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50 N.C. L. Rev. 437 (1971-1972)
Criminal Discovery for the Defense and the Prosecution--The Developing Constitutional Considerations

handle is hein.journals/nclr50 and id is 455 raw text is: CRIMINAL DISCOVERY FOR THE DEFENSE AND THE PROSECUTION-THE DEVELOPING CONSTITUTIONAL CONSIDERATIONS BARRY NAKELLt I. DISCOVERY FOR THE DEFENSE No innovation in civil procedure since the development of the ad- versary system has so dramatically improved the way in which we try our lawsuits and effect voluntary settlement as has discovery. Its basic aims are equally appropriate for criminal cases. Such aims are to enable each side in a suit to obtain relevant information from the other about the issues in dispute; to safeguard against surprise at trial; to define the issues narrowly and clearly so the parties can focus the evidence on them; to assist in ascertaining truth and detecting perjury; to encourage settlements by educating the parties in advance on the courtroom chances of their claims and defenses; and to assure the availability of probative evidence to the party whom it helps. Nevertheless, the benefits of discovery to the parties and to the adjudicative process result from one of the few judicial procedures gen- erally available to a civil litigant that is not also generally available to a criminal defendant. Despite the success that discovery has had in reforming the civil trial process, discovery in criminal cases is still re- sisted on the basis of objections claimed to be unique to the criminal process. Those objections are that the mutuality of civil discovery2 would not be available in the criminal court because the fifth amend- ment privilege against self-incrimination bars discovery from the defen- dant; that supplying criminal defendants with advance information about the evidence against them would enable them to prepare their own perjury, to suborn the perjury of others, or otherwise to fabricate evi- dence in order to shape a defense to the contours of the prosecution's tAssistant Professor of Law, University of North Carolina School of Law. This article was prepared in cooperation with the North Carolina Law Center. 'See generally Hickman v. Taylor, 329 U.S. 495 (1947); Greyhound Corp. v. Superior Court, 56 Cal. 2d 355, 364 P.2d 266, 15 Cal. Rptr. 90 (1961); W. GLASER, PRETRIAL DISCOVERY AND THE ADVERSARY SYSTEM (1968). 2See Hickman v. Taylor, 392 U.S. 495, 507 n.8 (1947).

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