); and ChicagoHousing Authority v. Blackman, 4 Ili.2d 319, 122

A similar rule would seemingly apply whereFifth Amendment rights are involved. In Griffi; v.California93 the Supreme Court held that commentby court and counsel upon the exercise of -thisprivilege is unconstitutional. "It is a penaltyimposed by courts for exercising a constitutionalprivilege. It cuts down on the privilege by makingits assertion costly." 14

The Supreme Court has taken a similarlyhostile view toward penalties -exacted upon theexercise of Fifth Amendment rights. In Garrity v.New Jersey,9' the Court questioned the voluntari-ness of a statement by a police officer made underthe threat of a New Jersey statute which wouldhave caused him to lose his job if he were to refuseto testify. While the Court was thus only con-cerned with whether or not the statement wasvoluntary, the opinion written by Mr. JusticeDouglas made the majority's view of the statutedear: "There are rights of constitutional staturewhose exercise a State may not condition by theexactions of a price."' 9 6

These decisions cast doubt on the theory thatthe court may negotiate an agreement for theabandonment of portions of the defendant's rightto remain silent or his right against self-incrimina-tion in return for the privilege of knowing whatinformation the state possesses. The defendant, byexercising his constitutional right, would then failto meet the conditions imposed upon the privilege.To again use the words of Griffin v. California,1 "Itcuts down on the privilege [against self-incrimina-tion] by making its assertion costly."

DiscovERn AND THE CoNs rurIoN

In recent years debates regarding pre-trialdiscovery have included discussions of the extent

N.E.2d 522 (1954) (public financed housing). Danskinv. San Diego Unified School District, 28 Cal.2d 536, 171P.2d 885 (1946) (school auditorium).

3 Griffin v. California, 380 U.S. 609- (1965)."Id. at 614. See also, Steinberg v. United States,

163 F. Supp. 590, 592 (Ct. of Claims 1958), in whichthe Court of Claims said,

Notwithstanding the plaintiff had no vested or con-tractual right to his annuity, we believe that Con-gress in prescribing a punishment for persons whoexercised a constitutional right has acted beyondthe scope of the Constitution.9" Garrity v. New Jersey, 385 U.S. 493 (1967)..G Id. at 500. This view was confirmed in Gardner

v. Broderick, 392 U.S. 273 (1968), in which the SupremeCourt ruled that a police officer could not be consti-tutionally discharged for exercise of his Fifth Amend-ment rights. See also, Spevack v. Klein, 385 U.S. 511(1967).

97380 U.S., at 614.

19701

JERRY E. NORTON

to which the defendant may be entitled to dis-closure under the due process clause of the Four-teenth Amendment. One writer has expressed thefollowing viewpoint:

Certainly the due process clause of the 14thAmendment and similar state constitutionalprovisions extends to the defendant the rightto a trial and implies the right to a fair trial.It is apparent that a defendant cannot have afair trial unless he is given the opportunity toascertain the facts. In a criminal case notonly must the defendant be given an oppor-tunity to present evidence, but he also has toknow the claims of the prosecution so that hewill be in a position to meet such claims. Ifthe evidence in the hands of the prosecution isnot made available to the accused, certainlyhe will not be given an opportunity toadequately and fairly defend himself.'

The Supreme Court has not accepted thisargument. In Leland v. Oregon99 the court ruledthat the trial court's refusal to order the prosecu-tion to permit the defendant's attorney to examinethe defendant's confession before trial was not adeprivation of due process. The Court did note,however, that it might have been the betterpractice to have allowed the examination.

In Cicenia v. Lagay in 1958100 the Court re-affirmed Leland, which, it said, had ruled "thatin the absence of a showing of prejudice to thedefendant it was not a violation of due processfor a State to deny counsel an opportunity beforetrial to inspect his client's confession." ' TheCourt then went on to say, "we cannot say thatthe discretionary refusal of the trial judge topermit inspection in this case offended the Four-teenth Amendment.' °

0 Since permitting the

9 Garber, The Growth of Criminal Discovery, 1 Am.CRIm. L.Q. 3, 12 (1962). See also State v. Dorsey, 207La. 928, 22 So. 2d 273 (1945); Goldstein, The State andthe Accused: Balance of Advantages in Criminal Pro-cedure, 69 YAIa L.J. 1149, 1173-99 (1960); Note,Developments in the Law-Discovery, 74 Hagv. L. Rxv.940, 1051-63 (1961); Brennan, The Criminal Prosecu-tion: Sporting Event or Quest for Truth?, 1963 WASU.U.L.Q. 279.

09 343 U.S. 790, 801-02 (1952). The prosecutor had,however, permitted defense counsel to examine theconfession during trial and five days before the defenserested.

100 357 U.S. 504 (1958).01 Id. at 511.

102 Id. The primary question in Cicenia, however,

was whether the refusal of the police to permit thedefendant to see his retained counsel, who in turn wasdemanding to see him, was a violation of due process.The change in the Court's view as indicated in Esco-

defendant or his attorney to examine the defend-ant's own confession probably is the least objec-tionable type of discovery,10' these cases appearto negate the argument that due process guaran-tees the defendant an opportunity to prepare hisdefense with knowledge of the claims of the prose-cution, at least in the absence of a showing ofactual prejudice.

But when the prosecution has concealed infor-mation which might be helpful to the defense, theCourt's reaction has been considerably different.This fact is revealed by a review of the Court'sdecisions in this area over the past forty years.

Mooney v. Holohan,'4 a habeas corpus pro-ceeding in 1935, involved a claim that the stateprosecutor had knowingly permitted a prosecutionwitness to perjure himself without any attempt bythe prosecutor to correct the testimony or revealsources of impeachment to the defense. TheSupreme Court ruled that the Fourteenth Amend-ment requires "fundamental conceptions ofjustice."

It is a requirement that cannot be deemed tobe satisfied by mere notice and hearing if aState has contrived a conviction through thepretense of a trial which in truth is but used asa means of depriving a defendant of libertythrough a deliberate deception of court andjury by the presentation of testimony knownto be perjured .... 105

The Mooney decision was concerned only withthe prosecution's use of false evidence. In the 1942case of Pyle v. Kansas,100 however, the Courtexpanded its language.

Petitioner's papers are inexpertly drawn, butthey do set forth allegations that his imprison-ment resulted from perjured testimony, know-ingly used by the state authorities to obtainhis conviction, and from the deliberate sup-pression by those same authorities of evidencefavorable to him. These allegations sufficientlycharge a deprivation of rights guaranteed bythe Federal Constitution, and, if proven,

bedo v. Illinois, 378 U.S. 478 (1964), may indicate achange in this question.

103 See, e.g., Dennis v. United States, 384 U.S. 855(1966); United States v. Nolte, 39 F.R.D. 359 (N.D.Cal. 1965); United States v. Williams, 37 F.R.D. 24(S.D.N.Y. 1965); United States v. Willis, 33 F.R.D.510 (S.D.N.Y. 1963); State v. Johnson, 28 N.J. 133,145 A.2d.313 (1958).

1-4 294 U.S. 103 (1935).106 Id. at 112.106 317 U.S. 213 (1942).

[Vol. 61

CRIMINAL DISCOVERY

would entitle petitioner to release from hispresent custody.'7

Thus the Court brought under its Mooney ruleprohibiting the concealment of perjured testi-mony, the deliberate suppression by the prosecu-tion of evidence favorable to the defense."' Themeaning of the Court's concept of "suppression"

was not obvious from either the Court's opinionor from its recitation of the facts in Pyle.

In the lower courts, the prosecutor's duty todisclose evidence favorable to the defendant cameto be defined as a duty of disclosure if the evidenceis of a type or from a source which in all probabilitywould make it very persuasive to a fair mindedjury even though the prosecutor does not believethe testimony 9 Under this definition the prose-cutor was required to disclose the names of eye-witnesses who did not identify the defendant asbeing at the scene of the crime, even though othereyewitnesses did identify him.W0 Courts of Appealalso have ruled that the prosecution is obligated todisclose favorable, even though questionable anddisputed, evidence involving such matters of judg-ment as whether the defendant was iitoxicated atthe time of an alleged murder,"1 or whether thedefendant was insane when his own expert hasjudged him not to be."'

Fifteen years after Pyle, in Alcorta v. Texas,"the testimony involved was not perjured but waspossibly incomplete. The defendant, charged withmurdering his wife, was attempting to show thaithe case fell within the Texas murder-without-malice rule. He testified that he suspected his wifeof being unfaithful to him and that when he foundher kissing her paramour, he killed her. Before the

10 Id. at 215-16."8See also Wilde v. Wyoming, 362 U.S. 607 (1960),

in which the Supreme Court remanded the case forhearing in the state courts when the defendant allegedthat the prosecution had "willfully suppressed the testi-mony of two eye witnesses to the alleged crime whichwould have exonerated the petitioner." The Court,in a per curiam decision, held that it would find nono justification for the state court's refusal to hearthe claims.

09 United States ex rel. Thompson v. Dye, 221F.2d 763, 769 (3d Cir.) (Concurring opinion of JudgeHastie) cert. denied, 350 U.S. 875 (1955).

110 United States ex rel. Meers v. Wilkins, 326 F.2d135 (2d Cir. 1964); Application of Kapatos, 208 F.Supp. 883 (S.D.N.Y. 1962). "

1221 F.2d 763 (3rd Cir. 1955).12Ashley v. Texas, 319 F.2d 80 (5th Cir.), cert.

denied, 375 U.S. 931 (1963). The Court here ruled thatthe prosecution should have disclosed to the defensethat two of the four prosecution experts believed thedefendant to be legally insane.

" 355 U.S. 28 (1957):

trial, the paramour admitted to the prosecutorthat he had had intercourse with the victim severaltimes. The prosecutor told him not to volunteerany information about the intercourse, but that,if specifically asked about it, he should answertruthfully. At the trial the paramour testified thaton the night of the killing he had not kissed thevictim, that he had only brought her home fromwork, that they had never kissed or talked of love,and that they had never had'a "date." Whilenothing indicated that any testimony regardingthe night of the killing was false, the SupremeCourt reversed the conviction.

If Castilleja's relationship with petitioner'swife had been truthfully portrayed to the jury,it would have, apart from impeaching hiscredibility, tended to corroborate petitioner'scontention that he had found his wife embrac-ing Castilleja."

In Alcorta, the Supreme Court seemed to extendthe Mooney rule. It seemed to say that besides notbeing allowed to present perjured testimony, theprosecution may not construct an erroneous andmisleading impression through narrowly truthfultestimony."1 Second, the decision indicates thatthe prosecution is constitutionally prohibited fromsuppressing evidence which only inferentiallysupports the defendant's cause as well as evidencewhich would directly support his defense.

Beyond these two additions to the Moomey rule,the Supreme Court in Alcorta intimated that theuse of untrue or misleading evidence would begrounds for reversal of a conviction though theevidence only goes to credibility. Two years later,in'Napue v. Illinois,"16 the court affirmed this rule.In Napue a co-defendant, testifying on behalf ofthe State, said that he was not promised anyreward by the State in return for his testimony.

14 Id. at 31-32.

"1 See also Barbee v. Warden, 331 F.2d 842 (4thCir. 1964), in which the court ruled that where prosecu-tion witnesses identified the defendant's gun as lookinglike the one they saw, it was obligated to discloselaboratory evidence tending to show that it was notthe gun used, even though the prosecution did notoffer the gun itself into evidence. The court said thatthe presence of the gun caused an inference that itwas the one, even though not introduced into evidence.In United States ex rel. Almeida v. Baldi, 195 F.2d815 (3d Cir. 1952), cert. denied, 345 U.S. 904 (1953),the court ruled that the prosecution had denied adefendant due process where it allowed an inferencethat the defendant killed a victim of a robbery to standwhen the evidence in its possession tended to showthat a police bullet actually caused the death.

U 360 U.S. 264 (1959).

JERRY E. NORTON

In fact, the state's attorney had told the witness,who was then serving a prison term, that he would"do what he could" for the prisoner. The SupremeCourt ruled that the Mooney decision "does notcease to apply merely because the false testimonygoes only to the credibility of the witness."- 7

Napue v. Illinois expressed a logical extension ofthe rule in Mooney. Even where the prosecutor doesnot solicit false testimony or produce a witnesswho he knows will perjure himself, if he neverthe-less allows false testimony to go uncorrected, thedefendant's constitutional rights are violated"

Meanwhile, in federal prosecutions the SupremeCourt was showing a similar hostility toward theprosecutorial practice of not revealing facts tendingto show perjury or lack of credibility of govern-ment witnesses. In Mesarosh v. United States,' 9 theSolicitor General disclosed to the Court that hehad learned that the only witness who had in-criminated the defendant had perjured himself inother cases. The Court reversed the defendant'sconviction. "The dignity of the United StatesGovernment will not permit the conviction of anyperson on tainted testimony. This conviction istainted, and there can be no other just result thanto accord petitioners a new trial. 120

Since constitutional authority was not used bythe Court in Mesarosh, the decision probablyrested upon the Court's supervisory power."' Thisconclusion is supported by the Court's primaryreliance upon Communist Party v. Control Board,1"which involved a dear instance of perjury by agovernment witness. The Court reversed thatconviction, relying upon its supervisory powers.

Perhaps the most significant Supreme Courtpronouncement in the area of disclosure and dueprocess is Brady v. Maryland, decided in 1963.2'Brady and Boblit were charged with a first degreemurder which occurred in the course of a robbery.During the trial Brady's attorney requested thatthe prosecutor give him copies of statements madeby Boblit. The prosecutor gave the attorney copiesof all of Boblit's statements except one in whichBoblit admitted that he did the killing. There wasno indication whether the omission was intentional

1 Id. at 269. See also Powell v. Wiman, 287 F.2d275 (5th Cir. 1961).

"ISee also United States v. Marchese, 341 F.2d782 (9th Cir.), cert. denied, 382 U.S. 817 (1965).

119 352 U.S. 1 (1956).1

0 Id. at 9.M See McNabb v. United States, 318 U.S. 332 (1943)."'351 U.S. 115, 124 (1956).1n 373 U.S. 83 (1963).

or whether it was merely an oversight. In his finalargument, Brady's attorney admitted that Bradywas guilty of first degree murder, but he urged thejury to sentence the defendant to life in prison,rather than death. The Maryland Court of Appealsruled that the suppression of the statement was adenial of due process to the defendant and ordereda new trial limited to the question of punishment,but not the issue of guilt or innocence."M

Before the United States Supreme Court, thestate did not oppose the order of a new trial on theissue of punishment. The only issue was whetherthere should also have been a new trial on the issueof guilt or innocence. The Supreme Court, in anopinion written by Justice Douglas, affirmed theMaryland Court of Appeals, ruling that, while inMaryland the jury is the judge of law as well asfact, the court must judge the admissibility ofevidence. The admission to the killing by the co-defendant would not be admissible on the issue ofguilt under the felony-murder rule, although itwould be admissible on the issue of punishment,which in this case was also a question for the jury.2 5

Although it upheld the Maryland ruling, theSupreme Court took the opportunity to make abroad statement regarding the suppression ofevidence. After reviewing Mooney v. Holohan"1 6 andthe cases following it, the Court said

We now hold that the suppression by theprosecution of evidence favorable to an ac-cused upon request violates due process wherethe evidence is material either to guilt or topunishment, irrespective of the good faith orbad faith of the prosecution .... Society winsnot only when the guilty are convicted butwhen criminal trials are fair.... A prosecutionthat withholds evidence on demand of anaccused which, if made available would tend toexculpate him or reduce the penalty helpsshape a trial that bears heavily on a defendant.That casts the prosecutor in a role of an archi-tect of a proceeding that - does not comportwith standards of justice, even though, as in"2 Brady v. State, 226 Md. 422, 174 A.2d 167 (1961).121 In this regard, the Court was, of course, dis-

cussing only Maryland law. In other states the rulemight be different. See, e.g., United States ex rel.Almeida v. Baldi, 195 F.2d 815 (3rd Cir. 1952), cert.denied, 345 U.S. 904 (1953), which involved a similarproblem. In that case the Third Circuit- reviewed thequestion in light of Pennsylvania law and ruled that,under such circumstances, the defendant should receivea new trial, since the evidence would have been admis-sible aside from the issue of punishment.

126 294 U.S. 103.

[Vol. 61

CRIMINAL DISCOVERY

the present case, his action is not "the resultof guile"... 27

The implications involving discovery containedin this decision were noted by Justice White in aconcurring opinion:

I would employ more confining language andwould not cast in constitutional form a broadrule of criminal discovery. Instead, I wouldleave this task, at least for now, to the rule-making or legislative process after full con-sideration by legislators, bench, and bar.128

In Brady the Court answered several unresolvedquestions. It ruled that an unintentional failure todisclose favorable evidence to the defense would initself amount to a denial of due process.l It alsowent beyond the doctrine of Mooney v. Holohan.By reaffirming the duty of the prosecution todisclose evidence material to punishment, theCourt appeared to be moving away from thecommon law view of the adversary process. Basingits reasoning upon the duty of the state to see thatjustice is done, rather than merely to convict, theCourt appears to require that any steps towardassuring that end be taken.

To recapitulate, the Court started with the rulethat the prosecution may not seek convictionsthrough evidence which it knows to be misleading.Later a rule evolved that required the prosecutionto disclose evidence which, within its judgment,would benefit the defendant with respect to theissue of guilt or innocence. Now the rule probablyrequires that the prosecutor disclose evidencefavorable to the defendant for purposes beyond themere issue of guilt or innocence. Would it be along or illogical step to say that such a generalpurpose, lying beyond the issue of guilt or inno-cence, might include the preparation to meet thecharges of the prosecution?

Furthermore, the judgment of what mightbenefit the defendant is no longer solely within thediscretion of the prosecuting attorney. As the rulenow stands, the .prosecution probably has anabsolute duty to disclose to the defendant any-thing which, in the court's view, may be of benefitto him for the prescribed purposes. The criterionis not the belief of the prosecator that the informa-

W373 U.S. at 87-88.mId. at 92.129 See, e.g., United States ex rel. Helwig v. Maroney,

271 F.2d 329 (3rd Cir. 1959), cert. denied, 362 U.S.954 (1960); Gay v. Graham, 269 F.2d 482 (10th Cir.1959).

tion would be helpful, or even his knowledge thatcertain information exists, but rather (1) whetherthe state has information and (2) whether suchinformation might be material.

To avoid reversals for nondisclosure, prosecutorswill probably submit evidence raising a disclosureissue to courts for in camera inspection and deter-mination 30 This could create a considerableburden for state trial judges and bring into clearerfocus the problem discussed by the Court in Jencksv. United Statesl There the Court noted that theobligation to review the prosecution's evidence formaterial favorable to the defendant for purposes ofimpeachment or determination of guilt or punish-ment may be burdensome to already busy judgesand that courts could not be expected to recognizeas would the advocate what items might befavorable.

1 2

As previously indicated Brady v. Marylandcontains language which may require that theprosecution make the required disclosures only"upon request" or "on demand." This implies that,where no demand is made by the defendant or hisattorney, the prosecution is not obligated to dis-close material evidence. When this issue wasraised in Barbee v. Warde1 33 the Court of Appealsfor the Fourth Circuit ruled that "[i]n gauging thenondisclosure in terms of due process, the focusmust be on the essential fairness of the procedureand not on the astuteness of either counsel." Thecourt held that failure of defense counsel to demandinformation did not deny the defendant a right toreceive it. TM

n0 See United States ex rel. Bund v. LaVallee, 344F.2d 313 (2d Cir.), cert. denied, 382 U.S. 867 (1965),in which, in response to demand for the grand jurytestimony of a witness, the prosecutor submittedthe transcript for in camera inspection by the courtto determine that no contradictions in the testimonyof the witness existed. This was a New York stateproceeding.

1 353 U.S. 657 (1957).mIn Alderman v. United States, 394 U.S. 165,

183-84 (1969), the Court noted that[a]dversary proceedings will not magically elim-inate all error, but they will substantially reduceits incidence by guarding against the possibilitythat the trial judge, through lack of time or un-familiarity with the information contained in andsuggested by the materials, will be unable to pro-vide the scrutiny which the Fourth Amendmentexclusionary rule demands.

Bfit in Taglianetti v. Unites States, 394 U.S. 316 (1969),it held that resort to adversary proceedings was neces-sary oily when in camera proceedings were inadequateto protect the defendant's rights with regard to elec-tronic surveillance.

m 331 F.2d at 846.lmSee also United States ex rel. Meers v. Wilkins,

19701

JERRY B. NORTON

The Supreme Court has not elaborated upon theramifications of its decision in Brady v. Maryland.Since 1963 it has avoided making pronouncementsdefining the limits of the duty to disclose. In Gilesv. Maryland,3 5 however, the Court was forced togreat lengths to avoid the Brady doctrine. Gilesinvolved a 1961 rape charge in which Giles and twoothers were convicted and sentenced to death. 3 6

The alleged victim, a sixteen year-old girl, had ahistory of juvenile charges, emotional illness, andpromiscuous behavior. The asserted defense wasconsent. At the trial the prosecution did not dis-close the girl's background, or the fact that afterthis alleged crime she accused two other men ofraping her on another occasion and that she hadattempted suicide.

The case presented the question of whether theprosecution was required to disclose evidencerelative to the victim's credibility. The Court,however, could not agree upon the answer to thequestion. Rather the "plurality".'1 took an unusualstep. At the time of the oral arguments, the Courtrequested copies of police reports which were not apart of the lower court's record. Examining thesereports, the Justices discovered several discrepan-cies between the reports and the testimony of thepolice officers and the alleged victim at the trial.On the basis of these discrepancies, they decidedto remand the case to the Maryland courts withdirections to determine whether or not the prosecu-tion had allowed misleading evidence to standuncorrected l3 Thus, the plurality avoided theissue of prosecutorial suppression by remandingunder the rule of Napue v. Illinois."5

Justices White and Fortas wrote concurringopinions. Justice White recognized that the caseraised the issue of the suppression of evidence butavoided interpretation of Brady'40 by orderingremand based upon his view that the suppressionpossibly violated Maryland Rules of Procedure,

326 F.2d 135, 137 (2d Cir. 1964), where the courtruled that "the case before us differs from Brady inthat the defense counsel here never requested thedisclosure of evidence from the prosecution, but wethink such a request is not a sine qua non to establisha duty on the prosecution's part." See also the con-curring opinion of Justice Fortas in Giles v. Maryland,386 U.S. 66 (1967).

5 386 U.S. 66, 96 (1967)."6 The Governor, however, commuted the sentence

to life imprisonment.w 386 U.S. at 102.w 386 U.S. at 74.13 360 U.S. at 269.140 386 U.S. at 102.

Rule 92241 Justice Fortas was the sole member ofthe majority to reach the Brady question. He feltthat is was unacceptable for the prosecution tosuppress information solely because it might notbe admissible at trial.16 He conceded that repetiti-ous information may be suppressed"' but empha-sized that suppression as well as misrepresentationfalls under the Brady rule:

I see no reason to make the result turn onthe adventitious circumstance of a request. Ifthe defense does not know of the existence ofthe evidence, it may not be able to request itsproduction.'"

Justice Harlan, with Justices Black, Clark andStewart joining, responded specifically to Fortas'interpretation of Brady. Mr. Justice Harlanaccused Fortas of relying on dictum from Brady'to unduly extend Napue. Mr. Justice Harlanemphasized that this extension was not only with-out support in the Brady holding but was alsospecifically rejected by Rule 16 of the FederalRules of Criminal Procedure,146 which specificallylimits discovery to "avoid abuses"14Z Thus, afterGiles v. Maryland the meaning of Brady v. Mary-land is uncertain.

In McCray v. Illinois'4" the Supreme Court ruledthat the Constitution does not require that theprosecution disclose the name of an informer. Thefull implication of this decision to a discussion ofcriminal discovery is uncertain, however. Themajority opinion distinguished McCray, whereidentity of the informer was important only to theissue of probable cause for arrest and search, fromcases where the demanded disclosure relates to theultimate issue of guilt or innocence.

Another important limitation upon the line ofcases which has been traced is that they do notrequire pre-trial discovery. Thus the Brady deci-sion must be understood to refer to the application,4 Id. at 94.112 Id. at 98. In Alderman v. United States, 394

U.S. 165 (1969), the Supreme Court ruled that theprosecution was obliged to disclose to the defenserecords of electronic surveillance which might haveled to the uncovering of evidence. The prosecution,however, conceded the obligation and the only disputewas as to the manner by which disclosure was to bemade. The Court did not discuss or cite the Bradydecision.

143 386 U.S. at 98.4 Id. at 102.15 Id. at 116.141Id. at 117.147 Id. at- 118. United States v. Manhattan Brush

Co., 38 F.R.D. 4, 6 (S.D.N.Y. 1965).'"386 U.S. 300 (1967).

[Vol. 61

CRIMINAL DISCOVERY

of tests of fairness to the prosecution at trial andnot at an earlier point in the proceedings9 It istrue that Brady and the Supreme Court casesantedating it were limited to disclosures at anytime before the end of the trial. Thus in Leland v.Oregon,150 the Court appeared to place emphasisupon the fact that the defendant had an opportu-nity to see his own statement before he had restedhis case, even though he had no opportunity beforethe trial.

On the other hand, it would be too simple to saythat the reasoning behind Brady and its com-panion cases is limited to disclosure at the trial.A logical argument may be made for the need offuller disclosure for preparation of the defense, aneed which cannot be met by sudden disclosureduring the heat of trial. Furthermore, knowledgeby the defendant of information favorable to himwill affect not only trial strategy, but also thedecision to enter a plea of guilty. This latterproblem arose in a case before-the United StatesDistrict Court for the Western District of Pennsyl-vania.ln

Early in 1947, one Hough, together with twoothers-Smith and Almeida-robbed a grocerystore. Hough, the defendant in this case, went intothe store with Almeida while Smith waited in thecar. While in the store, Almeida fired the pistolthat he was carrying. The defendant did not firehis pistol. As Hough and Almeida left the store, anoff-duty police officer stopped beside the car of therobbers. Other police officers arrived at the scene,and an off duty police officer was killed in an ex-change of gun fire. Hough, Almeida and Smithleft the scene of the robbery; but Hough fell out ofthe escaping car and was arrested. The other twowere not captured for over a year. When Houghwas arrested, he was carrying a .45 pistol.

On the advice of counsel Hough decided to pleadguilty to first degree murder, thereby hoping toavoid the death penalty. Although his plea wasaccepted, Hough was nevertheless sentenced todeath. After Almeida had also been arrested, tried,and sentenced to death, and while the trial ofSmith was in progress, it was learned that theprosecution had evidence which showed that theoff-duty police officer had been killed by a .38 bul-let. Hough had been carrying a .45 pistol whenarrested; and the bullet dug out of a wall in the

149 United States ex rel. Hough v. Maroney, 247 F.Supp. 767 (W.D. Pa. 1965).

150 343 U.S. 790 (1952).15247 F. Supp. 767.

store, admittedly fired by Almeida, showed thathe also was carrying a .45. Smith was carrying a.22 pistol; and witnesses agreed that at the timeof the killing he was operating the automobile andcould not have fired the weapon. This evidencetended to show that a police bullet had actuallycaused the death. None of this was disclosed toHough or his attorney before Hough entered hisplea of guilty. Neither was it revealed at the trialof Almeida. In an habeas corpus proceeding, theUnited States District Court reversed Almeida'sconviction.lu It ruled that the suppression inHough's case amounted to a deprivation of dueprocess. Further, the court ruled that the reversalwas not to be avoided through any distinctionbetween a plea of guilty and a verdict. It considered"Hough's plea of guilty as a conviction, for theentering of a plea of guilty by a defendant tocharges as contained in an indictment is in itself aconviction." 1- The court then said that false orsuppressed evidence can neither convict norcondemnu' 4

The problem indicated by the Hough case isobvious. When a defendant enters a plea of guiltybefore trial, the prosecution need not present itsevidence. Must it, however, present evidence whichmay be beneficial to the defendant before the courtaccepts the plea? The United States SupremeCourt has not made a definitive statement regard-ing the duty of the prosecution to make disclosurebefore a plea of guilty is entered. However, in the1960 case of Wilde v. Wyoming55 the defendantalleged that his plea of guilty to murder had beeninduced by lack of counsel and by the fact that theprosecution had "wilfully suppressed the testimonyof two eye-witnesses to the alleged crime whichwould have exonerated the petitioner."1 ' TheCourt, in remanding the case for further hearings,ruled that there was nothing "to justify the denialof hearing on the allegations." The import of thisdecision is that there apparently is some duty todisclose, even where there is to be no trial becauseof a forthcoming plea of guilty.

12 United States ex rel. Alneida v. Baldi, 195 F.2d815 (3d Cir. 1952), cert. denied, 345 U.S. 904 (1953).The total reversal of convictions in the cases of Almeidaand Hough distinguishes these from the otherwisesimilar case of Brady, in which only the sentence wasset aside. The different results, however, are apparentlydue to differences in state law and procedure, not todifferent constitutional interpretations.

1 247 F. Supp. at 778.'5 Id. at 779.155 362 U.S. 607.25 Id.

JERRY E. NORTON

The problems created by the constitutionaldecisions requiring disclosure may be extensive inmany states. Following, as many still do, a strictcommon law view of the adversary process, thestates have no efficient machinery for implement-ing the constitutional mandates of the SupremeCourt. The prosecution, while under an obligationto disclose certain information, has no method forformally disclosing it. Neither side has a recognizedprocedure for determining which items should orshould not be divulged. The result is that, perhapsyears later, the defendant may learn that the prose-cution had certain information, which the defend-ant contends should have been revealed, and willinitiate a collateral attack on the conviction.

A second problem created by these decisions isone of timing. It would seem obvious that a re-quirement of disclosure means effective disclosure.To be effective the information must be disclosedat a time when its import may be examined andweighed by the trier and the adversary. A dis-closure at the end of a trial of an important butdetailed document would not allow the defendantan opportunity to immediately develop the signifi-cance of the evidence, if indeed he even has anopportunity to place it in the proper perspective.

To demonstrate this a hypothetical problem maybe constructed from the facts in the Hough case.15If, at the time of the arraignment and immediatelybefore the defendant entered his plea of guilty, theprosecutor were to disclose that the victim hadbeen killed by a .38 bullet and that a .45 bullet wasfound in the wall of the grocery store being robbed,this would probably not indicate much to eitherthe attorney or his client. Neither knew the caliberof Almeida's pistol and Hough assumed thatAlmeida had fired the fatal shot. The bft-recog-nized right to notice would seem reasonably toapply here.'u Requiring some notice, whether it bestrictly "pre-trial" or not, would not be a radicalor illogical step.

DIscoVERY IN THE FEDERAL RULEs OFCRIMINAL PROCEDURE

Federal courts have not been in the vanguard ofthe movement to liberalize criminal discovery.159

167 247 F. Supp. 767.1-' See, e.g., Mullane v. Cent. Hanover Bank & Trust

Co., 339 U.S. 306, 314 (1950).1"9 Several states by decision or statute have more

liberal criminal discovery rules. See, e.g., State v.McGhee, 91 Ariz. 101, 370 P.2d 261 (1962); State v.Superior Court, 90 Ariz. 133, 367 P.2d 6 (1961);

This reluctance to innovate may be traceable to theopposition to criminal discovery voiced by suchrespected jurists as Learned Hand160 and BenjaminCardozo6m Perhaps it is due to a natural reluctanceto embark upon a venture which is dearly incon-sistent with the traditional adversary concept ofcriminal trials. Whatever the reason, clear traces ofa broadening federal criminal discovery have beendiscernible only within the last decade.

The original codification of federal criminalprocedure in the Federal Rules of Criminal Proce-dure appeared to allow the trial court some measureof discretion in ordering discovery. However, these

Jones v. Superior Court, 58 Cal. 2d 56, 372 P.2d919, 22 Cal. Rptr. 879 (1962); People v. Cooper, 53Cal. 2d 755, 770, 349 P.2d 964, 973 3 Cal. Rptr. 148,157, (1960); People v. Cartier, 51 Cal. 2d 590, 335 P.2d114 (1959); State v. Minor, 177 A.2d 215 (Del. Super.Ct. 1962); People v. Johnson, 356 Mich. 619,97 N.W.2d739 (1959); People v. Stokes, 24 Misc. 2d 755, 204N.Y.S.2d 827 (Ct. Gen. Sess. 1960); FLA. STAT. §225.04 (Supp. 1969); ILL. REv. STAT. ch. 38, § 114-9.

160 See, United States v. Violon, 173 F. 501, 502(S.D.N.Y. 1909), where Judge Hand said in dis-cussing a motion to inspect grand jury minutes,

I cannot satisfactorily speculate upon the evidencewhich must have been before the grand jury norwill I either myself inspect or permit another toinspect its minutes;

United States v. Garsson, 291 F. 646, 649 (S.D.N.Y.1923), where Judge Hand denied a defendant access toa grand jury's minutes by saying that

[No judge of this court had granted it, and I hopenone ever will. Under our criminal procedure theaccused has every advantage. While the prosecu-tion is held rigidly to the charge, he need not dis-close the barest outline of his defense. He isimmune from question or comment on his silence,he cannot be convicted when there is the least fairdoubt in the minds of any of the twelve. Why inaddition he should in advance have the whole evi-dence against him to pick over at his leisure, andmake his defense, fairly or foully, I have neverbeen able to see;

United States v. Dilliard, 101 F.2d 829, 837, whereJudge Hand said,

The defendants seem to suppose that they hadthe privilege of roaming about at will among anymemoranda made by the prosecution in prepara-tion for trial: that indeed is not an uncommon il-lusion, but it has nothing whatever to support it.161 See, People ex rel. Lemon v. Supreme Court of

New York, 245 N.Y. 24, 32-33, 156 N.E. 84, 86-87(1927), where Cardozo, C.J., traced the history ofresistance to discovery in criminal trial and found thatwhile the

... glimmerings of such a doctrine are to be found,as we have seen in courts other than our own...[and indeed allowance of such discovery may bethe proper course for the future, nonetheless, underthe present state of the law] ... the defendant, ...fails to make out her title to the remedy [of dis-covery].

[Vol. 61

CRIMINAL DISCOVERY

rules were narrowly construed. Rule 7(f),16 whichpermitted the court to order the prosecttion toserve a bill of particulars, was interpreted as arestatement of common law powersiln Thus,attempts to use Rule 7(f) to obtain evidence wererejected,1 6 as were attempts to use the rule toobtain the names of witnesses.1 65

The original rule of criminal procedure which

came closest to allowing some form of discovery

was Rule 16. This rule reads in part:

Upon motion of a defendant at any time

after the filing of the indictment or informa-tion, the court may order the attorney for the

government to permit the defendant to inspect

and copy or photograph designated books,

papers, documents or tangible objects, ob-

tained from or belonging to the defendant or

obtained from others by seizure or by process,upon a showing that the items sought may be

material to the preparation of his defense andthat the request is reasonable... 166

162 Fed. R. Crim. P. 7(f) (old):

The court for cause may direct the filing of a billof particulars. Motion for a bill of particulars maybe made only within ten days after arraignment orat such other time before or after arraignment asmay be prescribed by rule or order. A bill of par-ticulars may be amended at any time subject tosuch conditions as justice requires....

as amended, Feb. 28, 1966, effective July 1, 1966,Rule 7(f) now reads:

The court may direct the filing of a bill of particu-lars. A motion for a bill of particulars may be madebefore arraignment or within ter days after ar-raignment or at such later time as the court maypermit. A bill of particulars may be amended atany time subject to such conditions as justice re-quires.

See generally Orfield, Discovery and Inspection in FederalCriminal Procedure, 59 IV. VA. L. REv. 221 (1957).

in3 See Longsdorf, The Beginnings and Background ofFederal Criminal Procedure, 4 W. BARRON, FEDERALPnAcrcE AND PaocEDuRE 1, 32 (1951), in which thecommon law authority was traced to Rex v. Hodgson,2 C. & P. 422, 172 Eng. Rep. 484 (1828).

'64 See, e.g., Wong Tai v. United States, 273 U.S. 77,82 (1927); Frederick v. United States, 163 F.2d 536,545-46 (9th Cir. 1947), cert. denied, 332 U.S. 775(1947), wherein is cited a list of cases holding thatabsent a clear showing of abuse of discretion, thefailure of the court to allow a bill of particulars wouldnot be disturbed on appeal.

165 United States v. Elliot, 266 F. Supp. 318, 327(S.D.N.Y. 1967); United States v. Tucker, 262 F.Supp. 305, 307 (S.D.N.Y. 1966); United States v.Bennett, 36 F.R.D. 103, 105 (E.D.S.C. 1964), cert.denied, '385 U.S. 1005; United States v. Lebron, 222F.2d 531, 535-6 (2d Cir. 1955), cert. denied, 350 U.S.876; United States v. Malinsky, 19 F.R.D. 426, 428(S.D.N.Y. 1956).

1 6 Fed. R. Crim. P. 16 (old).

This rule, as adopted, was more restrictive than theoriginal draft of Rule 16, which authorized -thetrial court to order disclosure of any document orobject not privileged upon a showing of materialityand reasonableness01 7 As interpreted by the courts,Rule 16 was confined to its explicit language.Courts held that the rule did not entitle the defend-ant to examine his own confession,11 that of aco-defendant,6 9 investigative reports,70 or grandjury minutes.'

Finally, Rule 17(c) offered some apparent prom-ise as an instrument of discovery.'7' This'rleauthorized a trial court to order advance produc-

167The preliminary draft of the original Rule 16(then Rule 19) is quoted at BARRON, supra note 163,at 124:

Discovery and Inspection. Upon motion of thedefendant at any time after the filing of the indict-ment or information and after the defendant hasbeen taken into custody the court may order theattorney for the government to permit the inspec-tion and copying or photographing, by or on behalfof the moving party, of any designated books,papers, documents, or tangible objects, not privi-leged, upon a showing that the items sought maybe material to the preparation of the defense andthat the request is reasonable.

'"3United States v. Murray, 297 F.2d 812, 820(2d Cir.), cert. denied, 369 U.S. 828 (1962); Schaffer v.United States, 221 F.2d 17, 19-20 (5th Cir. 1955);Shores v. United States, 174 F.2d 838, 843-45 (8thCir. 1949). Contra United States v. Peace, 16 F.R.D.423, 424-25 (S.D.N.Y. 1954).

169 E.g. United States v. Buemfield, 85 F. Supp. 696,707-08 (W.D. La. 1949); United States v. Carter, 15F.R.D. 367, 370-71 (D.C. 1954).

170 United States v. Bentvena, 193 F. Supp. 485,498 (S.D.N.Y. 1960); United States v. Tirado, 25F.R.D. 270, 271 (S.D.N.Y. 1958); United States v.Fuentes, 25 F.R.D. 278, 279-(S.D.N.Y. 1958).

17 In Pittsburgh Plate Glass Co. v. United States,360 U.S. 395, 397 (1959), the Court held that the trialcourt's refusal to make grand jury minutes availableto the defendant was not error absent a showing of"particularized need." The Court did not specificallyrefer to Rule 16, but said that "any disclosure ofgrand jury minutes is covered by the Federal Rules ofCriminal Procedure 6...." It can be inferred thatsince Rule 6 did not allow discovery, Rule 16 certainlywould not allow it either.17

FE. R. Cpma. P. 17(c):

For Production of Documentary Evidence and ofObjects, a subpoena may also command the personto whom it is directed to produce the books, papers,documents or other objects designated therein. Thecourt on motion made promptly may quash ormodify the subpoena if compliance would be un-reasonable or oppressive. The court may directthat books, papers, documents, or objects desig-"nated in the subpoena be produced before the courtat a time prior to the trial or prior to the time whenthey are to be offered in evidence and may upontheir production permit the books, papers, doc-uments, or objects or portions thereof to be in-spected by the parties and their attornevs.

JERRY E. NORTON

tion of subpoenaed evidence to allow counsel anopportunity to inspect it. Courts, however, ruledthat this was designed to avoid delay at the trialand was not to be used as a discovery tool. 73

Documents which were subject to subpoena orat-trial production were not also subject to inspec-tion as a matter of right 74

Although the original Federal Rules of CriminalProcedure did not provide for broad or effectivediscovery, the Supreme Court in the 1950's devel-oped a type of limited trial discovery. In 1953 inGordon v. United States7 the Court ruled that acriminal defendant is entitled to production of awitness's prior inconsistent statements where thecontradictions concern relevant and importantmatters and where the demand is for production ofspecific documents and is not merely a fishingexpedition. Several years later in the widelypublicized Jencks171 case the Court dealt morespecifically with the problems raised by the demandfor production of inconsistent statements. InJencks the defendant moved to be allowed toexamine reports made by two witnesses, under-

'7, Bowman Dairy Co. v. United States, 341 U.S.214, 220 (1951), held that "Rule 17 (c) was not in-tended to provide an additional means of discovery."Rather, it was intended ".... to expedite the trial byproviding a time and place before trial for the inspec-tion of the subpoenaed materials." United States v.Marchisio, 344, F.2d 653, 669 (2d Cir. 1965), held that,"[u]nlike the rule in civil actions, a subpoena ducestecum in a criminal action is not intended for thepurpose of discovery...."

174 See United States v. Iozia, 13 F.R.D. 335, 338(S.D.N.Y. 1952), where the court rejected the de-fendant's interpretation of Bowman Dairy Co. v.United States, 341 U.S. 214 to the effect that it allowedall documents which are subject to subpoena underRule 17(c) to also be subject to inspection by thedefendant as a matter of right. The court in Ioziastated that it did not so construe the authority. Itemnihasized that any inspection by the defendant underRule 17(c) was not a matter of right but rather whollydiscretionary with the court.

17 344 U.S. 414, 418-19 (1953), held that wherestatements made by a witness

"... were contradictory of his present testimony,and that the contradiction was as to relevant,important and material matters... [and]... [t]hedemand was for production of these specific docu-ments and did not propose any broad or blindfishing expeditions among documents ... on thechance that something impeaching might turnup... we think... that an accused is entitled tothe production of such documents.276Jencks v. United States, 353 U.S. 657 (1957).

Jencks became a national cause c6Tlbre because itinvolved reversal of a conviction for signing a false non-communist affidavit. The decision forced the govern-ment to choose between producing the demandeddocuments and possibly divulging state secrets anddismissing the indictment.

cover agents for the Federal Bureau of Investiga-tion, who had testified against him. The SupremeCourt ruled that the trial court should haveallowed the defendant to examine the reportsbecause the reports, made contemporaneouslywith the occurrences to which the witnesses latertestified at trial, were reliable instruments withwhich to check the truthfulness of the witnesses'testimony at the trial. Furthermore, the Courtstated that the documents must be made availableto the defense for only the defense could adequatelydetermine which statements were effective indiscrediting the witnessj'7 Thus, the practicewhich had developed in several courts,"7 of theprosecution's delivering the statements to the trialcourt for in camera inspection to determine if therewere contradictions, was found to lack the neces-sary sensitivity.

Jencks was not ostensibly based on constitu-tional grounds but rather on the Court's super-visory powers 79 The Congress, accordingly, wasnot barred from exercising its Article III powersand passed the Jencks Act'80 in order to limit theunwanted effect of the decision. This provided, insummary, that (a) in Federal criminal prosecu-tions, no statement or report given to an UnitedStates agent by one other than the defendant shallby subject to discovery or inspection until afterthe witness who gave the statement has 'testified;(b) after the witness' testimony on direct examina-tion, the court shall, on motion of the defendant,order the prosecution to produce statements madeby the witness relating to the subject matter towhich he has testified; (c) if the prosecution claimsthat any statement ordered to be produced con-tains matters not relating to the subject matter ofthe witness' testimony, the court is to examine thatmatter, in camera, and to excise portions which donot relate to the testimony of the witness, beforedelivering the statements to the defendant; (d) theUnited States may elect not to comply with theorder to produce such statement, in which case thecourt shall order the testimony of the witness

177 353 U.S. at 668-9.178 See, e.g., United States v. Beeckman, 155 F.2d

580, 584 (2d Cir. 1946), United States v. Eheling, 146F.2d 254, 256 (2d Cir. 1944); United States v. Cohen,145 F.2d 82, 92 (2d Cir. 1944), cert. denied, 323 U.S.799.

""In Scales v. United States, 367 U.S. 203, 258(1961), the Court stated that ". . . the procedure re-quired by the decision of this Court in Jencks was notrequired by'the Constitution... ;" Palermo v. UnitedStates, 360 U.S. 343, 353 n. 11 (1959).

180 18 U.S.C. § 3500 (1964).

[Vol. 61

CRIMINAL DISCOVERY

stricken or declare mistrial; and (e) statements orreports as covered by the act are defined as writtenstatements made and signed, or otherwise adoptedor approved, by the witness, and recordings and

' transcriptions of recordings which are substantiallyverbatim recitals of oral statements and recordedcontemporaneously with the making of them.

Despite the uproar created by Jencks v. UnitedSates, the Congress' reaction in the Jencks Act wasmild. No attempt was made to bar production ofall documents, rather the act re-established theprocedure of in camera inspection by the trialcourt. However, under the act the trial court wasonly to determine the relevance of the documentsaid not attempt to locate contradictions.

In his concurring opinion in Palermo v. UnitedStales,"' Justice Brennan explained what may havebeen the reason for the Congress' limited response:

It is true that our holding in Jencks was notput on constitutional grounds, for it did nothave to be; but it would be idle to say that thecommands of the Constitution were not doseto the surface of the decision; indeed, theCongress recognized its Constitutional over-tones in its debates on the statute.18 2

Justice Frankfurter, speaking for the majority inPalmero, stated that the Jencks Act merely put instatutory form what the Court had meant in itsdecision in Jencks v. United States"' and that thestatute was called for after some lower federalcourts allowed demands far beyond the holding in

. the Jencks decision. l" Mr. Justice Frankfurter'sinterpretation of the purpose and scope of theJencks Act is reflected in the Court's decision inPittsburgh Plate Glass Co. v. United States."' Therethe Court held that the trial court did not err indenying a defense motion for production of a trialwitness' grand jury testimony. The Court sup-ported this decision by arguing that the Jencks Acthad defined the limits of the disclosure and thatmore liberal rules would restrict the effectivenessof the grand jury. However, in 1966, Dennis v.

-t360 U.S. 343, 360 (1959) (Brennan, J., joined byWarren, C. J., Black and Douglas, J. J., concurring.)11 Id. at 362-63. Some writers have suggested thatJencks may become a constitutional requirement.See, Fletcher, Pre-trial Discorery in State CriminalCases, 12 STAN. L. REv. 293, 303 (1960).

181 353. U.S. at 345-46.I" See, H. R. REP. No. 700, 85th Cong., 1st Sess.

(1957), and S. RElP. No. 569, 85th Cong., 1st Sess.( 1957). See also S. REP. No. 981, 85th.Cong.,. 1st Sess.1957); 103 CoNG. REc. 15939-41 .(1957).

18360 U.S. 395 (1959).

United States'8 6 established the general rule thatthe grand jury testimony of a trial witness shouldbe disclosed. After citing increased allowance ofdisclosure in lower federal courts, Justice Fortas,speaking for the majority, said, "These develop-ments are entirely consonant with the growingrealization that disclosure rather than suppressionof relevant materials ordinarily promotes theproper administration of criminal justice." 18

It should be emphasized that these decisionsand legislative enactments have not created a sys-tem of pre-trial discovery of any sort; rather, theyhave authorized at-trial disclosure of informationfor impeachment purposes. The Jencks Act spe-cifically prohibits pre-trial disclosure of documentscovered by the statute.l

Actual pre-trial discovery in federal courts"19

began with the amendments to the Federal Rulesof Criminal Procedure, which became effective inJuly, 1966.191 Among these, the important rules fordiscovery purposes were amended Rule 16 and newRule 17.1.

Amended Rule 16 provides, in summary, that(a) upon motion of a defendant, the court "may"order the attorney for the government to permit

186 384 U.S. 855 (1966)."8 Id. at 870."s18 U.S.C. § 3500 (a) (1964) provides:In any criminal prosecution brought by the UnitedStates no statement... in the possession of theUnited States which was made by a Governmentwitness or prospective Government witness (otherthan the defendant) to an agent of the Governmentshall be the subject of subpoena, discovery, or in-spection until said witness has testified on directexamination in the trial of the case."'9 The limited scope of federal criminal discovery

under the rules and Jencks was criticized by Chiefjustice Traynor of the California Supreme Court in1964:

The statutory law and the Federal Rules, inade-quate not only in themselves but in combinationand diluted further by paltry interpretation, haveled only to the most rudimentary form of criminaldiscovery. It ekes out an exstence" in a still un-favorable enviroment. Judges continue to bar dis-covery upon the rationalization at odds with theapparent intention of the draftsman of the rules,that failure to authorize discovery is an impliedprohibition of it.... [Tihe future of discovery infederal prosecutions looks unpromising so long asthe federal courts fail to exercise their inherentpower to foster a wholesome intergration of dis-covery procedures into the judicial process.

Traynor, Ground Lost and Found in Criminal Dis-covery, 39 N.Y.U.L. Rlv. 228, 239 (1964). This waswas written, of course, before Dennis v. United Statesand before the new Federal Rules of Criminal Pro-cedure were adopted by the Supreme Court.

190 The rules, together with the dissent of justiceDouglas, are reported at 39 F.R.D. 69, 252 ff.

JERRY E. NORTON

the defendant to inspect and copy any "relevant"(1) written or recorded statement of the defendantwithin the control of the government and which isknown, "or by the exercise of due diligence maybecome known" to the prosecution, (2) results of"physical or mental examinations, and of scientifictests or experiments" within the control of thegovernment and which are known "or by the exer-cise of due diligence may become known" to theprosecution, and (3) the grand jury testimony ofthe defendant; (b) upon motion of a defendant,the court "may" order the attorney for the govern-ment to permit the defendant to inspect and copy"books, papers, documents, tangible objects,buildings or places" within the control of thegovernment upon a showing of "materiality to thepreparation of his defense and that the request isreasonable", except that "internal governmentdocuments" and statements by government wit-nesses not falling within the Jencks Act may notbe ordered disclosed; (c) if the court orders dis-closure under (a) (2) or (b), upon motion of thegovernment, it may "condition its order" by re-quiring that the defendant permit inspection of"scientific or medical reports, books, papers, docu-ments, tangible objects" or copies of these whichhe "intends to produce at the trial and which arewithin his possession, custody or control, upon ashowing of materiality to preparation of thegovernment's case and that the request is reason-able," except internal defense documents andstatements of witnesses; (d) in its order, the courtmay specify the time, place and manner; (e) thecourt may make protective orders and the prose-cution may move for such an order in the form of awritten statement for in camera inspection by thecourt; and (g) there is to be a continuing duty todisclose when new material is located, enforced bya second order to disclose, followed by a continu-ance, order prohibiting introduction into evidenceof the withheld material or other order deemednecessary.

At first glance, Rule 16 would seem to still bediscretionary with the trial court. Even subsection(a), which authorizes unconditioned discovery ofthe items covered, contains the "may". It has beensuggested, however, that a comparison of subsec-tion (a) with the other subsections and with theearlier Rule 16, dictates a more limited view of thecourt's discretion. 9' Subsection (a) does not con-

191 Rezneck, The New Federal Rules of CriminalProcedure, 54 Gxo L.J. 1276, 1277 (1966).

tain the requirement that the demand be shownto be "reasonable" as is required for disclosuresunder subsections (b) and (c) and as was requiredunder old Rule 16. Because of the apparent lib-eralization of disclosures, it has been suggestedthat subsection (a) may be relatively absolute,subject only to protective orders.1 1

2 Several recentdecisions, however, have held that disclosureshould not be granted routinely upon the defend-ants' request,'9 3 and that broad discretion remainswith the court.

While subsection (a) requires only that demandsfor disclosure be "relevant," subsection (b) re-quires a showing of reasonableness and materiality.However, because the defendant has no power totake depositions or interrogatories on which tobase his motions, these requirements of reason-ableness and materiality must be given a liberalconstruction if the subsection is to provide ef-fective discovery. 94

Another important provision of amended Rule16 is the authorization for reciprocal discovery.The defendant may move for examination of hisown statements and grand jury testimony with-out showing them to be material or his requestreasonable; but when he asks for physical or men-tal tests or scientific reports under (a) (2) or otherevidence under (b), he then gives the court powerto condition his request upon his willifigness todisclose.

Justice Douglas, in a statement accompanyingthe new Rules of Criminal Procedure, objectedto Rule 16.

The prosecution's opportunity to discoverevidence in the possession of the defense issomewhat limited in the proposal with whichwe deal in that it is tied to the exercise by thedefense of the right to discover from the prose-cution. But if discovery, by itself, of informa-tion in the possession of the defendant wouldviolate the privilege against self-incrimina-tion, is it any less a violation if conditioned onthe defendant's exercise of the opportunityto discovery evidence? May benefits be condi-tioned on the abandonment of constitutionalrights?195

192 Id.11 United States v. Carrean, Inc., 42 F.R.D. 408,

413 (1967); See also, United States V. Kaminsky, 275F. Supp. 365 (1967); and United States v. Diliberto,264 F. Supp. 181 (S.D.N.Y. 1967).

14 Rezneck, supra note 191, at 1279.

195 39 F.R.D. 276, 277.

[Vol. 61

CRIMINAL DISCOVERY

Despite this possible difficulty, Rule 16 does at-tempt to meet the fear sometimes expressed thatdiscovery may discourage preparation. Internaldocuments, reports and memoranda are exempted

'from discovery in subsections (b) and (c). Theexemptions thus provided restrict federal criminaldiscovery in the same manner that Hickman v.Taylor' limited federal civil discovery.

A further advantage of new rule 16 is the re-quirement of due diligence placed on the govern-ment attorney. Both subsections (a) (1) and (a)(2) require the government attorney to disclosematerial which is either known to and controlledby him, or which "by the exercise of due diligencemay become known" to him. This provision pre-cludes "convenient ignorance" by the governmentattorney.

Rule 16 contains several radical innovations infederal criminal discovery. However, the effect ofthe rule in enlarging the scope of discovery willdepend largely upon the willingness of the federaldistrict courts to experiment with it. Whethercaution will prevail over experimentation cannotbe accurately predicted. Nonetheless, though theaccumulated data is insufficient to support firmconclusions, it appears that district courts haveoften shown an unwillingness to allow discoveryto the extent authorized by the law.' 97

Critics of Rule 16 have speculated that subsec-tion (c), which provides for reciprocity, may ac-tually operate to discourage discovery in compli-cated criminal cases, where discovery is mostneeded. 9s They have pointed out that the ruledoes not cover many of the discoverable itemswhich would be most valuable to the defense:names of witnesses in non-capital cases, or the pre-trial disclosure of Jencks Act statements 99

Neither does Rule 16 provide for disclosures whichmay be required by the Constitution as interpretedin Brady v. Maryland.00

The second important change in the FederalRules of Criminal Procedure is new Rule 17.1,which provides for pre-trial conferences on motionof either party or the court. However, a conferencecannot be held where the defendant is not repre-sented by counsel. In order to assure the defense

196 329 U.S. 495 (1947).197 Interviews with Assistant State's Attorneys and

federal judges, February and May, 1967 (names andfurther ififormation available from author).

11 Rezneck, supra note 191, at 1289-90.199 Id.200 373 U.S. 83 (1963). See also, concurring opinion of

Justice Fortas in Giles v. Maryland, 386 U.S. 66 (1967).

that the pre-trial conference will not be used as amethod for obtaining incriminating admissions,-the rule provides that no admission made by thedefendant or his attorney at the conference maybe used against him unless reduced to writing andsigned by both the defendant and his attorney.With these limitations, the rule apparently envi-sions a conference not unlike those in civil cases.m

The rule provides that the court shall prepare andfile a memorandum of the matters agreed upon atthe conference.

While informal pre-trial conferences, usually inthe form of "plea bargaining" sessions, are not un-common in criminal cases, Rule 17.1 is novel ingiving formal authorization and definition to theprocess. The rule is still too new for an accurateassessment of its value. Nevertheless, some at-torneys are optimistic, based on experience withinformal pre-trial conferences in state courts.These attorneys feel that Rule 17.1 may in factbe more valuable in obtaining disclosure than newRule 16.212 In addition to promoting disclosure, suchconferences may contribute to narrowing the issuesat trial.2°O Attorneys also feel that the pre-trialconference may contribute to settlement, or "pleabargaining", in criminal cases. Such a result would,of course, depend upon the willingness of the trialcourt to permit this to be included in such con-ferences.

2U

UsE o CIviL DIscovERY TooLs mNENFORCEMENT or DiscovERY

At present, where discovery is allowed in crimi-nal proceedings, there are few regularized proce-dures to ensure meaningful disclosure. Unlessdiklosure is voluntary, discovery is generally bymotion in court to order the opposition to disclosespecified information. 0 5

In most states, discovery is a matter of discre-tion with the trial court rather than a matter ofright.2°6 This situation prohibits regularized proce-

20 1 FED. R. Civ. P. 16.2102 Interviews, supra note 197.203 I.204The American Bar Association has recommended

that judges not participate in plea disussions. ABAPRojxcT ON MioNm STANDARDs FOR CRMqALJUSTICE, STANDARDS RELATING TO PLEAS OF GUaTr§ 3. (Approved Draft, 1968).

2 P For a discussion of the contents of a defendant'smotion for discovery, see Garber, The Growth of Crimi-nal Discovery, 1 Am. Csnx L.Q. 3, 23-25 (1962). Anaffidavit is generally necessary to support such amotion.

20 In most jurisdictions where criminal discoveryhas been permitted the trial courts have led the way,

JERRY E. NORTON

dures such as depositions and interrogatories.Since the proper scope of discovery remains unde-fined courts are forced to determine what shall bedisclosed on a case by case basis.m It is also possi-ble that the special characteristics of criminal caseswill dictate different procedures from those fol-lowed in civil cases.2

08

The primary discovery tools in civil cases aredepositions and interrogatories. Rules 26, 30, 31,and 33 of the Federal Rules of Civil Procedureempower parties in civil cases to require otherparties and third persons to disclose informationwhich they may have regarding the dispute. Nojurisdiction has a criminal procedure rule analo-gous to Civil Rules 30 and 31,209 which provide fordepositions on oral examination and for writteninterrogatories. California courts, which havebroadened other areas of criminal discovery, havespecifically declined to allow the defendant to takedepositions.

210

Harris v. Nelson authorizes the use of inter-rogatories in habeas corpus proceedings institutedby state prisoners so that appropriate facts may

but in California the appellate courts seem to havetaken the initiative. See Fletcher, Pretrial Discoveryin State Criminal Cases, 12 STr. L. Pxv. 293 (1960);Loulsell, Criminal Discovery: Dilemma Real or Ap-parent?, 49 CAIX" L. R.v. 56 (1961) and discussionsupra at page 16. Although many trial courts havebeen reversed on appeal for allowing discovery in acriminal case, many appellate courts are encouragingthe lower courts to exercise their discretion. State exrel. Mahoney v. Superior Court, 78 Ariz. 74, 275 P.2d887 (1954); People v. Johnson, 365 Mich. 619, 97N.W.2d 739 (1959); Layman v. State, 335 P.2d 444(Okla. Crim. 1960). The federal courts, on the otherhand, allow discovery only in isolated cases where themoving party is able to particularize a need or interest.United States v. Procter & Gamble Co., 356 U.S. 677(1958). The Court in Palermo v. United States, 360 U.S.343, 354 (1959), said that "[I]t would indeed defeat...[the Jencks Act's] design to hold that the defense maysee statements in order to argue whether it shouldbe allowed to see them."

207 See Traynor, Ground Lost and Found in CriminalDiscovery, 39 N.Y.U.L. REv. 228, 245 (1964). See, e.g.,ILL. REv. STAT., ch. 38, §§ 114-10 to 114-13 (1967);DEL SUPER. CT. (Cams.) R. 16, MD. R. P., R. 728.

200 For example, since the defendant has the rightnot to incriminate himself, it may be necessary torestrict the extent of discovery in a criminal case. Also,differences from the civil practice may be necessarysince in a criminal proceeding one side, the state, hasgreater means for fact finding.

205 A number of jurisdictions have statutes or courtrules authorizing the taking of depositions, at least bythe defendant. These are, however, similar to FederalRule 15 (a), in that they are designed to preservetestimony, but not discover it. But see supra note 79.

210 Clark v. Superior Court, 190 Cal. App. 2d 739,12 Cal. Rptr. 191 (1961).

be secured. 2 The decision does not apply Rule 33of the Federal Rules of Civil Procedure which islimited by Rule 81 (a) (2) to apply only to habeascorpus to

the extent that the practice in such-proceed-ings is not set forth in statutes of the UnitedStates and has heretofore conformed to thepractice in civil actions.72

But the Court noted that

in appropriate circumstances, a district court,confronted by a petition for habeas corpuswhich establishes a prima facia case for relief,may use or authorize the use of suitable dis-covery procedures, including interrogatories,reasonably fashioned to elicit facts necessaryto help the court to 'dispose of the matter aslaw and justice require.' 28 U.S.C. § 2243.21

Thus, in one unique situation the civil discoveryprocedures have been incorporated into the crimi-nal procedure.

As was pointed out earlier, the prosecutiongenerally has more effective means to obtain rele-vant information from witnesses than does thedefense. If unable to obtain information volun-tarily, the prosecution has the power to subpoenarecalcitrant witnesses to appear before a grandjury or other investigatory body.27 4 As long asgrand jury testimony continues to be unavailable

211394 U.S. 286 (1969).212 FED. R. Crv. P., 81(a) (2).213Harris v. Nelson, 394 U.S. 286, 290 (1969).224 Only rarely can a defendant obtain a copy of the

grand jury testimony before the trial. Rule 6 (e) of theFederal Rules of Criminal Procedure provides fordisclosure of grand jury minutes to government attor-neys, but makes disclosure to the defendant dependentupon the discretion of the court. The Supreme Court inPittsburgh Plate Glass Co. v. United States, 360 U.S.395 (1959), has said that such discretion should beexercised only upon a showing of "particularized need."There are two recognized needs at present: 1) A de-fendant's testimony to the grand jury is disclosablewhere the charge is that the defendant perjured him-self by that testimony, United States v. Rose, 215 F.2d617 (3d Cir. 1954); and 2) disclosure is sometimespermitted upon a motion to dismiss the indictment,though only where the grounds for dismissal are speci-fied and the facts set forth with particularity, UnitedStates v. Nasser, 301 F.2d 243 (7th Cir.), cert. denied,370 U.S. 923 (1962). The main reason for the SupremeCourt rule against discovery of grand jury testimonyis that the effective operation of the grand jury re-quires secret proceedings. See United States v. Procter& Gamble Co., 356 U.S. 677, 682 (1958). This reason-ing is perhaps specious in light of the prosecution'sready access to the grand jury proceedings and thetendency by the prosecution to use these proceedings asa deposition. Sherry, Grand Jury Minutes: The Un-reasonable Rule of Secrecy, 48 VA. L. REv. 668 (1962).

[Vol. 61

CRIMINAL DISCOVERY

to the defense, at least before trial, the prosecutionwill prefer to obtain its evidence in this 'mannerrather than by the taking of a deposition at whichthe defense may be present.

The right to depose witnesses would be valuableto the defendant since otherwise state witnessesmay be unwilling to talk to him or his attomey.In the deposition of an unwilling witness in a civilcase a proper motion by the deponent will permithim to treat such a person as a hostile witness andquestion the witness as on cross-examination.u 6

This procedure could be extremely valuable to thedefense in a criminal case.

There probably is no valid objection to permit-ting the defendant to depose an eyewitness to thecrnme.2 7 This procedure would give the defendantadequate time in which to appraise the prosecu-tion's evidence and to prepare a defense based onsuch evidence. Depositions, however, also wouldgive certain defendants the necessary opportunityand information to create a false defense which isone danger motivating those who oppose extendeddiscovery. Opponents of liberalized discovery alsonote that law enforcement officials and technicianscould not be deposed without the risk of revealingthe prosecution's full case. Despite these problemsit is clear that the maintenance of the status quowith its grave inequity for the defendant is not afinal nor a desirable answer.

•215Those who oppose pretrial discovery generallyfear that it would give the defendant an undue ad-vantage since his privilege against self-incriminationwould still* substantially insulate him from discovery,he might resort to perjury and witness-tampering. SeeState v. Tuner, 13 N.J. 203, 98 A.2d 881 (1953). Thisadvantage is perhaps countered by the prosecution'sbroad power of investigation. See Goldstein, TheState and the Accused: Balance of Advantage in Crimi-nal Procedure, 69 YALE L.J. 1149 (1960). But in eithercase there are not enough facts on which to base ameaningful judgment. That is, the fear of the defend-ant's'abusing pretrial discovery seems to be more apriori than anything based in experience. See Brennan,The Criminal Prosecution: Sporting Event or Quest forTruth?, 1963 WAsH L. Q. 279.210 FED. R. Civ. P. 26 (c).

17 But see Traynor, supra note 189, at 245, in whichhe justifies the refusal of California courts to allowdepositions of witnesses:

The prosecutor is directly involved in the conductof the action and is therefore subject at all times tothe inherent power of the court to regulate theproceedings before it. Independent witnesses onthe other hand, may be strangers to the litigationexcept when testifying, and the courts are under-standably slow to invoke their inherent power toexpand compulsory process against such witnesses.

The question arises, however, whether witnesses incivil cases, where they are subject to- subpoenas fordepositions are also "strangers to the litigation."

There also is no policy or constitutional objec-tion to discovery depositions of third parties bythe prosecution, unless the depositions are to beused at the trial in the absence of the witnessYThis may violate the constitutional guaranty thata defendant is to be confronted by the witnessesagainst him.2 9

Rule 34 of the Federal Rules of Civil Procedureprovides for production of documents and thingsfor inspection by the oposing party. A similarprocedure is provided in Rule 16 of the FederalCriminal Rules,m which allows pretrial inspectionand copying of documents and other tangible ob-jects in a few situations. Since Rule 34 dependsupon court order, its adaptation to criminal dis-covery, which also proceeds upon court order,would not necessitate serious revision in the ad-ministration of the criminal law.

Rule 35 of the Federal Rules of Civil Procedureauthorizes the court to order a party to submit tophysical or mental examination. Similarly statutesor rules may require the defendant to sub-mit to certain tests and examinations. Statuteswhich require the defendant to submit to a bloodalcohol test have been ruled constitutional.2 1' Thedefendant may be required to submit to a mentalexamination if he claims to have been insane atthe time of the crime or incompetent to standtria.' At present, the defendant has no power torequire another, such as a witness or an allegedvictim, to submit to physical or mental examina-tion. Since by the nature of a criminal proceedingany person to be examined by the defense wouldbe someone other than a party, the courts orlegislatures may be reluctant to extend this powerto the defense despite its possible usefulness in

218 4 BARRON, FEDERAL PRACTICE AND iPOCEDURES

§ 2021 (1951).219 U.S. CONST. amend. VI; Pointer v. Texas, 380

U.S. 400 (1965); cf. 60 J. Crs. L.C. & P.S. 195 (1969).220 Rule 16 is the only Federal Rule of Criminal

Procedure for discovery, Bowman Dairy Co. v. UnitedStates, 341 U.S. 214 (1951), but it is hampered by theproviso that the items sought must have belonged to orhave been obtained from the defendant, or have beenobtained from others by seizure or by process. Hence,the purpose of Rule 16 is to protect the defendant'sproperty right in his own goods and to insure his accessto documents that the prosecution seizes from thirdpersons by subpoena. It does not facilitate the de-fendant's discovery of documents important to hisdefense. See United States v. Murray, 297 F.2d 812(2d Cir.), cert. denied, 369 U.S. 828 (1962).

12 Schmerber v. California, 384 U.S. 757 (1966).

For a list of state statutes requiring examination,see State v. Whitlow, 45 N.J. 3, 11-14, 210 A.2d -63,767, n.1 (1965).

10701

JERRY E. NORTON

determining the extent of a victim's injury or thecredibility of a witness.

Civil Rule 36, which is rarely invoked in civilcases, authorizes a party to request admissions offact or opinions on the genuineness of documents.luIn criminal procedure a similar rule would be oflittle practical value since the only sanction forviolation is the imposition of the costs of provingthe fact on the party unwilling to cooperate. Amonetary sanction would not influence either theprosecution or the defense, especially where thedefendant is indigent since the expense of proofprobably will be borne by the government. Ofcourse, no sanction should induce the defendant toease the prosecutor's burden of coming forwardwith the evidence.

Another procedure used in civil cases which maybe adaptable to criminal cases is the pretrial con-ference.m Rule 17.1 of the Federal Rules of Crimi-nal Procedure allows the pretrial conference incriminal procedure. Although there has been littleexperience under Rule 17.1, it may become anextremely useful device in criminal law. At theconference the issues of the case are narrowed andconsequently, the element of surprise at the trialis reduced. Most attorneys believe the conferenceshelpful in effecting disclosure between the par-ties.no Pleas of guilty also are frequently promptedby such conferences.n 6 Instead of being limited todisclosure as required in a specific court order, asis the practice now,m the pretrial conference allowsgreater flexibility because the parties can negotiatedisclosure without imposed restriction.

Some writers have suggested that the rules ofcriminal procedure should incorporate the proce-dures allowed in the civil rules.22 But full applica-tion is impossible because the problems incidentto discovery in criminal cases are different fromthose in civil suits. For example, while at firstthought depositions may seem useful additions tocriminal discovery, two different standards wouldbe required: one for the prosecution depositionsand one for the defense depositions. The dual

2Striegel, Request for Admissions-The NeglectedTool of Discovery, 5 WAsHasuR L.J. 47 (1965).

22 FxD. R. Cx. P. 37n21 Interviews, February to May, 1967, with United

States' Attorneys and federal district court judges(further information available from author).

n6 Id. See also Brennan, Remarks on Discovery, 33F.R.D. 56 (1963).

FWD f. R. Civ. P. 16.m See Goldstein, The State and the Accused: Balance

of Advantage in Criminal Procedure, 69 YAS;x L.J. 1149,1192-97 (1960); 51 CALIF. L. ERv. 135, 141-44 (1963).

standards follow from the dictates of the FifthAmendmen02 and from the unequal ability of theparties in obtaining relevant information. Theseproblems could limit the usefulness of interroga-tories and depositions. The work product conceptalso would require redefinition for use in, the crimi-nal law since most evidence that the defendantwould want to inspect arises out of the prosecu-tion's investigation.

Most disclosure is made by the prosecution andit is enforced by the same methods as are otherprocedural or due process requirements.23 0 FederalRule 16 (g) provides that if any party fails to com-ply with a discovery order

the court may order such party to permit thediscovery or inspection of materials not previ-ously disclosed, grant a continuance, or pro-hibit the party from introducing in evidencethe material not disclosed, or it may entersuch other order as it deems just under thecircumstances.m

If the prosecution's failure to disclose is uncoveredafter the trial, the conviction may be vacated anda new trial ordered. 232

Enforcing the prosecutor's discovery of defenseevidence is more difficult. Some states requiredisclosure of an alibi and most authorize the trialcourt to refuse to permit the introduction of evi-dence to establish a surprise alibi.23 This sanctioncould be expanded to cover other required dis-closures. Many feel that such a rule may be un-necessarily harsh, even if constitutional. Criticssuggest that courts would be hesitant to use thissanction and would rely on less stringent means ofenforcement 2 Other procedures to aid the prose-cution if the defendant refuses to disclose includegranting a prosecution's motion for a continuanceuntil the defendant complies or permitting com-ment in the presence of the jury upon the defend-

22 It is clear that the prosecution would be put at agreater disadvantage were depositions allowed. Hiswitnesses would have to respond to the defendant'squestions while the defendant could invoke his privi-lege against self-incrimination.

n0 See, 18 U.S.C. § 3500 (1957), the "Jencks act",in which a witness for the prosecution may not testify,or his testimony may be stricken, if his prior state-ments are not disclosed.

23, FED. R. Clmu. P. 16 (g).

2 See e.g., Ashley v. Texas, 319 F.2d 80 (5th Cir.1963), cert. denied, 375 U.S. 931 (1963).

See 76 HAnv. L. Rxv. 838, 839 (1963).- Rezneck, The New Federal Rules of Criminal

Procedure, 54 GEORGETOWN L.J. 1276 (1966).

[Vol. 61

CRIMINAL DISCOVERY

ant's refusal. Both of these remedies, however,are of uncertain value.

Also, refusal to obey discovery orders may bepunished through the court's contempt power.05

This might be effective in many cases, althoughsome defendants may prefer punishment for con-tempt rather than make damaging disclosures in aserious felony prosecution.

Disciplinary power over the defense attorneymight also be an effective means to enforce dis-covery. 6 Obviously, this -sanction would be oflimited value. The defendant's attorney may notknow the information to be disclosed. This en-forcement procedure would complicate the at-torney-client relationship. For example, the clientmay refuse to allow disclosure but the attorneystill may be unable to withdraw from the case.sa

To avoid such enforcement problems, Californiadecisions rely principally upon voluntary exchangeof information.ms Thus, the defendant would bediscouraged from refusing to. disclose evidenceprimarily by being barred from receiving disclo-sures from the prosecution. Similarly, in order toenforce the requirement of continuing discovery,the drafters of Federal Rule 16 were forced toprovide a continuing obligation of discovery whereunder a conditional order the defendant has alreadyreceived the information sought from the govern-ment and has not revealed matter ordered to beprovided.rs

CONCLUSION

We have seen that the early and adamant com-mon law opposition to criminal discovery has beenmodified both in England and in several Americanjurisdictions. Indeed, many of the arguments

23 See, e.g., FED. R. CRnm. P. 16 (g).236 See generally, FED R. C=ir. P. 16 (g).= This would be analogous to the ethical problem of

permitting a criminal defendant to give perjuredtestimony. See Freedman, Professional Responsibilityof the Criminal Defense Lawyer: The Three HardestQuestions, 64 Mca. L. Rav. 1469 (1966).

2a Jones v. Superior Court, 58 Cal. 2d 56, 372 P.2d919 (1962).

20The Note of Advisory Committee on Rules in18 U.S.C.A. Rule 16 (g) provides that there is a con-tinuing obligation on a party subject to a discoveryorder with respect to material discovered after initialcompliance. The note also states that the rule gives widediscretion to the court in dealing with the failure ofeither party to comply with a discovery order. "Suchdiscretion will permit the court to consider the reasonswhy disclosure was not made, the extent of otherprejudice, if any, to the opposing party-, the feasibilityof rectifying that prejudice by a continuance, and anyother relevant circumstances."

advanced in support of strict restraints on criminaldiscovery are not sound. In particular, they con-flict with the presumption of innocence which isfundamental to the Anglo-American system ofjustice. While Lord Kenyon stated that criminaldiscovery would subvert the whole system ofcriminal law by allowing more defendants to es-cape conviction, it appears that discovery ismore significant in the preparation of the case ofan innocent accused than that of'one who is guilty.

Those American jurisdictions that have recog-nized the weakness-in arguments against criminaldiscovery asserted that fairness to the defendantdemanded that he be allowed access to certain in-formation. In response, several states and thefederal government enacted statutes providing forlimited discovery.10

The Supreme Court spoke on the matter inBrady v. Maryland24 providing the furthest exten-sion of the defendant's rights to criminal discovery.That decision established a defendant's right toall evidence in the possession of the prosecutionthat is material to his guilt or punishment. Yet,most states have not provided adequate and effec-tive means for a defendant to assert his right todiscovery in response to the Brady decision.

The American Bar Association has drafted aset of standards for pre-trial discovery in view ofthe states' failure to codify a defendant's discoveryrights.Y The Bar committee noted:

In order to bring potential constitutionalissues to the fore at the earliest practical time,and to make for appropriate and enduringdispositions, it seemed essential that defense

•counsel receive as much information aboutthe case as feasible before trial or other dispo-sition. 43

There are two significant concepts implicit in thisstatement of purpose. First, it recognizes thatinadequate pre-trial discovery violates due process.Secondly, it underscores the policy behind ex-panded post conviction relief which is to rectifyconstitutional errors regardless of when they areraised.2"

210 See, supra notes 172 and 207.24 See p. 22 supra and note 123.2., AmcAN BAR AssocrAToN PROJECT ON MnI-

MUM STANDARDS FOR CR.nITNAL JusTICE DiscovaRYAND PRocauRE BEroRE TRuL (Tentative DraftMay, 1969) [hereinafter cited as ABA Standards].

213 Id. at 2.

2144 Kaufman v. United States, 394 U.S. 217 (1969);cf. 61 J. CRw. L., C. & P.S. 51 (1970).

1970]

JERRY E. NORTON

Finality and efficiency in criminal law adminis-tration require full and fair disclosure as early aspossible in a criminal prosecution. This require-ment for discovery is expressed in Section 1.2 whichstates the general policy that "discovery prior totrial should be as full and free as possible consistentwith protection of person, effective law enforce-ment, the adversary system, and national se-curity." 245 In order to effectuate this policy, therules outline a broad range of procedures imposingobligations of disclosure upon prosecution anddefense.26 The obligations reveal the intent of theCommittee to encourage voluntary pre-trial ex-change of relevant information in order to avoidtime consuming recourse to the courts.w

The disclosures that may be required of thedefendant under standard 3.1 are non-testimonialin character. They include provisions for appear-ance in a line up, speech for identification by wit-nesses, fingerprinting, and photographs. A defend-ant might also be called upon to try on articlesof clothing, permit the taking of specimens ofmaterial from under the fingernails, give hand-writing specimens, allow for access to samples ofblood or hair, and submit to reasonable physicalor medical inspection of his body.

The Committee asserted:

Although this standard [3.1] deals with mat-ters customarily regarded as investigativeprocedures rather than pretrial discovery,both conceptually and practically there is noreason why they should be viewed in suchlimited fashion. In the sense that the proce-dure involves the acquisition of material andinformation before trial other than by ex-changes between opposing counsel, it is nodifferent from the taking of depositions,which has long been the heart of pretrial dis-covery in civil cases.na

Prosecuting authorities will be aided by theproposal's precise statement of what the prosecu-tion can demand of a defendant since section 3.1contemplates the creation of an enforceable legalright to such disclosures. Courts will be empoweredto enforce compliance through traditional con-tempt sanctions.mO Contempt will also be available

2 ABA STAmAPSD § 1.2.246 Id. parts II & III (Introduction).27 Id.at 54 (Commentary), § 2.1.m Id. § 3.1 (Commentary).249 Id. § 4.7 and Commentary.

against defense attorneys who advise their clientsnot to cooperate in the required disclosures.

Standard 3.2 provides:

Subject to constitutional limitations, thetrial court may require that the prosecutingattorney be informed of and permitted toinspect and copy or photograph any reports orresults, or testimony relative thereto, ofphysical or mental examinations or of scientifictests, experiments or comparisons, or anyother reports or statements of experts whichdefense counsel intends to use at a hearingor trial.2

50

This standard was adapted from Rule 16(c) of theFederal Rules of Criminal Procedure. It wouldoperate on the premise that the defendant may berequired to disclose before trial that which he wouldusually reveal later at trial. The Committeeargued that "to the extent material or informationdoes not originate with the accused, there is noconstitutional impediment to its disclosure.sThe report conceded, however, that there is somedoubt about the constitutionality of what has beentermed the "advanced notice" theory.

These standards place no conditions on thediscovery powers as outlined. The prosecution isentitled to the information allowed it whether ornot the defendant also seeks discovery. Similarly,the defendant's right to disclosure is not condi-tioned upon his own willingness to divulge informa-tion. In this regard, the proposals are quite differ-ent from the discovery authorized by Rule 16of the Federal Rules of Criminal Procedure, orfrom that authorized by judicial decision in Cali-fornia.25

On the other hand, standard 2.1 requires of theprosecutor, subject to certain limitations, disclo-sure of the names and addresses of persons whomthe prosecuting attorney intends to call as wit-nesses, together with their relevant written orrecorded statements. The proposals also demandthat the prosecution provide statements made bythe accused or a co-defendant, the grand jurytestimony of the accused, and the relevant portionsof the testimony of witnesses whom the prosecutionintends to call. Reports of experts on physical,mental, and scientific tests; documents, photo-graphs and tangible objects which belong to the

250 Id. § 3.2.251 Id. §.3.2 (Commentary).252 See Jones v. Superior Court, 58 Cal.2d 56, 372

P.2d 919 (1962).

[Vol. 61

CRIMINAL DISCOVERY

defendant or which the prosecution intends to usein a trial or hearing; and the prior criminal recordsof witnesses may also be solicited.

Furthermore, section (b) of Standard 2.1 re-quires the prosecution to notify the defensewhether any evidence was provided by an inform-ant, if there was relevant grand jury testimonywhich has not been transcribed, and if there hasbeen any electronic surveillance of the premises ofthe accused or of conversations to which he wasparty. This subsection aids the defendant in re-solving the issue of the propriety of the prosecu-tion's evidence before trial.

An additional requirement under subsection (c)of 2.1 must be noted. The prosecution is compelledto reveal material "which tends to negate the guiltof the accused as to the offense charged or wouldtend to reduce his punishment therefore." Thatprovision covers the type of disclosure requiredunder Brady v. Maryland.20 There is an extensionof Brady here only in that 2.1(c) would requirepretrial disclosure, while the Supreme Court therewas concerned specifically with disclosure at trial.

A defendant's rights of discovery under 2.1 gobeyond those items actually in the possession ofthe prosecutor. Subsection (d) extends the disclo-sure obligation to matters in the possession of"members of his staff" or others who have partici-pated in the investigation or evaluation of the caseand who either regularly report... or have re-ported to his office." This will necessitate theadoption of procedures by which law enforcementagencies which have reported or who normallyreport to the prosecutor will inform him of allinformation which must be d.1sclosed, as well asinformation necessary for succ essful prosecution.Responsibility for creating and maintaining suchprocedures rests with the prosecuting attorney.

Disclosures mentioned under Standard 2.1 aremandatory and do not depend upon a requestfrom the defense. Standard 2.3, however, listsadditional disclosures which are mandatory uponthe prosecutor only in response to a specific requestby the defendant or his attorney. Informationregarding searches and seizures, the acquisition ofspecified statements from the accused, and therelationship of specified persons to the prosecutingauthority fall within that category.

The Advisory Committee contemplated thatmandatory disclosures by the prosecution under2.1 and 2.3 would normally require.no judicial ac-

2- 373 U.S. 83 (1963)..

tion. Knowing what he is required to release to thedefendant's attorney, the prosecutor would berequired to reveal the information as a matter ofcourse. Should the prosecutor object to the releaseof any matter, he can seek a protective order underStandard 4.4.

In accordance with Standard 2.2(a), the prosecu-tion must make mandatory disclosures as soon aspracticable after the filing of charges. Subsection(b) of that provision permits performance of theobligation in any manner mutually agreeable withthe defense counsel. With those matters that mustbe disclosed independent of a defense request,the information is to be made available for inspec-tion, copying, or testing at reasonable times uponnotice to the defense attorney.

A radical departure from traditional concepts ofcriminal discovery is found in section 2.5. It pro-vides that the court in its discretion may demandthe disclosure of information which is not otherwisecovered if the defendant can show that the informa-tion sought is material to the preparation of hisdefense. This discretionary authority accorded thetrial court is broad enough to permit discovery ofevidence in the possession of persons who are notemployed by or in contact with the prosecutor'soffice. 2

5 Where such evidence is involved, the courtmay permit the taking of depositions.25

The Advisory Committee drew heavily on Rule16(b) of the Federal Rules of Criminal Procedurein imposing the requirement in 2.5 that the defensemake a showing of materiality. The section mayprove unworkable in light of that requirement. Thedefendant will often have difficulty establishingmateriality in the absence of a general depositionp'ower.15

These standards represent far reaching proposalsin the area of criminal discovery. They have beenput to a practical test in a two year experiment bythe United States District Court for the SouthernDistrict of California. The experiment' tends toshow the viability of the Standards:

Although the collection of conclusive data hasnot been possible, in the opinion of the judgesand of many lawyers involved, the new proce-dures and the expanded discovery appear to beworking well and fulfilling the objectivestought: increasing the efficiency of the judges214 ABA STANqDARDS, § 2.5 (Commentary).256 Id.256 Rezneck, The New Federal Rides of Critnina

Procedure, 54 GEo. L. J. 1276 (1966).

1970]

JERRY E. NORTON

and lawyers, speeding up the process, improv-ing the performance of defense counsel, elimi-nating a substantial amount of paperwork,making trials shorter and more to the point,and increasing the number of guilty pleas-all apparently without any sacrifice of theinterests of the government or the defendant.It is too early, perhaps, to evaluate the impactof these procedures upon the finality of con-

victions, but it is believed that all constitu-tional issues which can be anticipated havebeen considered. 2 7

The full implementation of these or similarproposals would seem to be a feasible means forprotecting the innocent defendant from a wrongfulconviction.

2n ABA STA RDs, Part III (Introduction).

[Vol. 61