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April 03, 2006

Reciprocal Criminal Discovery in MA

Dan Filer comments on the NY Times' coverage of Commonwealth v. Durham, the recent Massachusetts high court decision requiring defense counsel to turn over statements it plans to use to impeach gov't witnesses. As Filer notes, the Times is pretty late to the game here—Woman of the Law posted about this weeks ago. Still, both the Times and Filer add some interesting perspective. My first reaction was that this was awful, and like Filer, I can't imagine it's going to help defendants much. On one hand, I agree with the theory that everyone benefits when we minimize the “gotcha” element of trials and try to make them more about who has the most and best facts on their side. Or, as one off the judges in that case wrote:

“Criminal trials,” Justice Greaney wrote, “are matters of justice and not sporting events in which the side that has the strongest advocate (employing advantages to which he or she is not entitled) gains the upper hand.”

On the other hand, we know there's always going to be a gotcha element to trials and the state has many more resources available to gather evidence and overpower defendants, so there's a possible equity in allowing the defense to keep a couple of cards closer to its vest. I also agree with one of the defense attorneys involved that this is just a way to make lying witnesses into better liars. I mean, if you have impeachment evidence for a witness, that means that the witness is already of questionable credibility and therefore more likely than the average person to be willing to lie. This will just give those people time and opportunity to strengthen their stories.

The Times story adds the context that only two other states require this reciprocal discovery in criminal cases—NJ and MN. At least one lawyer in MN said this rule has lead to more dismissals b/c the prosecution sees the impeachment evidence and realizes its case is weak. However, that's just anecdotal. This would be a great topic for research—have these rules really led to more dismissals in NJ and MN?

Posted April 3, 2006 07:36 AM | crimlaw

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