Brady v. Maryland and Prosecutorial Disclosures: A Fifty State Survey 1

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1 Brady v. Maryland and Prosecutorial Disclosures: A Fifty State Survey 1 I. INTRODUCTION Society wins not only when the guilty are convicted but when criminal trials are fair; our system of administration of justice suffers when any accused is treated unfairly. 2 Echoing Justice Douglas s sentiment in Brady v. Maryland, all 50 states have authorized some form of discovery for criminal defendants despite the absence of a constitutional right to discovery in criminal trials. 3 However, states impose drastically different disclosure requirements on prosecutors. This document seeks to provide a general overview of the criminal discovery systems currently operating throughout the country. Part II of this document analyzes trends and current practices of the states from a national perspective. Part III departs from the national sphere and focuses on individual states. Each section of Part III explores an individual state s criminal discovery system. II. NATIONAL OVERVIEW Currently there exists a vast range of discovery system throughout the nation. At one extreme are systems that automatically require the prosecution to open its files and allow the defendant to examine all 1 The information in this paper is current as of April 18, Conclusions are based primarily, and often solely, on the text of the state s statute, rule, or penal code section governing criminal discovery. While best efforts were made to be through and accurate, the author acknowledges that some information in this paper may be incomplete given the often complex manner in which states rely on judicial decisions, statutes, and rules in articulating criminal procedure. This paper, rather than attempting to give a definitive overview, seeks only to demonstrate the breadth and variation of the prosecution s duty to disclose throughout the nation. All information in this paper is based off of research available in the Brady Spreadsheet. Special thanks, credit and appreciation is given to third-year George Mason University law student Mary Grob who did much of the research for this project, and my law clerks Jacob Shorter, Esq. and Sasha Ward McNickle, Esq. 2 Brady v. Maryland, 373 U.S. 83, 87 (1963). 3 Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (There is no general constitutional right to discovery in a criminal case, and Brady did not create one. ). 1

2 evidence against him. 4 At the other end of the spectrum are states that require the defendant to seek out and demonstrate a need for discovery. 5 Those states often limit the type of discoverable information, denying the defendant the ability to inspect witness statements, preliminary police reports, or other specific types of evidence before trial. 6 Discovery systems range from mandatory to discretionary and from mutual to reciprocal. Some states choose to heavily regulate the discovery process while other states stress the importance of cooperation between the defense and the prosecution. 7 An examination of all 50 states demonstrates that, while there are common characteristics among the states, there is no typical discovery system in America. Part II of this discussion provides a brief overview of common characteristics and trends among states. First, Section II A examines how states have codified the holding of Brady v. Maryland and its progeny. Section II B then provides an overview of the myriad of different disclosures authorized by the states rules and statutes. Specifically, this Section examines the contrasting approaches to specific disclosures such as defendant s criminal record and witness statements. Finally Section II C discusses the regulation of criminal discovery with a focus on privacy provision and sanctions. A. Brady Codification There exists no general constitutional right to discovery. 8 However, in Brady v. Maryland, the Supreme Court held that, upon request of the defendant, the prosecution is constitutionally required to disclose evidence 4 See N.C. General Statutes 15A-901 through 15A See ALA. R. CRIM. P See DEL. SUP. R. CRIM. P. 16(2) ( [T]his rule does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the attorney general or other state agents in connection with the investigation or prosecution of the case, or of statements by state witnesses or prospective state witnesses. ). 7 See PA. R. CRIM. P. 573(A) (requiring counsel to attempt to resolve all questions of discovery between the parties and only if a resolution cannot be reached may the party motion the court for discovery); but see WASH. SUP. CT. CRIM. R. 4.7(h) (articulating a detailed scheme for discovery regulation). 8 Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ( There is no general constitutional right to discovery in a criminal case, and Brady did not create one. ). 2

3 that is material either to guilt or punishment of the defendant. 9 The Court later extended this constitutional protection to impeachment information impacting the reliability of a witness, whose testimony may be determinative of guilt or innocence. 10 The Court further articulated that this duty to disclose is not limited to the actual knowledge of the prosecution but extends to the constructive knowledge of the prosecution and its agents. 11 The majority of states have chosen to codify the constitutional protections of the Brady doctrine in their state discovery rules. However, an examination of state laws demonstrates variation in the language and scope of those protections. Some states simply mirror the language of the Court s holding in Brady. Other states include provisions articulating the Court s subsequent holding in Giglio v. United States and Kyles v. Whitley. Some states have gone even further and use sweeping language, extending the prosecution s duty beyond the constitutional requirements. This Section seeks to provide an overview of the codification of the Brady doctrine within the state discovery procedure. 1. Variations of Brady Codification Type of Codification Number of States None 15 Indirect Reference to 5 9 Brady v. Maryland, 373 U.S. 83, 87 (1963). 10 Giglio v. United States, 405 U.S. 150, 154 (1972). 11 Kyles v. Whitley, 514 U.S. 419, 437 (1995) ( [T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government s behalf in the case, including the police. ); but see United States v. Robinson, 627 F.3d 941, 952 (4th Cir. 2010) ( Courts have routinely refused to extend Brady s constructive knowledge and would require prosecutors to do full interviews and background checks on everyone who touched the case. And with good reason. It is one thing to require prosecutors to inquire about whether police have turned up exculpatory or impeachment evidence during their investigation. It is quite another to require them, on pain of a possible retrial, to conduct disciplinary inquiries into the general conduct of every officer working in the case. ). 3

4 Brady v. Maryland Direct Reference to 30 Brady v. Maryland Currently, 15 states including Virginia have not codified the holding of Brady v. Maryland in any form. 12 An additional five states only indirectly address Brady s holding by referencing the state s obligations under the United States Constitution and the state s constitution. 13 For example, North Carolina statute asserts, This section shall have no effect on the State's duty to comply with federal or State constitutional disclosure requirements." 14 Among the states that have chosen to explicitly codify the holding of Brady v. Maryland, the statutes vary greatly. Two states have chosen to limit their protections specifically to the holding of Brady by referencing the case directly. 15 Louisiana Code of Criminal Procedure Art. 723(B), for example, states "Notwithstanding any provision to the contrary contained herein, the state shall provide the defendant with any evidence constitutionally required to be disclosed pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny." Delaware, Georgia, Indiana, Iowa, Kansas, Kentucky, Nebraska, North Dakota, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, and Wyoming. 13 ALA. R. CRIM. P. 16.1(f) ( Nothing in this Rule 16.1 shall be construed to limit the discovery of exculpatory material or other material to which a defendant is entitled under constitutional provisions or other provisions of law. ) Cf. NRS (3) ( The provisions of this section are not intended to affect any obligation placed upon the prosecuting attorney by the Constitution of this state or the Constitution of the United States to disclose exculpatory evidence to the defendant."); N.M. R. CRIM. P (A)(6) ( [A]ny material evidence favorable to the defendant which the state is required to produce under the due process clause of the United States Constitution."); N.Y. Criminal Procedure Law (h) ( Anything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States. ). 14 N.C. Gen. Stat. 15A-904(c). 15 Louisiana and New Hampshire. 16 La. Code of Crim. Pro. Art. 723(B). 4

5 Other states have chosen to mirror the language of the holding of Brady. The text in those statutes generally states something to the effect of, "The prosecuting attorney shall disclose to defense counsel any material or information within the prosecuting attorney's possession or control which tends to negate the guilt of the accused as to the offense or would tend to reduce the accused's punishment therefor." 17 Slightly broader versions of this language use tends to mitigate or negate to qualify the required disclosures. 18 Other common formulations of the Brady doctrine include, The prosecuting attorney shall disclose any exculpatory evidence 19 and the more inclusive standard of disclosing [a]ny evidence favorable to the accused that is material either to guilt or to punishment. 20 States have also looked to post-brady decisions when formulating their discovery rules. Two states have directly incorporated the holding of Giglio v. United States by specifically extending the protections to include impeachment information. 21 The Texas Code of Criminal Procedure, for example, states, Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged." 17 ALASKA R. CRIM. P. 16(b)(3). See also ARK. R. CRIM. P. 17.1(d); COLO. R. CRIM. P. 16(a)(2); HAW. R. PENAL P. 16(1)(b)(vii); IDAHO CRIM. R. 16(a); ILL. S. CT. R. 412 (C); VT. R. CRIM. P. 16 (b)(2). 18 Ariz. Revised Statute R. CRIM. P. 15.1(b)(8). See also MO. S. CT. R (9) ( Any material or information, within the possession or control of the state, which tends to negate the guilt of the defendant as to the offense charged, mitigate the degree of the offense charged, or reduce the punishment. ); MCA (1)(e) ( [A]ll material or information that tends to mitigate or negate the defendant's guilt as to the offense charged or that would tend to reduce the defendant's potential sentence. ); Utah R. CRIM. P. 16(a)(4) ( evidence known to the prosecutor that tends to negate the guilt of the accused, mitigate the guilt of the defendant, or mitigate the degree of the offense for reduced punishment ). 19 Cal. Penal Code (e). 20 PA. R. CRIM. P. 573(B)(1)(a). 21 Tex. Code Crim. Proc. art (h) ("Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged."); Oregon Revised Statutes ("Any material or information that tends to: (A) Exculpate the defendant; (B) Negate or mitigate the defendant's guilt or punishment; or (C) Impeach a person the district attorney intends to call as a witness at the trial."). 5

6 Most states that codify Brady incorporate the holding of Kyles v. Whitley into their rule or statute. Twenty states created a separate provision to define the prosecution s duty to disclose. A common formulation of the Kyles v. Whitley provision, for example, is [t]he prosecuting attorney's obligations under this section (a) extend to material and information in the possession or control of members of his or her staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report, or with reference to the particular case have reported, to his or her office." 22 However, states have also shown considerable variation in how they define the scope of the duty to disclose. For example, Illinois frames the issue as an additional affirmative duty rather than as articulating the scope of an existing obligation. The State should ensure that a flow of information is maintained between the various investigative personnel and its office sufficient to place within its possession or control all material and information relevant to the accused and the offense charged. 23 In contrast, Georgia chooses to articulate the scope of the prosecution s duty as a defined term within its definitions section. Possession, custody, or control of the state or prosecution means an item which is within the possession, custody, or control of the prosecuting attorney or any law enforcement agency involved in the investigation of the case being prosecuted. 24 An additional thirteen states articulate the scope of the prosecution s duties within the introduction or conclusion of the discovery statute rather than providing a separate provision. For example, at the start of the statute governing discovery, Wisconsin Statute states, Upon demand, the district attorney shall disclose all of the following materials and information, if it is within the possession, custody, or control of the state COLO. R. CRIM. P. 16(a)(3). 23 ILL. S. CT. R. 412(f). 24 Ga. Code Ann W.S.A (1). 6

7 Type of Brady Provision Number of States 26 References Brady by Name 2 Indirect Reference to Brady Doctrine 5 Giglio v. United States: Impeachment Provision 2 Uses Phrase Exculpatory Evidence (Facts or 12 Materials) Uses Phrase Evidence that Tends to Negate ( or 17 Mitigate) Guilt or Reduce Punishment Uses Phrase Favorable Material Evidence 4 Uses Phrase Evidence that Creates a Reasonable 1 Doubt Kyles v. Whitley Provision (Scope of Duty to Disclose) 20 Given the complexity and continuing debate about the scope of the Brady doctrine, it is noteworthy to mention that no state has attempted to define material or exculpatory within its rule or statute. 26 Some states are counted in two or more categories of Brady Provisions depending on the language of the statute. For example, Oregon Revised Statute (1)(g) states the prosecution must disclose "[a]ny material or information that tends to: (A) Exculpate the defendant; (B) Negate or mitigate the defendant's guilt or punishment; or (C) Impeach a person the district attorney intends to call as a witness at the trial." This statute is counted in both the Evidence that Tends to Negate Guilt or (Mitigate) Guilt or Reduce Punishment and Giglio v. United States: Impeachment Provision. 7

8 2. Relationship of Brady to Type of Discovery Statute There appears to be a correlation between whether the state has a limited system of prosecutorial disclosures and whether a state decides to codify Brady. Six of the eight states with arguably the most limited disclosure requirements currently have either not codified Brady or only indirectly reference the state s constitutional duty. 27 However, the presence or lack of a Brady provision is not dispositive of a specific type of disclosure system. North Carolina currently has the most expansive disclosure requirements in the country (no doubt in response to the issues presented in the Duke Lacrosse team case). On motion of the defendant, a North Carolina prosecutor is required to make available to the defendant the complete files of all law enforcement agencies, investigatory agencies, and prosecutors offices involved in the investigation of the crimes committed or the prosecution of the defendant. 28 references Brady in its Rules. 29 Despite having an open file discovery system, North Carolina only indirectly As noted in the North Carolina Advisory Council s Commentary, the North Carolina legislatures specifically chose not to codify Brady v. Maryland and elected to leave this matter to case law development. 30 However, North Carolina s sweeping disclosure requirements coupled with Rule 3.8 of the North Carolina Rules of Professional Conduct cause the State to surrender all relevant evidence regardless of whether the evidence reaches the standard of exculpatory set by Brady v. Maryland. 31 This approach attempts to minimize possible ethics and Brady violations caused by the State erroneously determining that a piece of evidence did not reach the standard of exculpatory. 27 Alabama, Delaware, South Carolina, South Dakota, Virginia, and Wyoming. The conclusion that these states discovery systems are the most limited in the country is a general observation conclusion considering the comparison of all fifty states discovery rules or statutes only. See Brady Spreadsheet. 28 N.C. Gen. Stat. 15A-903 (a). 29 N.C. Gen. Stat. 15A-904(c) ( This section shall have no effect on the State's duty to comply with federal or State constitutional disclosure requirements. ). 30 Criminal Code Commission Commentary, N.C. Gen. Stat. 15A-903(2011) 31 Robert P. Mostellar, Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery, 15 GEO. MASON L. REV. 25, 274 (Winter 2008). 8

9 B. Disclosures States vary greatly in the type of required prosecutorial disclosures. While all states have procedures regulating discovery, currently, the only disclosures uniformly required in all 50 states are (1) the defendant s prior written statements, (2) the defendant s prior recorded statements, and (3) physical evidence to be used at trial. Otherwise, states have codified over thirty separate types of prosecutorial disclosures. Common disclosures include: Type of Disclosure Number of States Defendant s Oral Statements 44 Co-Defendant Statements 34 Entity Statements 8 Defendant s Criminal Record 37 Witness Criminal Records 25 Witness List 37 Witness Statements 42 Expert Witness Identity (Individual s Specific 25 Qualifications; CV) Expert Witness Information (Basis for Opinion; 32 Reports) 9

10 Defendant s Grand Jury Testimony 27 Relevant Grand Jury Testimony 15 Disclosure of the Use of E-Surveillance 17 Disclosure of Law Enforcement Reports 14 Disclosure of Any Search or Seizure Preformed in 11 Connection with the Case Inducement Offered to Witnesses 6 Within these larger categories of disclosures, states rules demonstrate considerable variation. Some states will choose a narrow interpretation while others will mandate a broad, sweeping disclosure. For example, among state requiring the prosecution to disclose the defendant s criminal record, some states have imposed time, degree, or location restrictions. In Kansas, for example, the prosecution must only disclose any criminal conviction since July 1, California allows only for the disclosure of prior felony convictions to be used at trial. 33 Hawaii limits its duty to the defendant s Hawaiian criminal record unless the court specifically orders the prosecution to procure the defendant s criminal record outside of Hawaii. 34 Similarly, states that mandate the disclosure of witness criminal records often impose similar limitations. Nebraska, for example, only requires the known criminal history of a jailhouse witness rather than all witness criminal histories Kansas Statutes (j). 33 Cal. Penal Code (d). 34 Haw. Rules of Penal Procedure, Rule 16(b)(1)(v). 35 Statutes of Nebraska (1)(g). 10

11 Perhaps the greatest variation in prosecutorial disclosure requirements among the states exists for witness statements. States range from mandating the automatic disclosure of all witness statements to specifically disallowing the disclosure of any witness statements. Within the spectrum of states that allow for the disclosure of witness statements, states also vary greatly with the manner of the disclosure. Some states incorporate a separate temporal restriction for the disclosure. In Kentucky, for example, the prosecution must disclose prior witness statements, but the statute allows the prosecutor to wait until 48 hours before the trial to make the disclosure. 36 Louisiana s statute allows the prosecution to wait until immediately prior to opening statements to make the disclosure. 37 In other states, the disclosure serves more of an impeachment function than to aid in the discovery of relevant information. Connecticut, for example, allows for the disclosure of witness statements on motion of the defendant but only after the witness has testified on direct examination. 38 In contrast other states, like Alaska, mandate sweeping disclosures, requiring the prosecution not only to disclose witness statements but statements of any persons known by the government to have knowledge of relevant facts. 39 C. Privacy and Regulation of Discovery Each state regulates discovery and privacy protections differently. Unlike with prosecutorial disclosures, there are no unifying characteristics across all fifty states. However, some of the most common statutory categories of privacy and regulation include: Type of Privacy Protection Number of States 36 KY. R. CRIM. P. 7.26(1). 37 La. Code of Criminal Procedure Art. 716(D) ( The state need not provide the defendant any written or recorded statements of its witnesses until immediately prior to the opening statement at trial. ). 38 Connecticut General Statutes Annotated 54-86(b). 39 ALASKA R. CRIM. P. 16(b)(1)(A)(i). 11

12 Protective Orders 46 Sanctions or Remedies 45 Protection of Sensitive Material/ Sexual 16 Assault/Children Work Product 35 Provision Providing Extra Privacy Protections for 16 Witness/Victim Provision Providing for Excision to Protect Privacy 13 Investigation Not to Be Impeded 12 Custody of Materials 9 National Security 3 1. Privacy Protections While each state utilizes different privacy provisions, most states include some form of protective order provision. The most common formulation of the protective order provision authorizes the court to deny, restrict, or defer discovery upon a showing of cause. 40 Several states include language requiring the court to balance the harm to the defendant against the risk of disclosure before authorizing the protective order Alaska R. CRIM. P. 16(d)(4.) 41 Mont. Code Ann (1) ("Upon a motion of any party showing good cause, the court may at any time order that any disclosure be deferred or regulated when it finds:(a) that the disclosure would result in a risk or harm outweighing any usefulness of the unrestricted disclosure to any party; and (b) that the risk cannot be eliminated by a less substantial restriction of discovery rights."). 12

13 Several states also articulate specific procedures for the issuance of protective orders including in camera review, notice to opposing counsel of the issuance of the order, and preservation of the information under seal. 42 The most common additional privacy provision regulates the discovery of personal information about witness or victims. Sixteen states have included a provision that provides enhanced protection for witnesses and victims. 43 One state, Georgia, includes a similar provision providing protections for law enforcement agents. 44 These privacy provisions vary greatly in content and scope; however, the provisions either tend to focus on the type of information subject to disclosure or the defendant s conduct. For example, Alaska s Rule 16 limits the type of information that may be discovered by the defendant. Alaska s discovery scheme allows for the discovery of witness addresses and statements; however Alaska s discovery rules specifically require that the defendant s attorney not disclose to the defendant the witness s or victim s address and telephone number. 45 In contrast, other states have chosen to structure their provisions to protect against certain behaviors rather than simply protect certain types of information. A common formulation of such a provision is: The court may deny disclosure authorized by this section if it finds that there is substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment, resulting from such disclosure, which outweighs any usefulness of the disclosure to the defense See generally MICH. COURT R (E). 43 Alaska, California, Colorado, Florida, Georgia, Illinois, Kansas, Louisiana, Maine, Minnesota, Montana, Nebraska, Nevada, Oregon, and Wisconsin. 44 Georgia Code (b) ( Nothing in this Code section shall be construed to require the prosecuting attorney to furnish the home address, date of birth, or home telephone number of a witness who is a law enforcement officer. Instead, in such cases, the prosecuting attorney shall furnish to the defense attorney the law enforcement officer's current work location and work phone number"). 45 ALASKA R. CRIM. P. 16(d)(3)(B) ("An attorney shall not disclose to a defendant the residence or business address or telephone number of a victim or witness, obtained from information provided under this rule, even if the defendant is acting as co-counsel. If the address and telephone numbers of all victims and witnesses have been obliterated, materials that had contained the address or telephone number of a victim or witness may be provided to a defendant proceeding without counsel only as allowed by AS "). 46 COLO. R. CRIM. P. 16 Part I (d)(2). 13

14 Aside from these more traditional protections for witnesses and victims, several states have enumerated unique privacy protections to protect categories of information. For example, New Mexico includes a statutory provision limiting the disclosure of possible trade secrets. 47 Similarly, Arkansas, Illinois, and Missouri have all enacted provision protecting national security information. 48 Sixteen states have also enacted provisions requiring heightened protections for sensitive material dealing with sexual conduct, sexual assault or child victims. 49 For example, Utah s Rules provide that [t]he prosecutor or defense may impose reasonable limitations on the further dissemination of sensitive information otherwise subject to discovery to prevent improper use of the information or to protect victims and witnesses from harassment, abuse, or undue invasion of privacy, including limitations on the further dissemination of videotaped interviews, photographs, or psychological or medical reports Sanctions Provisions Most states specifically authorize a court to impose sanctions for a failure to comply with discovery provision. Some states, like Texas however, choose not to include such a provision, believing that such discretion is inherently within the powers of the trial court. For those states that have chosen to authorize sanctions within their discovery laws, the most enumerated remedies are (1) granting of a continuance, (2) prohibiting the introduction of the material not disclosed, and (3) permitting the party to inspect the materials not previously discovered. Most states also include a general provision allowing the court to made additional order as it deems necessary. Only five states specifically allow for a mistrial for failure to comply with 47 N. M. R. CRIM. P (A)(7) ("[A] trade secret or other confidential research, development or commercial information not be disclosed or be disclosed only in a designated way".). 48 ARK. R. CRIM. P. 17.5(c) (Rule 17.5(c) ("Disclosure shall not be required where it involves a substantial risk of grave prejudice to national security and a failure to disclose will not infringe upon the constitutional rights of the defendant. This subsection shall not be construed to permit refusal to disclose the identity of witnesses to be produced at any hearing or at trial."); see also ILL. S. CT. R. 412(j)(iii); MO. S. CT. R (c). 49 Arizona, California, Connecticut, Florida, Idaho, Kansas, Louisiana, Maine, Montana, New Mexico, North Carolina, Ohio, Oregon, Texas, Utah, and Wisconsin. 50 UTAH R. CRIM. P. 16(e). 14

15 discovery procedure. 51 States have also enumerated other possible options for the trial court. New Hampshire, for example, allows the court to assess[] costs and attorney s fees against the evidence not disclosed. 52 Under Wisconsin s statute, the trial court may inform the jury of any failure or refusal to disclose. 53 III. CASE STUDIES Section III seeks to provide a more in-depth look at different types of criminal discovery systems. Each subsection focuses on a different state and highlights some of the unique aspects of the state s discovery system. Texas, Washington, North Carolina, Ohio and Wyoming were selected in order to contrast the range of different disclosures and provisions currently enforced throughout the country. A. Texas Prior to January 1, 2014, Texas s discovery rules were relatively restrictive. 54 In order to receive discovery the defendant had to motion the court and demonstrate a showing of good cause. 55 Then upon notice to the other party, the court would authorize the disclosures of (1) designated documents, (2) papers, (3) written statements of the defendant, (4) books, (5) accounts, (6) letters, (7) photographs, (8) objects, or (9) other tangible things. 56 The statue also provided for the disclosure of the identity of expert witnesses, the basis of the expert s opinion, and the facts underlying the expert s opinion. 57 Witness statements and investigative reports were specifically protected from disclosure. 58 Unlike the current Virginia Rule 3A:11, the previous Texas statute did not require the disclosure of recorded statements or the substance of oral statements or confessions. Nor were prosecutors explicitly required 51 Louisiana, Maryland, Montana, North Carolina, and South Carolina. 52 N.H. R. CRIM. P. 98(k). 53 WIS. STAT. ANN (7m). 54 See TEX. CODE CRIM. PROC. ANN. art (2009). 55 TEX. CODE CRIM. PROC. ANN. art (a) (2009). 56 TEX. CODE CRIM. PROC. ANN. art (a) (2009). 57 TEX. CODE CRIM. PROC ANN. art (b)(2009). 58 TEX. CODE CRIM. PROC ANN. art (a)(2009). 15

16 to disclose scientific reports such as ballistic test and fingerprints. The statute also failed to provide for protective orders, sanctions, or a continuing duty to disclose. Following the high profile exoneration of Michael Morton, a man who served over twenty-four years for the murder of his wife, Texas overhauled its criminal discovery rules. 59 On January 1, 2014, the Texas legislature enacted the Michael Morton Act. Among its many changes, the new provisions expanded the prosecutor s duty to disclose, added privacy protections, and codified Brady v. Maryland. As enacted, the new Texas law expanded the existing disclosures to include (1) offense reports, (2) recorded statements of the defendant, and (3) written or recorded statements of witnesses. 60 The disclosure requirement also was amended from evidence in the possession, custody, or control of the State or any of its agencies to in the possession, custody, or control of the state or any person under contract with the state. (emphasis added). 61 The new language appears to expand the duty to disclose to third parties who do not normally fall within an agency relationship with the state. The statue also ends by informing the parties that the provision represents a floor and not a ceiling and that the parties are free arrange discovery that is equal to or greater than those required. 62 The new law also specifically includes a Brady provision. Texas s provision follows one of the more common formulations of Brady v. Maryland and also includes language articulating the scope of the disclosure. 59 See generally Ex Parte Morton, No. AP-76663, 2011 WL (Tex. Crim. App. Oct ); Morton v. State, 761 S.W.2d 876 (Tex. Crim. App. 1988); Josh Levs,, Innocent Man: How inmate Michael Morton Lost 25 Years of His Life, CNN.COM (Dec, 4, 2013) 60 There seems to be a strong focus on the importance of witness statements from the legislative history. This may correlate to the Michael Morton trial. In Mr. Morton trial, the prosecution suppressed statements of Morton s son and neighbor that tended to negate Morton s guilt. See Texas Senate Research Center, Bill Analysis, SB1611: SRC-MWR C.S.S.B (R). 61 TEX. CODE CRIM. PROC. ANN. art (a) (2014). 62 TEX. CODE CRIM. PROC. ANN. art (n) (2014). 16

17 [T]he state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged. 63 Texas statute also articulates a continuing duty to disclose for Brady material requiring that if at any time the prosecutor learns of Brady material, the prosecutor must inform either the defendant or the court. 64 Interestingly, the Texas statue does not include a general continuing duty to disclose prevision. The new statute also includes additional measures to help protect the sensitive information that might fall under the disclosures requirements. An excision provision now allows the state to withhold or react nonrelevant information in an otherwise discoverable document. 65 The statute also includes a blanket bar on either party disclosing any evidence covered by the discovery provision to third parties. 66 However, the statue makes exceptions for (1) previously publically disclosed information and (2) any court order from the court upon a demonstration of good cause and after weighing any privacy concerns. 67 All evidence is required to remain in the control of the attorney s or their agents. 68 For example a defense attorney may show a witness or defendant disclosed information, but the attorney is explicitly prohibited from distributing any copies of the evidence. 69 The statue further requires that when the non- 63 TEX. CODE CRIM. PROC. ANN. art (h) (2014). 64 TEX. CODE CRIM. PROC. ANN. art (k) (2014). 65 TEX. CODE CRIM. PROC. ANN. art (c) (2014). 66 TEX. CODE CRIM. PROC. ANN. art (e) (2014). 67 TEX. CODE CRIM. PROC. ANN. art (e) (2014). 68 TEX. CODE CRIM. PROC. ANN. art (f) (2014). 69 TEX. CODE CRIM. PROC. ANN. art (f) (2014). 17

18 attorney views the material all sensitive information such as address, social security numbers or driver s license numbers must be redacted. 70 Perhaps the most unique aspect of Texas s new law is its documentation requirements. The state is required to electronically record or otherwise document any document, item, or other information provided to the defendant under this article. 71 Similarly, the statue also requires that Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items and information provided to the defendant under this article. 72 The Texas statute still does not have a traditional provision regarding either protective orders or sanctions. However, a cursory review of unofficial comments and blogs of Texas lawyers seems to imply that such power is viewed as implicitly within the control of the trial court and including such a provision would be redundant. The legislative history of the Texas statue implies that the statute should be construed broadly. Despite no mention of witness lists in the discovery or indictment and information statutes, the bill s author wrote, S.B requires prosecutors to turn over to the defense any relevant evidence that may help the defendant, including witness lists. The defense also has a reciprocal obligation to turn over certain information to the prosecution. S.B also clearly defines what is considered to be privileged work product so that there is no question as to what is considered confidential. 73 Texas has chosen not to rely solely on the new statute to protect a defendant s rights. Texas has also taken strides to educate law enforcement about its role in upholding the constitutional requirements of Brady v. 70 TEX. CODE CRIM. PROC. ANN. art (f) (2014). 71 TEX. CODE CRIM. PROC. ANN. art (i) (2014). 72 TEX. CODE CRIM. PROC. ANN. art (j) (2014). 73 Texas Senate Research Center, Bill Analysis, SB1611: SRC-MWR C.S.S.B (R). 18

19 Maryland. The State Bar of Texas and the Texas Court of Criminal Appeals produced and filmed an educational video called Brady: A Simple Approach. 74 The film is 58 minutes long and is narrated by a Texas city s Chief of Police. The Chief begins by explaining from personal experience the importance of keeping an open mind about guilt or innocence of an arrestee. Then the Officer walks through the three prongs of Brady v. Maryland and explains what the defendant must show to state a claim. The Chief then explains several key issues in SCOTUS opinion and how they relate to police officers. The Film ends with a discussing of hypothetical situations and an officer s duty in each. B. Washington Washington currently mandates broad disclosure requirements. Under Superior Court Criminal Rules, Rule 4.7, the prosecutor is automatically required to make initial disclosures to the defendant before the omnibus hearing. 75 No action by the defendant is required to trigger the prosecution s duty to disclose. Before the hearing, the prosecution must provide the defendant with: (1) the names of address of witnesses; (2) the written, recorded, or oral statements of witnesses; (3) the written, recorded, or oral statements of the defendant and any co-defendant; (4) any relevant grand jury testimony, including the testimony or the defendant or witnesses; (5) any reports or statements of experts; (6) any tangible evidence that the prosecution intends to use at trial; and (7) any record of criminal convictions of the defendant or any witness of the prosecution Brady: A Simple Approach. TEXAS COURT OF CRIMINAL APPEALS. available at 75 WASH. SUP. CT. CRIM. R. 4.7(a)(1). 76 WASH. SUP. CT. CRIM. R. 4.7(a)(1). 19

20 Aside from these more common disclosures, the statute further requires the prosecution to make three additional disclosures at some point during discovery. 77 The prosecution must reveal the occurrence and any record of any electronic surveillance, including wiretapping, of the defendant s premises or conversation to which the defendant was a party. 78 The prosecution must further disclose the identity of any expert witness the prosecution intends to call at trail and any reports they have submitted to the prosecuting attorney. 79 Finally, the prosecution must disclose any information which the prosecuting attorney has indicating entrapment of the defendant. 80 Apart from the automatic disclosures, Rule 4.7 also allows for some additional disclosures upon request of the defendant. 81 The defendant may request that the prosecution disclose any relevant material and information regarding (1) Specific searched and seizures; (2) The acquisition of specified statements from the defendant; and (3) The relationship, if any, of specified persons to the prosecuting authority. 82 The language of the Rule focuses on the obligation of the defendant to specify which individual or action he wishes to have additional information on. Washington s criminal discovery rule also includes a Brady provision and a separate Kyles v. Whitley provision, articulating the scope of the prosecution s duty to disclose. Washington utilizes one of the more common codification of Brady, requiring the prosecution to disclose to defendant s counsel any material or information within the prosecuting attorney s knowledge which tends to negate defendant s guilt as to the 77 WASH. SUP. CT. CRIM. R. 4.7(a)(2). 78 WASH. SUP. CT. CRIM. R. 4.7(a)(2)(i). 79 WASH. SUP. CT. CRIM. R. 4.7(a)(2)(ii). 80 WASH. SUP. CT. CRIM. R. 4.7(a)(2)(iii). 81 WASH. SUP. CT. CRIM. R. 4.7(c). 82 WASH. SUP. CT. CRIM. R. 4.7(c). 20

21 offense charged. 83 The Rule further limits the prosecution obligation to material and information within the knowledge, possession or control of the prosecuting attorney s staff. 84 The most noteworthy feature of Washington s discovery procedure is its succinct, detailed statutory regulation of discovery under Rule 4.7(h). Section h is divided into seven separate categories: (1) Investigation Not to Be Impeded; (2) Continuing Duty to Disclose; (3) Custody of Materials; (4) Protective Orders; (5) Excision; (6) In Camera Proceedings; and (7) Sanctions. While there is nothing unique about Washington s inclusion of each provision individually, when viewed collectively, Washington has one of the most detailed and highly regulated statutory discovery schemes in the country. 85 Under Investigation Not to Be Impeded clause, each party shall not impede opposing counsel s investigation of the case. This provision specifically focuses on counsel s ability to influence witnesses. It forbids either party from dissuading individuals with relevant information from discussing the case with opposing counsel. Under the Continuing Duty to Disclose, if counsel discovers additional material, counsel must inform opposing counsel and, if the material is discovered during the course of the trial, the court as well. In order to protect privacy concerns, Washington s rule relies on the Custody of Materials, Protective Orders, Excision, and in Camera Proceedings provisions. Under the Protective Order provision, the trial court is authorized to restrict or defer discovery or make such other order as is appropriate upon a showing of cause. The Court is further authorized to conduct in camera review and excise portions of non-relevant information from discovery materials. Under Rule 4.7, any materials that are disclosed in discovery must 83 WASH. SUP. CT. CRIM. R. 4.7(a)(3). 84 WASH. SUP. CT. CRIM. R See also ILL. S. CT. R. 415 for an example of a similarly detailed discovery regulation scheme. 21

22 remain in the custody of the attorney receiving the items. 86 The defense attorney may supply the defendant with a copy of the materials but only if appropriate redactions are made. 87 Washington s Rule allows the court to impose sanctions on a party who fails to comply with the discovery rule. The trial court may order the party to (1) disclose the material, (2) grant a continuance, (3) dismiss the action or (4) enter any other appropriate order. 88 C. North Carolina 89 In 2004, North Carolina reformed their criminal discovery procedure statute to require open file discovery in all felony cases. The statute requires the State to make available to the defendant the complete files of all law enforcement agencies investigatory agencies, and prosecutors offices involved in the investigation of the crimes. 90 The statute also specifically requires law enforcement to timely make available to prosecutors a complete copy of the investigation files. 91 Under the statute, [a]ny person who willfully omits or misrepresents evidence or information required to be disclosed is subject to a criminal prosecution for a Class H felony 92 open file: The statute mandates that eight types of evidence must be made available to the defendant as part of its 86 WASH. SUP. CT. CRIM. R. 4.7(h)(3). 87 WASH. SUP. CT. CRIM. R. 4.7(h)(3). 88 WASH. SUP. CT. CRIM. R. 4.7 (h)(7) (1) Defendant s written or recorded statements; (2) Defendant s oral statements; 89 See Janet Moore, Democracy and Criminal Discovery Reform After Connick and Garcetti,7 7 BROOK. LAW REV. 4 (Summer 2012); see also Robert P. Mostellar, Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery, 15 GEO. MASON L. REV. 257 (Winter 2008)(arguing that North Carolina s open file policy prevents failures of ethical standards from ever occurring because little opportunity is allowed to misjudg[e] what is potentially exculpatory evidence ). 90 N.C. Gen. Stat. 15A-903(a) (1) (2011). 91 N.C. Gen. Stat. 15A-903(c) (2011). 92 N.C. Gen. Stat. 15A-903(d) (2011). 22

23 (3) Co-defendant s statements; (4) Defendant s criminal record; (5) Books, papers, documents, photographs, and tangible objects; (6) Results or reports of physical or mental examinations or of scientific tests or experiments; (7) Physical evidence, or a sample of it, and results of scientific tests or experiments preformed on the physical evidence; and (8) The names, addresses; and criminal records of witnesses the State intends to call. 93 Despite North Carolina s more liberal approach to discovery, the state chose not to attempt to codify Brady v. Maryland and instead elected to leave this matter to case law development. 94 The central idea behind North Carolina s approach is that the expansive nature of the discovery statue coupled with Rule 3.8 of the North Carolina Rules of Professional Conduct 95 causes the State to surrender all relevant evidence without 93 Criminal Code Commission Commentary, N.C. Gen. Stat. 15A-903 (2011). 94 See Criminal Code Commission Commentary, N.C. Gen. Stat. 15A-903 (2011). 95 Rule 3.8 states: The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) after reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; 23

24 having to decide whether the information reaches the threshold of exculpatory as required by Brady v. Maryland. 96 This approach attempts to minimize the risk of a possible Brady violation caused by the State incorrectly determining that evidence was not exculpatory. 97 D. Ohio In 2010, the Ohio Association of Criminal Defense Lawyers and the Ohio Prosecuting Attorney s Association drafted new rules of criminal procedure. 98 The Rules adopted by the State incorporate broad disclosure requirements. The Rules specifically address the Brady issue and provide broader protections than required by Brady. 99 Rather than have the prosecution turn over only exculpatory or impeaching evidence, the prosecution is specifically required to turn over any evidence favorable to the defendant and material to guilt (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client, or participate in the application for the issuance of a search warrant to a lawyer for the seizure of information of a past or present client in connection with an investigation of someone other than the lawyer, unless: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. 96 Robert P. Mostellar, Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery, 15 GEO. MASON L. REV. 257, 274 (Winter 2008). 97 Robert P. Mostellar, Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery, 15 GEO. MASON L. REV. 257, 274 (Winter 2008). 98 See The Commission on the Rules on the Rules of Practice and Procedure Commentary, OHIO REV. CODE CRIM. R. 16 (2010). 99 OHIO REV. CODE CRIM. R. 16(B)(5). 24

25 or punishment. 100 The Rule s discovery policy requires the State to disclose, upon written request within twenty-one days of arraignment: (1) Any written or recorded statement by the defendant; (2) Criminal records of the defendant, a co-defendant, witnesses; (3) All laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings, or places; (4) Results of physical or mental examinations, experiments or scientific tests; (5) Any evidence favorable to the defendant and material to guilt or punishment; (6) All reports from peace officers, the Ohio State Highway Patrol, and federal law enforcement agents, provided however, that a document prepared by a person other than the witness testifying will not be considered to be the witness s prior statement for purposes of the cross examination of that particular witness under the Rules of Evidence unless explicitly adopted by the witness; (7) Any written or recorded statement by a witness in the state s case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal. 101 The most unique aspect of Ohio s discovery system is its privacy provision. The Rules set in place a system by which the prosecutor can control privacy concerns through two separate mechanisms. First, Rule 16(C) allows the prosecution to label material Counsel Only. Counsel only material may only be viewed by the defense attorney or his agents. The defendant and third parties are not allowed to view the material. Counsel Only material may not be copied or reproduced. 100 OHIO REV. CODE CRIM. R. 16(B)(5). 101 OHIO REV. CODE CRIM. R

26 Second, Rule 16(D) allows the prosecution to avoid disclosure of sensitive material altogether. Counsel may decline to disclose if the prosecutor has reasonable, articulable grounds to believe that disclosure could lead to violence or coercion or if counsel believes that disclosure could comprise an ongoing investigation. If the prosecution decides not to disclose, the prosecutor must then certify to the court that it is not disclosing the material for a reason articulated in Rule 16(D). The defense may then challenge the certification. At which point, the trial court would perform in camera review of the material and determine whether the non-disclosure abused its discretion by failing to provide the materials to the defendant. 102 Ohio Rule 16 has received some criticism as not being liberal enough. The Rule requires the defense to request materials in writing. If the defense failed to proffer a written request for the materials, the defense s only protection from prosecutorial abuse would be Brady v. Maryland and its progeny The Counsel Only provision has also raised questions. The Rule requires reasonable articulable grounds to believe that disclosure by the prosecution could lead to harm or coercion; however, the Rule makes no mention of a reasonable articulable grounds requirement if the prosecutor determines that disclosure could affect an ongoing investigation. 104 This more liberal standard for ongoing investigations coupled with the trial court s abuse of discretion review of the prosecutor s nondisclosure determination could lead to possible Brady violations. 105 E. Wyoming 102 OHIO REV. CODE CRIM. R. 16(D). 103 Charles L. Grove, Criminal Discovery in Ohio: Civilizing Rule 16, 36 U. DAYTON L. REV. 143, 150 (Winter, 2011). 104 OHIO REV. CODE CRIM. R. 16(C). 105 Charles L. Grove, Criminal Discovery in Ohio: Civilizing Rule 16, 36 U. DAYTON L. REV. 143, 154 (Winter, 2011). 26

27 Wyoming currently authorizes relatively limited discovery disclosures. 106 The state s discovery scheme does not include a codification of Brady v. Maryland in any form. In order to innate discovery, the defendant must make a written request to the prosecution. 107 The statue provides for inspection and copy of (1) defendants written and recorded statements, (2) the substance of any oral statements made by the defendant, (3) defendant s recorded testimony before the grand jury, (4) if the defendant is a corporation or other entity, the testimony of officers and employees before the grand jury; (5) the defendant s prior criminal record; (6) documents and tangible objects; and (7) reports of examination and test. 108 Wyoming further specifically excludes, except in limited circumstances, police reports and witness statements from discoverable material. Police reports are only discoverable to the extent that the report includes the defendant s prior statement, the defendant s criminal record, or report of examination and tests. 109 If the report fails to fall into one of these categories, the prosecution is specifically authorized to withhold the report. 110 The defendant may request witness statements, but Rule 26.2 states that the prosecution is only required to disclose the statements upon court order after the witness has testified unless the court, in its discretion, specifically orders the statements produced earlier. 111 Wyoming statute provides only limited regulation provisions. The rule includes a general protective order provision, authoring the court to at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. 112 The protective order provision authorizes in camera review and requires the court to seal and preserve the evidence if a protective order is granted. 113 Wyoming s 106 See WYO. R. CRIM. P WYO. R. CRIM. P. 16(a)(1)(A)(i). 108 WYO. R. CRIM. P. 16(a). 109 WYO. R. CRIM. P. 16(a)(2). 110 WYO. R. CRIM. P. 16(a)(2). 111 WYO. R. CRIM. P. 26.2(a). 112 WYO. R. CRIM. P. 16(d)(1). 113 WYO. R. CRIM. P. 16(d)(1). 27

28 Rule also provides for sanctions if a party fails to comply with a discovery request. The court may (1) order the discovery, (2) grant a continuance, (3) prohibit a party from introducing the evidence, or (4) issue any other appropriate order. 114 IV. CONCLUSION Currently each state in the country protects a defendant s rights by authorizing some form of discovery in criminal trials. However, an examination of current state rules and laws demonstrates that criminal discovery practices vary considerably amongst states. While several characteristics are common, there is no such thing as a typically state criminal discovery system. 114 WYO. R. CRIM. P. 16(d)(2). 28