For years, we have challenged the 16th District Court policy regarding reciprocal discovery. The Livonia District Court has improperly compelled criminal defendants to provide discovery in criminal misdemeanor cases, even though the law is clear and unambiguous. Every time that this issue has surfaced, we have argued the law, cited the court rules, statutes, and the legal decisions, and the Livonia district court judges have ignored our arguments.
The unassailable policy of the 16th District Court was toppled today by an appeal that we filed with the Wayne County Circuit Court. The decision is available
here, and it reverses several years of improper practice in the district court.
"Discovery" refers to mandatory disclosures during the pre-trial phase of a criminal or civil case in which each party can obtain evidence from the opposing party. In civil cases, Michigan discovery is broad. Civil discovery rules allow a party to engage in depositions, request that questions be answered through interrogatories, request documents be produced, witnesses named, etc. Civil discovery rules also permit a party the right to inspect physical evidence and real property.
Criminal discovery rules are more narrow. In felony cases, Michigan Court Rule 6.201 provides that a party must provide the following:
(1) the names and addresses of all lay and expert witnesses whom the party may call at trial; in the alternative, a party may provide the name of the witness and make the witness available to the other party for interview; the witness list may be amended without leave of the court no later than 28 days before trial;
(2) any written or recorded statement, including electronically recorded statements, pertaining to the case by a lay witness whom the party may call at trial, except that a defendant is not obliged to provide the defendant's own statement;
(3) the curriculum vitae of an expert the party may call at trial and either a report by the expert or a written description of the substance of the proposed testimony of the expert, the expert's opinion, and the underlying basis of that opinion;
(4) any criminal record that the party may use at trial to impeach a witness;
(5) a description or list of criminal convictions, known to the defense attorney or prosecuting attorney, of any witness whom the party may call at trial; and
(6) a description of and an opportunity to inspect any tangible physical evidence that the party may introduce at trial, including any document, photograph, or other paper, with copies to be provided on request. A party may request a hearing regarding any question of costs of reproduction, including the cost of providing copies of electronically recorded statements. On good cause shown, the court may order that a party be given the opportunity to test without destruction any tangible physical evidence.
In addition to these six areas of mandatory disclosure, the prosecutor must provide the following:
(1) any exculpatory information or evidence known to the prosecuting attorney;
(2) any police report and interrogation records concerning the case, except so much of a report as concerns a continuing investigation;
(3) any written or recorded statements, including electronically recorded statements, by a defendant, codefendant, or accomplice pertaining to the case, even if that person is not a prospective witness at trial;
(4) any affidavit, warrant, and return pertaining to a search or seizure in connection with the case; and
(5) any plea agreement, grant of immunity, or other agreement for testimony in connection with the case.
Interrogatories, depositions and other discovery devices are not available in criminal cases.
Historically, prosecutors have been required to disclose exculpatory information. This duty grows out of the prosecutor’s obligation to ensure that justice is done, as opposed to winning the case. This is set forth in the landmark US Supreme Court decision in Brady v. Maryland, 373 U.S. 83 (1963). The prosecutor’s obligation to disclose plea agreements and grant of immunity was handed down by the US Supreme Court in Giglio v. United States, 405 U.S. 150 (1972).
The government must provide a person accused of a crime due process and fundamental fairness. But there is no similar obligation placed on the defense. This was most aptly described by Justice Byron White:
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.
– Mr. Justice White’s dissenting opinion in United States v. Wade, 388 U.S. 218, 256-58 (1967) (Emphasis added.)
In the realm of due process and fundamental fairness, a defense lawyer is not obligated to make the process of convicting a person easy for the prosecutor. There is no corollary rule providing for reciprocal discovery in misdemeanor cases, and the defense is not obligated to provide practically anything to the prosecutor. In fact, it is the existence of MCR 6.201 (described above) that enables prosecutors to compel the production of limited discovery from the defense in felony cases. In the absence of a court rule providing for reciprocal discovery in misdemeanor cases, the prosecutor cannot seek to have a mutual discovery order entered with the district court, and it is error for the district court to enter a mutual discovery order.
If you are charged with a crime in the 16th District Court and the prosecutor attempts to compel disclosure of discovery through a “mutual discovery order,” contact our office to help you defend your rights.