01/12/2009 05:12 am ET Updated Nov 17, 2011

Expanding Discovery in Criminal Cases

Last week a news story in the Cleveland Plain Dealer reveals that resistance to the American Bar Association's recommended open-file discovery laws are still strong in some jurisdictions. Open-file discovery - or the process in which the prosecution discloses to the defense all relevant information that is known concerning a criminal proceeding, including police reports, witness names, and witness statements - is now being demanded by judges in Cuyohoga County. Ohio does not have an open-file discovery statute.

The proper functioning of the criminal justice system - accurate verdicts, fair sentences, and the protection of fundamental constitutional rights, depends on effective discovery procedures. Discovery is a crucial procedural safeguard that protects against wrongful convictions, helps to make the legal system more transparent by increasing pretrial disclosure, and ensures a fair procedure by allowing each side in a trial to adequately prepare their case. Unfortunately, in most jurisdictions, discovery is not automatic - it depends on a motion or request from the defense. Furthermore, prosecutors are only constitutionally required to disclose "exculpatory" evidence, or evidence that tends to negate guilt, under Brady v. Maryland. Any additional discovery obligations can only be imposed by a statutory requirement put in place by the legislature.

Suppression of exculpatory evidence is one of the leading causes of wrongful conviction. Exculpatory evidence can be withheld for years, even decades, while an innocent person sits in prison. Whether the state fails to disclose evidence inadvertently or intentionally, clear rules about what is subject to discovery - and clear consequences for failure to disclose discoverable material - should be implemented to minimize the risk of these mistakes. The need for expanded discovery procedures was recognized by the ABA in 1994, when they recommended all states adopt open-file discovery.

Open-file discovery creates a more level playing field by ensuring that evidence can be meaningfully challenged and tested by removing much of the uncertainty inherent in the discretionary disclosure decisions prosecutors now have to make. Any possible risks associated with open-file discovery are greatly outweighed by the benefits because it can eliminate one of the most dangerous and widespread prosecutorial errors - the inadvertent suppression of potentially exculpatory evidence.

The Justice Project's publication, Expanded Discovery in Criminal Cases: A Policy Review (pdf), offers recommendations and solutions for expanding discovery laws. It provides information on states which have enacted expanded discovery legislation, case studies, voices of support, and a model policy.

Some states like North Carolina, Florida, Colorado, New Jersey, and Arizona have already taken a step in expanding discovery. Legal practicioners in these jurisdictions report a more efficient process, with fewer reversals and retrials and more cases resolved earlier in the process. In short, expanded discovery practices also enhance judicial efficiency.

It is in the best interest of everyone that broad safeguards like expanding discovery laws exist to improve the fairness and accuracy of the criminal justice system. I applaud the judges in Cuyohoga County for demanding such an important practice to take place in their courtrooms. It is no small testament to the importance of discovery reform that groups such as the American Bar Association, the National Conference of Commissioners for Uniform Law, and state criminal justice commissions have addressed the need for clearer and more transparent discovery regulations.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.