The Defense’s Duty to Turn Over Discovery

The prosecution usually has to disclose more information than does the defense, but that doesn’t mean defendants can sit on their hands.

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Most of the law regarding discovery in criminal cases focuses on what the prosecution must disclose to the defense. After all, the prosecution is the side with all the information and resources. But, at least in some sense, discovery is a two-way street: Defendants have to turn over certain information to the prosecution.

Mandatory Disclosure

Defendants have argued that forcing them to turn over evidence to the prosecution in advance of trial violates their Fifth Amendment right to silence and the privilege against self-incrimination. But courts have upheld so-called reciprocal discovery laws. (It’s worth noting that in many cases, specifically those that settle well before trial, the defense doesn’t end up turning anything over to the prosecution.)

What Kind of Information?

Each jurisdiction has its own reciprocal discovery rules. Here are partial examples of the kinds of information defendants routinely must disclose:

  • Federal courts. Upon demand by the prosecutor, the defense must give written notice of intent to offer any alibi defense and reveal the names, addresses, and telephone numbers of the alibi witnesses. If a defendant refuses to comply, then the judge can prevent the defense from calling the alibi witnesses to testify at trial. (Federal Rule of Criminal Procedure 12.1.) The U.S. Supreme Court upheld Florida’s version of this rule in Williams v. Florida. (399 U.S. 78 (1970).)
  • Vermont. Upon request by prosecutors, defendants may be required to submit to reasonable physical or medical inspections of their bodies, permit the taking of samples such as handwriting, hair, and blood, and, if mental illness is in issue, submit to psychiatric examination. (Vermont Rule of Criminal Procedure 16.1(a)(1).)
  • California. Defendants must disclose to prosecutors:
    • the names and addresses of all people other than themselves whom they plan to call as witnesses
    • any relevant statements by any of these witnesses
    • any experts’ reports, and
    • any “real” evidence (tangible objects) that the defense intends to offer into evidence. (California Penal Code § 1054.3.)

Changing Times

It used to be that defense attorneys could hide the ball, then spring evidence and witnesses on the prosecution at trial. The theory was that the government had all the power and the defense should be able to employ the scant advantages it had. But that changed in relatively recent years. If anything, legislatures are likely to enact more discovery requirements for the defense—and judges are likely to uphold them.

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