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State Secrets (The Discovery Process in Criminal Cases)

Posted by: Brent Horst
December 29, 2007
Topic: A day in the life of a criminal defense lawyer

One thing that is extremely frustrating is when some prosecutors find it necessary to try to hide information. I understand the need for "State Secrets" in the context of wars and national security. However, in the context of the typical criminal prosecution there is no place for "State Secrets" and the hiding of information by the State. Such actions even though often allowed by the rules of procedure seem to me to be an obvious violation of due process rights.

In some states like Tennessee and in the Federal system a person charged with a crime has very limited rights to see the State's evidence prior to trial. The Defendant is not allowed take a forced sworn deposition from witnesses, he is not allowed to subpoena records from the State or from witnesses because he thinks there may be favorable evidence in those records, and the government is not required to even list the witnesses it plans to present at trial or even to tell the Defendant what the witnesses are expected to say. About the only thing the State is required to turn over in the Federal System and in some states like Tennessee are statements the government plans to present at trial which were allegedly made by the Defendant, and any test results of an expert the State plans to call as a witness.

Civil litigants have more discovery rights in a civil lawsuit than a defendant in a criminal case; which certainly seems to be upside down when a defendant in a criminal case could be going to prison and a civil suit is usually only about money.

All this being said, some prosecutors - those who understand that their job is to seek justice not to just get convictions realize the injustice of hiding information from a defendant and many provide open file discovery allowing the defendant to review and have a copy of everything that they have. These prosecutors understand that if the evidence they have cannot survive pre-trial scrutiny and they can only win their case by surprising the defense at trial then it is likely that their case is not worthy and not strong enough to justify taking a mans freedom. I have enormous respect for these types of prosecutors.

On the other hand, I just don't understand those prosecutors who hide facts and evidence, and will fight tooth and nail against disclosing facts to the Defense. I am currently dealing with a case right now that is great example of how some prosecutors will hide behind procedural rules and go to extreme efforts to gain an unfair advanage over a defendant. I am defending a person accused of child abuse. A young girl suffered a broken arm. Despite the fact that she initially told her sister and the hospital that she hurt her arm by falling the State became convinced the injury was caused by intentional abuse and the state did a "forensic interview" of the girl who allegedly stated during that "forensic interview" that my client hurt her arm. Although the prosecutor has agreed to let me come to his office to look at a DVD recording of the interview he will not let me have a copy of the interview. I was able to convince the judge presiding over the case to order that I be allowed to have a copy of the interview arguing that a "forensic interview" is in fact a result of a scientific test due to the fact that a forensic interview is supposed to be done in a "scientific manner". Even after this ruling by the judge the State has still refused to give me a copy and has filed a motion with the court asking the judge to reconsider her ruling.

The frustrating part is that I do not understand what the State believes the harm is for me to have a copy of that interview other than if they are afraid that allowing me to have a copy will harm their chances of a conviction, and it is unfortuneate and unfair if this is the reason that they will not let me have a copy. I know it is the local district attorney's policy to not allow defense attorney's to have copies of the interviews - but why - unless it is to gain unfair advantage? I understand that in some cases such as sexual abuse allegations the State may be concerned about the privacy of the accuser due to the sensitive topic. However, those concerns can be dealt with by the court issuing orders that the defense attorney not let anyone else see the DVD and that it must be returned or destroyed once the case is over. Having copies to work with as the case progresses and as the defense attorney prepares for trial is essential. Having tried many cases I can tell you that when preparing for trial an attorney needs to review a witnesses statement numerous times and trying to prepare for trial simply from notes made while viewing the interview at the prosecutors office is simply not sufficient and will usually hinder my ability to effectively prepare a defense. Denying the defense attorney a copy of this interview simply provides the State with an unfair advantage. They can look at the interview as many times as they need, I am denied the same right. Hopefully the judge in this case will stand firm and will not reverse her earlier ruling. It is unfortunate that we even have to fight this battle. Criminal cases should be about truth. There should be no hiding or hording of information.

When it comes to the criminal justice system there should be no tolerance for "State Secrets".

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State Secrets (The Discovery Process in Criminal Cases)

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