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Prosecutors should overdisclose rather than underdisclose evidence

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Prosecutors should overdisclose rather than underdisclose evidence. That is the best way for them to assure compliance with the governing discovery rules in their jurisdiction, and with Brady v. Maryland, 373 U.S. 83 (1963), requiring prosecutors to disclose material exculpatory evidence upon the request of the defense. Such disclosure also serves justice because prosecutors should not be agents of secret justice/injustice.

Overdisclosure of discovery by prosecutors can also encourage settlement of cases by showing defendants the extent of damaging evidence that prosecutors have against them (at least in cases where the evidence is strong for the prosecution), and can foster smoother trials that minimize discovery disputes, mid-trial, that irritate the judge.

Such overdisclosure by prosecutors can also prove to be time efficient, by simply showing or providing the defense the prosecutor’s file, or a copy thereof, rather than spending time redacting the prosecutor’s file.

Nevertheless, I continue to experience slews of prosecutors who are reluctant to produce to me even a shred of evidence more than they think the law obligates them to disclose. What to do, then, with prosecutors who do not understand the extent of their discovery disclosure obligations who consequently run afoul of those obligations?

I continue hearing numerous Virginia prosecutors assert that police videotapes of alleged criminal incidents are not discoverable, even though such tapes will repeatedly include exculpatory evidence under Brady, including inevitable exculpatory evidence in videos showing field sobriety testing in drunk driving cases, starting with the very act of not repeatedly falling down being exculpatory against allegations of drunkenness.

Prosecutors — I know my blog readership includes you — please spread the word among your fellow prosecutors that it is just not worth the risk of violating discovery laws to do anything other than overdisclosing rather than underdisclosing evidence to the defense.

Unfortunately, in Virginia, the discovery rules are so limited and favorable to the prosecution as to incline many prosecutors not to overdisclose discovery. Virginia law does not require disclosure of the statements of opposing witnesses, also known as Jencks material. Investigating police officers’ material generally cannot be subpoenaed by the defense, under the theory that such police are agents of the prosecution.

Nothing says that the current limited discovery rules in Virginia must stay that way. However, any efforts to reverse the unjustly limited discovery laws in Virginia need to be ready for a refrain from many in the legislature asking why generations (at the very least) of discovery rules need to be changed when "everything is working just fine." However, if everything is working just fine, it is only working in that way for prosecutors, and not for criminal defendants nor for justice.