“Nasty Little Surprises” and “discovery”

Back in July of 2008, I posted about one of Mark Bennett’s posts on “NSL’s” – nasty little surprises.  A NSL is essentially exculpatory evidence which either the prosecution/State has not provided, or which they are completely unaware of.  The point was, since the deck is stacked against you to begin with, why disclose NSL’s which you discover in the course of investigating and preparing for your criminal jury trial?  After all, the chances of us winning to begin with are slim, and much of that is due to the way the system is set up.  If we let the prosecutor on to our theory of the case before our opening argument, he or she will inevitably do everything possible to shoot it down – either by offering deals to slum rats to testify to something different than what they have previously said, or by prepping the investigating officer to pontificating on the subject in such a way as to steal our thunder.  Of course, in a perfect world you should share exculpatory evidence with the prosecution/State so they could dismiss the case.  But that’s not usually how prosecutors work unfortunately.  They want a conviction, they want to win.  Many would rather diffuse your NSL and move ahead with prosecution.

The only problem is that in West Virginia, the defense is obligated to provide “discovery” to the State/prosecutor.

First of all, someone please tell me how that doesn’t violate the 5th Amendment of the US Constitution?  As defense attorney, I represent the defendant obviously.  In the United States, defendants in criminal trials have no obligation to ask even a single question, call even a single witness, or introduce even a single item of evidence.  They have the 5th Amendment right to remain silent.  But the state rules say that if I do call a witness or present evidence, I have to provide disclosure of such before the trial – sometimes by a particular date.

As if the system didn’t make it easy enough for prosecutors already….  If you hear prosecutors talk about trying cases, they make it sound as if they have such a difficult task.  They have to come up with such an enormous amount of evidence, and they have to prove so much….  In reality, being a prosecutor is a piece of cake.  You are set up to win.  In fact, to actually lose a case due to an acquittal in West Virginia, all 12 jurors have to unanimously vote “not guilty.”  With that low of a bar, it’s pretty hard not to win.  And yet, the State has mandated that we cannot ambush prosecutors with some types of NSL’s.

The practice of prosecution is basically preparing for, and conducting, direct examinations.  They’re their witnesses, they’re mostly cops or victims, or people with plea deals that come with a noose around their neck, held by the prosecutor, which require them to do the prosecutor’s bidding, or else.  And they prepare the witnesses and ask open ended questions and check off on their legal pad everything the person is supposed to say.  That’s pretty much it.  As defense attorneys, we engage in guerilla warfare with all of these witnesses.  We almost exclusively cross examine witnesses.  We have to learn, develop and master the art of cross examination.  It is much, much more difficult.  And more unpredictable.

When we call a NSL witness, we reverse the roles and put the prosecutor on defense – something they are not used to.

The “discovery” rules do not mandate that we provide all of our NSL’s to prosecutors.  We have to disclose the names and addresses of any witnesses, though generally not the substance of their testimony (as in civil cases).  Of course the prosecutor is free to have someone contact or interview the person to see what they are going to say.  Unfortunately, sometimes that consists of running criminal background checks on the person, and otherwise investigating the person as if they were a suspect in a crime.  We also have to provide copies or access to any exhibits or tangible evidence we intend on presenting.

The loophole here is in the substance of the witness testimony.  The prosecutor doesn’t necessarily have any idea what I will ask the witness on the witness stand.  He can interview the person before hand, but he may not be able to put 2 and 2 together before I do so for him/her in front of the jury.

I recently revealed some NSL’s to a prosecutor/court/jury during the course of a criminal jury trial.  The prosecutor was upset because I only revealed the identities of the witnesses the day before the trial, and he strenuously asked the judge to “suppress” my witnesses due to failure to comply with discovery rules by disclosing the witnesses well in advance of trial.

There are several problems with this:

(1) I only found these particular witnesses at the last minute, and therefore I could not have disclosed them earlier; (2) The witnesses had exculpatory evidence and law enforcement knew about them in advance, yet failed to disclose them to the defense; (3) If these witnesses had exculpatory evidence, shouldn’t the prosecutor, who’s job it is to see that “justice” is done, also be interested in that information – in finding the truth – and is it ever proper for the prosecution/State to suppress exculpatory evidence from a jury – a jury who is in the process of deciding the fate of a young man who otherwise would have a long, hopefully happy, life to live?

Of course the practical reality also is that, if the court did exclude/suppress these witnesses, it would be per se ineffective assistance of counsel and a mistrial would have to be declared.  So in reality, even if the court sympathizes with the prosecutor, the greater interest is in judicial economy, and no judge wants to declare a mistrial if it can be avoided.  Moreover, no judge wants to invite a reversal if no mistrial is declared and exculpatory evidence is suppressed due to failure of counsel to disclose or provide “discovery.”

When you really think about these things, you come to the realization that this is a scary world we live in.  There are so many damn laws, just about everything is illegal.  And prosecutors can be like dictatorial tyrants.  If they, or law enforcement, want you convicted of something, they will do it.  Only a defender of people – a defender of the constitution – may be able to save you.  And if you have to depend on the public defender or court appointed defense counsel to do this, they may not have the time/motivation/resources to conduct their own investigation and find exculpatory evidence.  The best protection from wrongful conviction is money.  Even if you have to borrow it, do so.  Hire a criminal defense attorney, the best you can afford.  Hire a private investigator.  Fight for your life.

– John H. Bryan, West Virginia Attorney

4 thoughts on ““Nasty Little Surprises” and “discovery”

    • Mark,

      I’m not aware of any WV case law on point with respect to my argument about the fifth amendment. I’ve never yet had to attempt to appeal this issue thankfully. However, I am aware of a similar case involving a friend of mine.

      During the course of a felony jury trial he attempted to call a rebuttal witness. The witness was not disclosed. After all, it was a rebuttal witness (this is my understanding of what happened anyways). The overly aggressive prosecutor (who one time promised to “remain silent on sentencing” in one of my cases and underhandedly ended up sneaking in something like, “but your honor, I would note that [insert non-silent argument for incarceration here]”) moved to exclude/suppress the rebuttal witness. The judge ended up doing so, then immediately declared a mistrial based on ineffective assistance of counsel. Then the judge sanctioned the attorney with the costs of the jury trial up to that point.

      Anyways, the attorney filed a writ of prohibition to the WV Supreme Court of Appeals (no intermediate appellate court). And they granted the writ with respect to the sanction, noting that to do this would have a “chilling effect” on the willingness of the defense bar to represent indigents. Though they did allow the state to retry the defendant.

      In a concurrence, one of the five justices, who remains on the Court, said the following, which is about the closest thing we have (that I know of) to case law on point to my concerns (and they don’t look good for my point of view):

      Nevertheless, if the record before this Court had demonstrated that defense counsel had, in fact, failed to disclose the defense’s witness list to the State as found by the trial court in its January 10, 2007, order imposing said sanction, I would have upheld the sanction. As I admonished at length in my separate opinions in Estate of Fout-Iser ex rel. Fout-Iser v. Hahn, 220 W.Va. 673, 680, 649 S.E.2d 246, 252 (2007) (Davis, C.J., dissenting), and Jenkins v. CSX Transportation, Inc., 220 W.Va. 721, 732, 649 S.E.2d 294, 305 (2007) (per curiam) (Davis, C.J., concurring), the purpose of discovery rules is to ensure the fair and orderly administration of justice, W. Va. R. Civ. P. 1, and a party’s failure to follow such rules constitutes sanctionable conduct. See generally W. Va. R. Civ. P. 37 (permitting trial courts to impose sanctions for “[f]ailure to cooperate in discovery”); McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995) (according discretion to trial courts to determine appropriateness of sanctions for discovery violations).

      As was the case with the civil matters before this Court in Fout-Iser and Jenkins, criminal proceedings, such as the case sub judice, also are governed by procedural rules to obtain “the just determination of every criminal proceeding” and to “secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.” W. Va. R.Crim. P. 2. Likewise, trial courts in criminal cases may impose sanctions for the violation of rules pertaining to discovery. See W. Va. R.Crim. P. 16(d)(2) (“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.”); Syl. pt. 5, State v. Miller, 178 W.Va. 618, 363 S.E.2d 504 (1987) (“Rule 16(d)(2) [of the West Virginia Rules of Criminal Procedure] enables a trial court to impose sanctions that may have the effect of curing a late discovery problem.”). See also Syl. pt. 1, State v. Ward, 188 W.Va. 380, 424 S.E.2d 725 (1991) (“Where a trial court is presented with a defendant’s failure to disclose the identity of witnesses in compliance with West Virginia Rule of Criminal Procedure 16, the trial court must inquire into the reasons for the defendant’s failure to comply with the discovery request. If the explanation offered indicates that the omission of the witness’ identity was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it is consistent with the purposes of the compulsory process clause of the sixth amendment to the United States Constitution and article II, section 14 of the West Virginia Constitution to preclude the witness from testifying.”).

      [This was State ex rel. Godfrey v. Rowe, 654 S.E.2d 104 (WV 2007)]

      Basically, in this concurrence, she put criminal reciprocal discovery requirements on the same level with civil discovery obligations, which is pretty scary. Again, this just seems like a Fifth Amendment violation to me. I’m sure there’s some on point cases in other states. If I had the time, or if I face this issue in the future, I would like to research this in some depth.

      – John H. Bryan

  1. I think the answer to your constitutional question is that identifying witnesses through discovery is not “testimonial” and does not implicate the 5th Amendment right against self-incrimination.

    I’d further point out that defendants are not “obligated to provide discovery in WV.” The RECIPROCAL discovery must only be provided where the defendant moves for and is granted similar discovery from the state. If you don’t want to provide discovery you don’t have to, but you must forego receiving the same classes of discovery you don’t wish to provide. Read the rule:

    Rule 16
    (b) Disclosure of evidence by the defendant. – (1) Information subject to disclosure. – (A) Documents and tangible objects. – If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the state, the defendant, on request of the state, shall permit the state to inspect and copy or photograph books, papers, documents, photographs, tangible objects or copies or portions thereof, which are within the possession, custody or control of the defendant and which the defendant intends to introduce as evidence in chief at the trial.
    (B) Reports of examinations and tests. – If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the state, the defendant, on request of the state, shall permit the state to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to that witness’ testimony.
    (C) Expert witnesses. – If the defendant requests disclosure under subdivision (a)(1)(E) of this rule and the state complies, the defendant, at the state’s request, must disclose to the state a written summary of testimony the defendant intends to use under Rules 702, 703, and 705 of the Rules of Evidence as evidence at trial. The summary must describe the opinions of the witnesses, the bases and reasons therefor, and the witnesses’ qualifications.
    (D) Defense witnesses. – If the defendant requests disclosure under subdivision (a)(1)(F) of this rule, upon compliance with such request by the state, the defendant, on the request of the state, shall furnish the state with a list of the names and addresses of the witnesses the defendant intends to call in the presentation of the case in chief. When a request for discovery of the names and addresses of witnesses has been made by the state, the defendant may be allowed to perpetuate the testimony of such witnesses in accordance with the provisions of Rule 15.

    So, you may sometimes wish to refrain from asking for something so you are not required to provide reciprocal discovery. you can do this class by class as indicated in the rule.

    Another thing to bear in mind is that if you receive something by means other than a request under Rule 16, the reciprocal discovery obligation does not exist. If you are given information in lieu of a prelim or can get something admitted at as an exhibit at a prelim or pretrial hearing there is no reciprocal obligation created. Similarly, if you get “informal discovery” during pre-indictment plea negotiations the reciprocal discovery obligation does not exist. I’d also suggest that if a prosecutor claiims he has an “open file” policy you can can request opportunity to inspect and copy the file without making a motion and have a very strong argument that you are not required to provide rciprocal discovery. Sometimes you can even talk directly to a cop who will (thinkinghe is showing you how strong his case is tell you or give you things).

    sometimes you can have your cake and eat it too, as it is not all that uncommon for you to be aware of every person a prosecutor might call as a witness and everty item of evidence he might seek to introduce without formally requesting it.

    • Thank you for the comment Sam. You sound like you have been down that road before. However, I don’t believe your constitutional explanation covers everything. For instance, the Fifth Amendment also prevents prosecutors from commenting on the defendant’s refusal to testify, which is not directly testimonial.

      Also, with many circuit judges, it is irrelevant whether you actually move for discovery. The court orders discovery at the arraignment. So arguably, that can help the defense if one were to use your argument here. Thanks.

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