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1964 Duke L.J. 477 (1964)
Discovery in Criminal Cases--In Search of a Standard

handle is hein.journals/duklr1964 and id is 487 raw text is: DISCOVERY IN CRIMINAL CASES-IN SEARCH OF A STANDARD ROBINSON 0. EVERETT* INTRODUCTION N no context is the old adage that knowledge is power more accurate than in the conduct of litigation. The counsel who is forewarned concerning the testimony which will be offered by his adversary is also forearmed, and thus in some instances he may be able to destroy the effect of such evidence by skillfully conceived cross-examination or other means of impeachment. In civil cases, whether in federal or state courts, there has been increasing ex- pansion of the tools and techniques of discovery-such as the more extensive and liberalized use of depositions, interrogatories, requests for admissions, and, in personal injury cases, physical examinations of plaintiffs. In criminal cases, however, the expansion of discovery devices has generally proceeded much more slowly.' For the most part, the nonavailability of comprehensive instru- mentalities of discovery in criminal proceedings seems to be far less of a handicap to the prosecutor than to the defense counsel, whether he be privately retained, assigned by the court, or a public defender. The former may have available extensive investigative reports and statements from witnesses to aid him; the latter may have nothing * A.B. 1947, LL.B. 1950, Harvard University. Co-Editor, LAw AND CONTEMPORARY PROnLEMS; Adjunct Professor of Law, Duke University. I In some instances discovery may be available in criminal cases under circumstances where it would not be available in civil litigation. For example, the opportunities for the prosecution to obtain discovery through the arrest of the accused and his interroga- tion by police officers or through the proceedings of a grand jury, where a prospective defendant's counsel is not available and the minutes are generally unavailable to defendant for inspection, have no parallel in civil actions. In some jurisdictions a defendant who relies upon an insanity defense may be hospitalized for examination by impartial experts prior to trial, a procedure for obtaining expert medical evaluation which is probably not available to the same extent in personal injury litigation. In some situations the prosecution might be compelled to reveal documents which would be considered privileged as part of the attorney's work product in a civil case. See United States v. Aviles, 315 F.2d 186, 191 (2d Cir.), remanded on other grounds sub nom. Evola v. United States, 375 U.S. 32 (1963). Moreover, the prosecution is regarded as having responsibilities to a defendant which seem today to go beyond the responsi- bilities placed upon opposing counsel in the civil courts.

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