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Teamwork Makes the Dream Work: building a legislative team

I. Discovery in Virginia

a. Current state of discovery: Trial by Ambush

i. Felonies pending preliminary hearing: Supreme Court Rule 7C:5

1. Entitled to:

a. Substance of oral statements of the accused to law

enforcement;

b. Copies of written or recorded statements made by the

accused; and

c. The criminal record of the accused.

2. So long as the above items are:

a. “Relevant,”

b. “known or become known to the prosecuting attorney”

and

c. To be offered in evidence against the accused.

3. Failure to comply with a timely motion for discovery—remedies:

a. Order the prosecutor to permit inspection of the material

not previously disclosed and

b. Court may grant such continuance to the accused as it

deems appropriate.

ii. Felonies pending trial: Supreme Court Rule 3A:11

1. Accused entitled to:

a. Substance of relevant oral statements of the accused to

law enforcement

b. Written or recorded statements of the accused the

existence of which is known to the prosecutor

c. Written scientific reports that are known by the

prosecutor to be within the possession, custody or control

of the Commonwealth;

d. Written reports of physical or mental examination of the

accused or the alleged victim that are known by the

prosecutor to be within the possession, custody or control

of the Commonwealth; and

e. The opportunity to inspect and copy physical evidence

within the possession, custody or control of the

Commonwealth.

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2. Expressly exempted from production are police reports and

witness statements;

3. Includes reciprocal discovery obligations by defense for:

a. Notice of alibi

b. Notice of insanity

c. Copies of scientific reports s/he intends to offer into

evidence at trial or sentencing

4. Protective Order:

a. May be issued by court “upon a sufficient showing” to

deny, restrict or make such other orders regarding

discovery;

b. Prosecutor can make showing to withhold discovery by

written statement to be reviewed by the court in camera

5. Failure to comply remedies:

a. Court shall order disclosure of information; and

b. Court “may grant such other relief as it deems

appropriate.”

iii. What is missing:

1. Police reports

2. Witness statements

3. Co-defendant statements

4. Witness lists/information

5. Expert information if there is no written report

b. Not practiced uniformly across the state. Different jurisdictions had different

practices as to:

i. How much information you were given (some provided more than the

Rules required while others strictly followed the Rules)

ii. The form in which you received it (some made copies, some allowed the

attorney to read and take notes, etc.)

c. Virginia is among the bottom 10 states in discovery and arguably among the

bottom two in terms of degree of restrictions on information.

i. “Closed” States vs. “Open” States (Jenia I. Turner & Allison D. Redlich,

Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical

Comparison, 73 Wash & Lee L. Rev. 285, 299-301 (2016))

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ii. Closed states (10)

1. Jurisdictions which do not mandate pretrial disclosure of witness

names, witness statements or police reports and which usually tie

disclosure to a trial date, thus failing to ensure disclosure prior to

a guilty plea.

2. Of all closed states, Virginia is among the most restrictive:

Ex: Utah includes disclosure by the prosecution of: Relevant

written/recorded statements of co-defendants and “any other

item of evidence which the court determines on good cause

shown should be made available to the defendant to adequately

prepare his defense.” Disclosure must be made before an

accused is required to plead. Utah R. Crim. Pro. 16

3. Kansas: includes providing the names of witnesses to any oral

confession made by the accused, summaries (or reports) of all

experts, and provides discovery is to occur within 21days of

arraignment. K.S.A. 22-3212 (last amendment 2013)

4. Other “closed” states: Alabama, Delaware, New York, South

Carolina, South Dakota, Tennessee and Wyoming.

iii. Open States (17):

1. Defined as states which generally require disclosure sometime

after arraignment either the entire file (minus work product) or a

broad set of evidentiary materials which encompass nearly the

entire file (minus work product). All open states presumptively

require the disclosure of witness names, witness statements, and

police reports.

2. Arizona, California, Georgia, Hawaii, Idaho, Maine, Maryland,

Massachusetts, Michigan, Minnesota, New Hampshire, New

Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Texas

3. The most recent and sweeping statutory changes: North Carolina

and Texas.

North Carolina:

http://lawprofessors.typepad.com/evidenceprof/2011/06/back-

in-2004-north-carolina-governor-mike-easley-signed-a-bill-into-

law-that-required-prosecutors-to-share-their-files.html

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Texas: http://www.tdcaa.com/journal/dawn-new-discovery-rules

iv. Intermediate States (23 states):

1. Operate in a middle ground between closed and open. Most

require disclosure of either witness names, witness statements or

police reports (or some combination of all three).

2. Alaska, Arkansas, Colorado, Connecticut, Florida, Illinois, Indiana,

Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana,

Nebraska, Nevada, North Dakota, Oregon, Pennsylvania, Rhode

Island, Vermont, Washington, West Virginia and Wisconsin

v. None of the states have moved from a more open category to a less open

category (i.e. no “open” state has tightened it discovery protocol to trend

more towards “intermediate” and no “intermediate” state has tightened

its discovery protocols to trend towards a more “closed” state). Turner &

Redlich, supra

II. Efforts for reform:

a. Virginia State Bar Indigent Defense Task Force report

i. Tasked with studying steps to be taken to improve indigent defense

ii. Recommended expanding discovery

iii. Prosecutors refused to participate in formulating discovery

recommendations.

b. Virginia Supreme Court Special Committee

i. Representative of entire criminal justice system. Twenty-seven members

including: prosecutors, defense attorneys, judges, law enforcement,

forensic lab, bar counsel, victim-witness advocates, court clerks, and

legislators.

ii. Recommended reforms (with one dissenting voice from the State Police,

and no participation by the legislative members):

1. Providing police reports

2. Exchanging witness lists

3. Exchanging expert information

iii. Public Comment period:

1. Overall favored reform

2. Strong, organized and vocal dissent from the prosecutor’s

organization (even though several prosecutors in their individual

capacity were part of the work group and recommended the

revisions)

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iv. Supreme Court rejected all recommendations without comment or

explanation.

c. Virginia State Bar Criminal Discovery Reform Task Force

i. Several of the same participants as the other groups from the defense

group but new prosecutors

ii. Begun with the directive from its Chair that they will not consider police

reports

iii. Work is ongoing

III. Time for a new approach: Building a Team

a. From the top down

i. Legislation

1. Finding a patron

2. Crafting a Bill

3. Lobbying the legislators

4. Mobilizing support: The power of showing up

ii. Forming a coalition of professionals/organizations

1. Identifying key stakeholders

a. State Affiliate

b. State-based Organizations (ex: ACLU of VA, Virginia New

Majority)

c. Universities/law schools

d. Innocence Project

e. National Associations (ex: ABA)

f. Specialty bars (ex: Virginia Trial Lawyers Attorneys Assoc.)

g. Conservative elements (ex: Koch, American Conservative

Union Foundation)

h. Attorneys (Firms, institutional defenders, private bar)

2. Develop a plan

a. Goals

b. Action items

c. Timeline

3. Gathering data

a. Electronic survey of discovery practices developed (survey

and cover email samples in materials)

b. Survey sent to the head prosecutor for each county in the

state as well as the defense bar (retained and appointed);

c. Why include prosecutors in this effort?

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d. Response rate: 120 elected Commonwealth’s Attorneys in

Virginia, 10 responded to survey; defense responses from

40 different jurisdictions

4. Utilizing national resources

a. Example: NACDL’s Discovery Efforts:

www.nacdl.org/discoveryreform

iii. Working without systemic litigation options

1. Harness the power of institutional defenders

a. Building attorney capacity to push the boundaries of

discovery in individual cases: Virginia Indigent Defense

Commission Discovery Team.

b. Creating model pleadings to be used by attorneys with an

eye towards challenging weaknesses in the existing case

law: Due Process challenge based on the “evolving

standards”

c. Coordinating action to try to maximize effectiveness of

challenges made at the local level

2. Gathering data: using the Indigent Defense Commission to get

information on the actual practices in jurisdictions

3. Mobilize and engage the local affiliate

VACDL Website:

b. From the bottom up: Grassroots Advocacy

VIRGINIA FAIR TRIAL COALITION:

We support the efforts to reform discovery

rules in Virginia to ensure just and fair trials for

all accused of criminal offenses. If you'd also

like to support this initiative, click on the link

below:

Virginia Fair Trial Coalition Support

Agreement.pdf

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i. Legislation

1. Lobbying the legislators

2. Mobilizing support

a. Create templates for statements of community members

i. Email

ii. Telephone call

iii. Letter

b. Educate community members on the power they have.

c. Action Alerts (sample action alert for Virginia included in

materials)

ii. Forming a coalition of individuals

1. Taking the message to the community

a. Public Forums

Ex: On December 6, 2016, NACDL (with the Charles Koch

Institute) hosted an event titled "A Conversation on

Criminal Justice in the Commonwealth" in Richmond. The

event featured three panel discussions: Criminal Justice

Reform in the Commonwealth: Navigating a Path

Forward, Discovery Reform: A Necessary Demand for

Justice?, and Identifying Opportunities for Successful Re-

Entry.

b. Resource Information Help for the Disadvantage (RIHD)

Mobile Justice Tour: utilizing an existing criminal justice

reform platform, discovery reform was integrated into

their programming, which is geared towards voter

registration, rights restoration, and support of families of

those currently incarcerated.

c. Discovery Education Events: targeting jurisdictions in

which key legislators are, community events are hosted to

educate the voters in that jurisdiction about the issue.

Ex: NACDL is hosted Discovery Reform: An Advocacy

Briefing to Engage the Community in

Virginia on Saturday, February 4, 2017, 11:00 a.m. – 1:00

p.m., at Gethsemane Community Fellowship Baptist

Church, 1317 E. Brambleton Avenue, Norfolk, VA 23504.

2. Empowering individuals

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a. Provide Talking Points document to help community both

understand the issues and feel more confident in

discussing them with others/legislators (sample talking

points for Virginia discovery reform included in materials)

iii. Find messages that resonate:

1. Do not need to have a one-size-fits-all message

a. Wrongful convictions:

i. Had several recent, significant examples of

wrongful convictions in which significant defense

information was contained in police reports and

witness statements which were not disclosed and

not required to be disclosed.

David Boyce (2013) – overview

o Prosecutorial and police misconduct as

well as faulty forensic science were

contributing causes to wrongful

conviction – crucial piece of evidence in

Boyce’s favor wasn’t disclosed to his

trial defense attorney (polaroid

photograph)

o No clear evidence that prosecutors

were the ones withholding the photo –

no system in place to determine what

files they had received from the police

Keith Allen Harward (2016) – overview

o Prosecutorial and police misconduct as

well as faulty forensic science were

contributing causes to wrongful

conviction – crucial piece of evidence in

Harward’s favor was not reported in the

serologist’s testimony or in his

certificate of analysis used at trial.

o Some of the evidence in the case should

have been provided even under the

current law – culture in VA one of

secrecy and not openness so that Brady

can only be discovered by luck

b. Unequal information given across the state:

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i. Based upon survey data could establish that how

much information was driven by: What jurisdiction

you were in, which prosecutor was assigned the

case, and sometimes even who was the defense

attorney.

ii. The message of this type of unfairness resonated

with many conservative allies and many in the

community.

c. Wasted resources/financial cost of limited discovery:

i. Develop data to show costs of current system

1. Time spent in litigating discovery issues

a. Attorney time

b. Court time

2. Trial delays because of last minute

disclosure/discovery of information

3. Time spent copying/reviewing discovery

4. Motions to re-open/reconsider based on

later discovered information

5. Defenders: collect data on time specifically

devoted to discovery (motions, review,

litigating, etc.)

6. Prosecutors: collect data on time

specifically devoted to discovery (motions,

review of materials, redactions, litigation,

etc.)

ii. Develop data to show costs if change system

1. What tools may be available to help

minimize the time expended in redacting

discovery;

2. Look to other states who have implemented

change for indications of budget

increases/decreases in law enforcement or

prosecution costs associated with discovery

expansion.

iii. System costs of discovery:

1. Time between arrest and case resolution in

jurisdictions with open/closed discovery

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2. Rate of pleas in jurisdictions with

open/closed discovery

3. Rate of conviction in jurisdictions with

open/closed discovery

2. Sample of using varied messaging to educate the public-- Washington Post article following the Supreme Court’s decision to refuse to follow Discovery Task Force recommendations: Excerpts: “The criminal justice system in Virginia appeared to be on the verge of radical change, at last. In a state where defendants are not entitled to the police reports in their case, the witness statements against them or even a witness list, a prominent committee issued a detailed report late last year proposing to carefully change all that, and more. ‘Where trial by ambush has been the norm,’ committee chair and retired Loudoun Circuit Court Judge Thomas D. Horne wrote, ‘there is now clarity and transparency.’” “Virginia’s prosecutors officially opposed the rule changes, both for the added administrative duties and for the possible impact on victims and witnesses, although many said they already give defense lawyers far more than the current rules require.” “Justice is different in one jurisdiction than the next,” “Justice is fairer and more accurate,” University of Richmond law professor John Douglass said, “when both parties are better informed before trial.” A member of the special committee, he said “there was a pretty broad consensus that Virginia’s rules of discovery were generally more restrictive than most rules in most other states.” www.washingtonpost.com/local/public-safety/va-decides-not-to-change-rules-that-withhold-documents-from-defense/2015/12/12/6f76d982-9dc5-11e5-bce4-708fe33e3288_story.html?utm_term=.a944b2468bc5

3. Find what messages resonate with what audiences

4. Empower your community to know more than one message

IV. Lessons Learned(ing)

a. Be prepared, you never know when you will get an opportunity to act.

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b. Help individuals (whether professionals or community members) feel

empowered:

i. Develop 1-2 page take aways:

1. Talking points

2. Myth Busters – be prepared to combat misinformation

3. Include data and charts

4. Make it visually engaging/less intimidating

ii. Understand the value of their actions

c. Utilize social media

d. Continue to build legislative relationships

e. Start early when building membership in coalitions

f. Other Resources

i. Other State Discovery Reform Efforts - Ex: New York State: Report

https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=54572

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Sample Due Process Challenge for Discovery Reform:

ii. Due Process Challenges

1. Due Process Clause: No state shall “deprive any person of life,

liberty or property without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.”

14th Amend. U.S. Constitution

2. “[T]he Due Process Clause has little to say regarding the amount

of discovery which the parties must be afforded.” Wardius v.

Oregon, 412 US 470, 474 (1973)

3. Procedural Due Process: protects individuals from arbitrary

government action which impacts a fundamental right or

privilege. Goldberg v. Kelly, 397 U.S. 254 (1970)

a. Government action violates Due Process when it

“transgresses any recognized principle of fundamental

fairness in operation” Medina v. California, 505 U.S. 437,

446 (1992) or is “arbitrary or conscious shocking.” Collins

v. Harker Heights, 503 U.S. 115, 128 (1992)

b. Right to evidence and information favorable to an accused

which tends to mitigate guilt or punishment are grounded

in the right to Due Process. Brady

c. The concept that there is no constitutional right to

discovery arose from Wardius v. Oregon

i. Wardius involved a due process challenge to a

state law that compelled an accused to provide

notice of an alibi defense in the absence of a rule

for reciprocal discovery (the Court had previously

upheld such a requirement when there was

reciprocal discovery. Williams v. FL, 399 US 78

(1970))

ii. In overturning Wardius’ conviction the Supreme

Court examined the current trend in other states

regarding discovery and saw the benefits of such

by noting “the ends of justice will best be served by

a system of liberal discovery which gives both

parties the maximum possible amount of

information with which to prepare their cases and

thereby reduces the possibility of surprise at trial.”

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Wardius at 473; referring also to: Brennan, The

Criminal Prosecution: Sporting Event or Quest for

Truth? 1963 Wash. U. L.Q. 279(a law review article

by Justice Brennan) and the ABA Project on

Standards for Criminal Justice, Discovery and

Procedures before Trial (1970)

iii. Wardius provided that “nothing in the Due Process

Clause precludes states from experimenting with

systems of broad discovery designed to achieve

these goals” as trial is not a “game of poker” in

which the sides are entitled to conceal their cards

until they are payed. Wardius at 473

iv. Although the Court did not find the Due Process

Clause mandated discovery, it did make clear that

Due Process was offended when there was an

imbalance between an accused and his accuser.

“The state may not insist that trials be run as a

‘search for the truth’ so far as defense witnesses

are concerned, while maintaining ‘poker game’

secrecy for its own witnesses. It is fundamentally

unfair to require a defendant divulge the details

of his own case while at the same time subjecting

him to the hazard of surprise concerning

refutation of the very pieces of evidence which he

disclosed to the State.” Wardius at 476

d. Trial courts are responsible for assuring an accused has

meaningful access to the basic tools of an adequate

defense. Britt v. North Carolina, 404 US 226, 227 (1971)

i. “When a State brings its judicial power to bear on

an indigent defendant in a criminal proceeding, it

must take steps to assure that the defendant has a

fair opportunity to present his defense. This

elemental principle, grounded in significant part on

the Fourteenth Amendment’s due process

guarantee of fundamental fairness, derives from

the belief that justice cannot be equal where,

simply as a result of his poverty a defendant is

denied the opportunity to participate meaningfully

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in the judicial proceeding in which his liberty is at

stake.” Ake v. Oklahoma, 470 US 68, 76 (1985)

ii. “mere access to the courthouse doors does not by

itself assure a proper functioning of the adversary

process.” Id.

iii. Three factors to consider in whether the state has

to provide a particular resource to an accused:

1. The private interest that will be affected by

the State’s action;

2. The government interest that will be

affected if the resource is provided; and

3. The probable value of the additional

procedural safeguard or resource that is

sought and the risk of erroneous

deprivation of the affected interest if the

safeguard is not provided. Id.

iv. The 3 factor Ake test mitigates in favor of providing

additional information to the accused.

1. The Court has previously recognized the

“almost uniquely compelling” private

interest an accused has in his life and

liberty.

2. The Court has recognized that the State’s

interest in prevailing at trial must

necessarily be tempered by its interest in

fair and accurate adjudication of criminal

cases, thus the State cannot legitimately

assert an interest in maintaining a strategic

advantage over the defense when doing so

casts a shadow over the accuracy of the

verdict.

3. The probable value/risk assessment

supports a trend towards increasing

discovery.

4. Evolving Standards/Practices

a. The third Ake factor allows and in fact encourages the

consideration of “evolving practices” Id.

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i. In concluding an indigent accused was entitled to a

psychiatrist, the Court noted the evolving and key

role psychiatry has come to play in criminal

proceedings including the frequency with which

courts were providing the resource;

ii. The Court considered the degree to which there

were differing interpretations of mental illness and

its role in a case and because of those disputes the

accused needed his own expert to that both sides

could present their views/evidence thereby

allowing the fact-finder to make an accurate

determination on an issue.

iii. There was, overall, an “evolving practice” of using

such experts,

b. The “evolving practices” of the times can be used to assess

what process is due in the current climate. Id.

i. “’Liberty’ and ‘property’ are broad and majestic

terms. They are among the Great [constitutional]

concepts . . . purposely left to gather meaning from

experience. . . . They relate to the whole domain of

social and economic fact, and the statesmen who

founded this Nation knew too well that only a

stagnant society remains unchanged.” Board of

Regents v. Roth, 408 US 564 (1972)

ii. Use of “evolving standards” as applied in the Eighth

Amendment context in Atkins v. Virginia, 536 US

304 (2002), Roper v. Simmons, 543 US 551 (2003),

Graham v. Florida, 560 US 48 (2010);

iii. “Evolving standards” used to address the degree of

contacts a business must have with a state for the

state court to have jurisdiction (which is a due

process evaluation) McGee v. International Life Ins.

Co., 355 U.S. 220 (1957)

iv. The Supreme Court in Padilla used an “evolving

standard” view noting the change in the role of

immigration consequences made it imperative to

now advise clients of immigration consequences of

their pleas. “The landscape of federal immigration

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law has changed dramatically over the last 90

years. While once there was only a narrow class of

deportable offenses and judges wielded broad

discretionary authority to prevent deportation,

immigration reforms over time have expanded the

class of deportable offenses and limited the

authority of judges to alleviate the harsh

consequences of deportation.” And “These changes

to our immigration law have dramatically raised

the stakes of a noncitizen's criminal conviction. The

importance of accurate legal advice for noncitizens

accused of crimes has never been more important.

These changes confirm our view that, as a matter

of federal law, deportation is an integral part--

indeed, sometimes the most important part --of the

penalty that may be imposed on noncitizen

defendants who plead guilty to specified crimes.”

Padilla 559 US 356, 360-61 (2010)

v. See also: Lawrence v. Texas, 539 SU 558, 571-573

(2003), United States v. Virginia, 518 US 515, 532-

24 (1996), Planned Parenthood of Southeastern PA

v. Casey, 505 US 833 (1992)

c. The “evolving trend” in discovery has been towards

increased disclosure of information.

i. “Closed” States vs. “Open” States (Jenia I. Turner &

Allison D. Redlich, Two Models of Pre-Plea

Discovery in Criminal Cases: An Empirical

Comparison, 73 Wash & Lee L. Rev. 285, 299-301

(2016))

1. Closed states (10)

a. Defined as jurisdictions which do not

mandate pretrial disclosure of

witness names, witness statements

or police reports and which usually

tie disclosure to a trial date, thus

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failing to ensure disclosure prior to a

guilty plea.

b. Of all closed states, Virginia is

among the most restrictive:

i. Ex: Utah includes disclosure

by the prosecution of:

Relevant written/recorded

statements of co-defendants

and “any other item of

evidence which the court

determines on good cause

shown should be made

available to the defendant to

adequately prepare his

defense.” Disclosure must

be made before an accused

is required to plead. Utah R.

Crim. Pro. 16

ii. Kansas: includes providing

the names of witnesses to

any oral confession made by

the accused, summaries (or

reports) of all experts, and

provides discovery is to occur

within 21days of

arraignment. K.S.A. 22-3212

(last amendment 2013)

c. Other “closed” states: Alabama,

Delaware, New York, South Carolina,

South Dakota, Tennessee and

Wyoming.

2. Open States (17):

a. Defined as states which generally

require disclosure sometime after

arraignment either the entire file

(minus work product) or a broad set

of evidentiary materials which

encompass nearly the entire file

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(minus work product). All open

states presumptively require the

disclosure of witness names, witness

statements, and police reports.

b. Arizona, California, Georgia, Hawaii,

Idaho, Maine, Maryland,

Massachusetts, Michigan,

Minnesota, New Hampshire, New

Jersey, New Mexico, North Carolina,

Ohio, Oklahoma, Texas

c. The most recent and sweeping

statutory changes: North Carolina

and Texas

i. http://nccriminallaw.sog.unc

.edu/rare-opinion-criminal-

discovery-north-carolina/

ii. http://lawprofessors.typepa

d.com/evidenceprof/2011/0

6/back-in-2004-north-

carolina-governor-mike-

easley-signed-a-bill-into-law-

that-required-prosecutors-

to-share-their-files.html

iii. http://www.voiceforthedefe

nseonline.com/print/1797

iv. http://www.tdcaa.com/journ

al/dawn-new-discovery-rules

3. Intermediate States (23 states):

a. Operate in a middle ground

between closed and open. Most

require disclosure of either witness

names, witness statements or police

reports (or some combination of all

three)

b. Alaska, Arkansas, Colorado,

Connecticut, Florida, Illinois, Indiana,

Iowa, Kentucky, Louisiana,

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Mississippi, Missouri, Montana,

Nebraska, Nevada, North Dakota,

Oregon, Pennsylvania, Rhode Island,

Vermont, Washington, West Virginia

and Wisconsin

4. See also: Rossie Alston, Brady v. Maryland

and Prosecutorial Disclosures: A Fifty State

Survey, https://acluva.org/wp-

content/uploads/2015/05/150526-Criminal-

Discover-Judge-Alston-article.pdf

5. None of the states have moved from a

more open category to a less open category

(i.e. no “open” state has tightened it

discovery protocol to trend more towards

“intermediate” and no “intermediate” state

has tightened its discovery protocols to

trend towards a more “closed” state.)

Turner & Redlich, supra

d. Using a case-by-case approach to seeking an expansion of

discovery, in cases in which the defense is required to

divulge information to request funds for experts, this

language may serve as a basis to compel reciprocal

information from the Commonwealth (or in the

alternative, the court’s adoption of a means by which an

accused can make an ex parte showing of need), likening it

to the unbalanced reciprocal discovery obligations in

Oregon’s alibi notice in Wardius.

“[W]e do hold that in the absence of a strong

showing of state interests to the contrary, discovery

must be a two-way street. The State may not insist

that trials be run as a "search for truth" so far as

defense witnesses are concerned, while

maintaining "poker game" secrecy for its own

witnesses. It is fundamentally unfair to require a

defendant to divulge the details of his own case

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while at the same time subjecting him to the

hazard of surprise concerning refutation of the very

pieces of evidence which he disclosed to the State.”

e. Drawon the Supreme Court’s language in Williams v. FL

regarding the need for reciprocal discovery in alibi notice

cases because of the easy with an individual may forget or

fabricate relevant information, to compel disclosure of

prior statements of a witness/eyewitness to allow the

defense to prepare ahead of time to challenge a police

officer or lay witness who may forget or fabricate

information in court (most reciprocal alibi notice

provisions have a timeliness aspect to them, requiring

disclosure in advance of trial to allow for prosecution

investigation and preparation—the same holds equally

true for the need for defense counsel to investigate and

prepare his defense by receiving timely and early

disclosure of relevant information) Williams at 82

iii. Sixth Amendment Challenges:

1. Right to a Fair Trial which encompasses:

a. the right to be informed of the nature of the accusation (In

Re Oliver, 333 US 257 (1948), Russell v. US, 369 US 749

(1962)

b. to confront and cross-examine the witnesses against the

accused (Pointer v. Texas, 380 US 400 (1965), Crawford v.

Washington, 541 US 36 (2004))

c. to compel the production of defense witnesses and

evidence (Washington v. Texas, 388 US 14 (1967))

d. the right to the effective assistance of counsel (Strickland

v. Washington, 466 US 668 (1984), Argersinger v.

Hamilton, 407 US 25 (1972))

2. Overall, while the Sixth Amendment rights appear on their face to

encompass many of the key reasons we need expanded discovery

–i.e. the need to MEANINGFULLY access these rights by having

more information—at this juncture it appears to provide a less

fruitful avenue for potential discovery based litigation than the

Due Process Clause

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iv. Equal Protection Challenges

1. Skinner v. Oklahoma, 316 U.S. 535 (1942)

a. “When the law lays an unequal hand on those who have

committed intrinsically the same quality of offense and

sterilizes one and not the other, it has made as an

invidious a discrimination as if it had selected a particular

race or nationality for oppressive treatment.”

2. When the co-defendant’s lawyer is receiving more discovery than

you are this seems to be an unequal application of the discovery

rules.

3. Argue that fundamental rights are implicated, 5th Amendment

Due Process, 6th Amendment Right to Counsel. If a fundamental

right then strict scrutiny applies.

4. Even if only a rational basis test is applied, the state would be

hard pressed to argue that there is a rational basis to give the

information to one lawyer and not the other.

g. Empowering the Court: Using the Court’s Inherent Authority

i. Federal courts recognize the inherent authority of trial courts to expand

discovery.

1. The federal courts have recognized that a trial court has the

inherent authority to expand discovery beyond the Federal Rules

of Criminal Procedure so long as such expansion does not

circumvent or conflict with the Rules. See e.g.: U.S. v. Grace, 526

F.3d 499 (9th Cir. 2008), U.S. v. Kloepper, 725 F.Supp. 638 (Mass.

1989)

2. These courts have relied upon the inherent authority of a trial

court to manage its cases to ensure the fair and effective

administration of justice.

3. Fourth Circuit: The discovery provisions of the Federal Rules of

Criminal Procedure “are not exclusive and do not supplant a

district court’s inherent authority to order discovery outside the

rules.” U.S. v. Beckford, 962 F.Supp. 748 (1997)