An Argument against Open-File Discovery in Criminal Cases

Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of any one of the twelve [jurors]. Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and make his defense, fairly or foully, I have never beers able to see.... Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime. --Judge Learned Hand, United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923). INTRODUCTION After more than a year of media hype surrounding accusations of rape against three college athletes at Duke University (dubbed the "Duke Lacrosse Case" (1), North Carolina Attorney General Roy A. Cooper publicly announced the students' innocence and decried the prosecutor assigned to the case for his "tragic rush to accuse [the students] and a failure to verify serious allegations." (2) The fallout from this unethical prosecution included the disbarment of "'rogue' prosecutor" Mike Nifong (3) and an onslaught of calls for reform and more oversight in criminal prosecutions. (4) More specifically, many commentators saw this attempted miscarriage of justice as the perfect resurgence for an argument in favor of "open-file discovery." (5) Open-file discovery is the idea that the prosecution should provide the defense with everything in the prosecution's file--including witness statements and the names of witnesses, forensic evidence, and police reports. The defense would have access to this information without regard to the materiality of the evidence or the likelihood that the prosecution would introduce that evidence at trial. (6) The argument for open-file discovery, as reinvigorated by the Duke Lacrosse Case, is, "Had Mr. Nifong been operating under an open-file policy, the Duke Lacrosse Case never would have developed as far as it did." Mr. Nifong had DNA evidence in his possession that conclusively exonerated the accused Duke students. (7) If the defense had complete access to Mr. Nifong's files, the argument goes, they would have discovered the DNA evidence and the case would have ended. Unfortunately, the commentators in favor of open-file discovery failed to focus on the genesis of this foiled witch-hunt. The problem in the Duke Lacrosse Case was not the "closedness" of the prosecution's discovery files, but rather a "malicious[] conspir[acy] to bring charges ... against ... three innocent students." (8) Luckily for these students, Mr. Nifong bit off a little bit more than he could chew, and the defense counsel was able to expose the poorly orchestrated prosecutorial grandstanding and clear the students' names. (9) The case drew a national spotlight, and the defendants could afford private counsel to investigate the prosecutor's claims--not the best situation for a prosecutor attempting to hide evidence. (10) This Note argues that, for the most part, open-file discovery proponents fail to recognize the added burden that defense counsel would face under a regime in which all items of the prosecution's evidence are available for investigation by the defense. (11) This is particularly true in the eighty to ninety percent of criminal cases where the defendant is indigent, and the court-appointed defense counsel is operating under strict resource constraints. (12) This Note also argues that advocates of open-file discovery fail to recognize that in the majority of cases involving prosecutorial misconduct, the prosecutor's intentional wrongdoing will be sufficient to overshadow any reasonable amount of diligence performed by defense counsel. …