The Effect of Due Process on Criminal Defense Discovery
![handle is hein.journals/kentlj62 and id is 72 raw text is: The Effect of Due Process on
Criminal Defense Discovery
By BABmY NAxEr.L*
In a recent article dealing with the constitutional issues
raised by discovery in criminal cases,' I wrote that [i]t is con-
stitutionally as important that a defendant be informed of the
evidence as it is that he be informed of his rights.2 The Supreme
Court has been signalling that it might prefer to develop within
the criminal process doctrines that focus on fairness in ascertaining
the guilt or innocence of the accused3 rather than rules that utilize
the criminal process to control police conduct but which ad-
mittedly impede the search for truth to protect other values.
Since criminal defense discovery, like civil discovery, is designed
to improve the fact-finding process at trial,4 it is a prime candidate
for increasingly favorable attention from the Court. In a series
of decisions culminating last term in Wardius v. OregonP and
Gagnon v. Scarpelli,6 the Court announced embryonic due pro-
cess7 principles for establishing the two critical devices of de-
fense discovery-file disclosure and depositions.
FE DIsCLOSURE
The Supreme Court has long favored defense discovery in
* Associate Professor of Law, University of North Carolina School of Law.
1 Nakell, Criminal Discovery for the Defense and the Prosecution-The De-
veloping Constitutional Considerations, 50 N.C.L. REv. 437 (1972) [hereinafter
cited a, Nakell].
2 Id. at 450.
3 E.g., Schneckloth v. Bustamonte, 93 S.Ct. 2041, 2059, 2063-64, 2067, 2072
(1973) (concurring opinion); Argersinger v. Hamlin, 407 U.S. 25 (1972); Brady
v. United States, 397 U.S. 742, 758 (1970).
4 See Nakell 437 472.
5 93 S.Ct. 2208 (1973).
6 93 S.Ct. 1756 (1973).
7In addition to general due process, the specific provisions of the sixth
amendment, giving a defendant the rights to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining Witnesses in his favor, and to have the Assistance
of Counsel for his defense, all speak to an underlying constitutional policy of
broad discovery. Nakell 462-69.
8 See id. at 450, 469, 471, 472-74.](ViewImageLocal?handle=hein.journals/kentlj62&div=12&collection=&method=preview&ext=.png&size=3)
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The Effect of Due Process on Criminal Defense Discovery
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