The View From Here

Discovery — It Shouldn’t Be So Hard

by Olcott Thompson, OCDLA President

From the April-May 2019 issue of The Oregon Defense Attorney

Why is getting discovery so hard? Why is it so hard to get access to information we need before trial to properly defend and represent our clients? Partly the problem is who makes the decisions about what we get and when.

The courts set up a process in which prosecutors decide what is exculpatory and how far afield to look. Given that very few prosecutors have been defense attorneys, they realistically do not understand what is exculpatory beyond that which hits them in the face. They do not have the creative ideas the defense has to turn tidbits into nuggets of exculpatory information.

While the prosecution is supposed to seek justice, all too often they seem to work to prevent it. They still don’t recognize that Kyles v. Whitley(1) requires them to seek out exculpatory information. And if they provide exculpatory information, often they delay in doing so. Why? Seems like they don’t look at the file after charges are levied until just before court appearances or just before trial. Prosecutors think they comply with their discovery obligation by giving defense counsel exculpatory information right before closing argument, too late for the defense to do anything with it. When the defense complains, the prosecution says: “We gave it to you.” But “better late than never” isn’t sufficient.

Judges, especially former prosecutors, don’t want to get involved. If they start finding the prosecution has not done what the Constitution requires, a political fight with the district attorney may ensue, perhaps a politically powerful person; what judge wants to be continually recused or branded as favoring criminals over “the forces of good”? However, it is often the case that judges also do not know what is exculpatory and what is not.

Maybe Oregon should adopt the federal standard for discovery. The federal rules require that everything material to preparing a defense be turned over. See FRCrP 16(a)(1)(E). As the Ninth Circuit recognized, virtually everything is material: “evidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding in witness preparation, corroborating testimony, or assisting impeachment or rebuttal.”(2) “Information is material even if it simply causes a defendant to completely abandon a planned defense and take an entirely different path.”(3)

Requiring the prosecution to turn over all relevant evidence will help because they can then no longer withhold information by claiming the evidence is not exculpatory. When everything is relevant, and all relevant evidence must be turned over, everything gets turned over.

This would require a statutory change, and that is certainly not going to occur this legislative session. Other weighty matters this session have center stage in 2019, including the juvenile justice bills and fixing problems with the state public defense system.

Meanwhile we all can do a better job seeking pretrial and trial exculpatory information, including extracting evidence from third parties. The process we must use is a mess but we can still use it. No matter what — the courts say — we have the right to subpoena anything we believe will be useful at trial. As the Oregon Supreme Court said in State v. Bray(4) we can subpoena virtually anything to trial. Use your subpoena power! It behooves us to push this. Trial subpoenas and subpoenas duces tecum must be enforced “unless it is clear that the material or testimony has ‘no potential use.’”(5) Subpoena information, prepare argument for why it is material or relevant to the defense case and ask to be heard ex parte so you can preserve your defense strategy. Make a record to show the trial courts (and the appellate courts) why not allowing us to get exculpatory information pretrial creates a mess at trial and causes unnecessary continuances in the middle of trial. This can help educate judges that it makes sense to allow us access to exculpatory information before—and not during—trial. Eventually judges may realize they can have speedier trials if they allow us to get the exculpatory information pretrial.

Admittedly, the process for getting information prior to trial is muddled. ORS 136.580 and the appellate standards (e.g., State v. Cartwright(6) have created far too many hoops that for some reason only the defense needs to jump through. We seek information from state actors (e.g., DHS) who have their own lawyers and don’t want to give the information to anyone. The prosecution however seeks information from entities who are either happy to help or don’t have lawyers. Change is needed to create more balance in the system.

Ideally, the defense and the prosecution should have a unified process to subpoena relevant information to court, to direct the trial court how to review the information in camera and to release what is appropriate pretrial and, whatever the trial court does not release pretrial as exculpatory should remain in trial court custody so the record can be used to show the appellate court why the exculpatory information was needed before trial. We should seek “détente” with the prosecution and work together to craft an easier method for both sides to get relevant evidence before trial. To create such a change may need help from legislators.

Meanwhile, keep in touch with your legislators in Salem. They need all the push and support we can give to better fund the public defense system. Legislators should know that if they don’t fix the system a lawsuit is a certainty which will cost the state even more.

We can and will work on these “lesser” fixes for the next legislative session.

(1) 514 US 419, 437-38, 115 SCt 1555 (1995).
(2) United States v. Soto-Zuniga, 837 F3d 992, 1003 (9th Cir 2016).
(3) Id. (quoting United States v. Lloyd, 992 F2d 348, 351 (DC Cir 1993).
(4) 363 Or 226 (2018).
(5) Id.
(6) 336 Or 408, 85 P2d 305 (2004).