Discovery in the Criminal Process
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Copyright 0 1970 by Northwestern University School of Law
DISCOVERY IN THE CRIMINAL PROCESS
.JERRY E. NORTONt
Under our criminal procedure the accused has every
advantage. While the prosecution is held rigidly to the
charge, he need not disclose the barest outline of his
defense. He is immune from question or comment on
his silence; he cannot be convicted when there is the
least fair doubt in the minds of any one of the twelve.
Why in addition he should in advance have the whole
evidence against him to pick over at his leisure, and
make his defense, fairly or foully, I have never been
able to see .... Our dangers do not lie in too little
tenderness to the accused. Our procedure has been
always haunted by the ghost of the innocent man
convicted. It is an unreal dream. What we need to
fear is the archaic formalism and the watery sentiment
that obstructs, delays, and defeats the prosecution
of crime.
-Learned Hand'
This anachronistic apprehension that liberal dis-
covery if extended to criminal causes will inevitably
bring the serious and sinister dangers of perjury in its
wake will seem strange to many when coming from
this court which has been generally commended for
its aggressive sponsorship of liberal discovery and
effective pretrial procedures in civil causes and can
point to the solid evidence of its beneficial results to
the cause of justice without that defeat of justice
through perjury foretold by the prophets of doom. It
will be difficult to understand why, without proof
but only from some visceral augury, we now assume that
the hazard is so much greater in criminal causes....
Certainly without actual evidence and upon conjecture
merely, and in the face of the contrary proof of our
experience in civil causes, we ought not in criminal
causes, where even life itself may be at stake, forswear
in the absence of clearly established danger a tool so
useful in guarding against the chance that a trial will
be a lottery or mere game of wits and the result at
the mercy of the mischiefs of surprise. We must remem-
ber that society's interest is equally that the innocent
shall not suffer and not alone that the guilty shall
not escape. Discovery, basically a tool for truth, is
the most effective device yet devised for the reduction
of the aspect of the adversary element to a minimum.
-William J. Brennan2
t Assistant Professor of Law, Chicago-Kent College
of Law, Illinois Institute of Technology.
[This article is an expansion and up-to-date revision
of a thesis prepared by Professor Norton in partial
fulfillment of the requirements for a Master of Laws
degree which he received from Northwestern Univer-
sity in 1967.]
1 United States v. Garsson, 291 F. 646,649 (S.D.N.Y.
1923).
The adjoining quotations suggest that the con-
troversy over the proper scope of criminal dis-
covery is grounded in differing conceptions of the
premises underlying the criminal process. If one
begins with the belief that the criminal process is
an adversary process between two relatively equal
parties and that the defendant's privilege against
self-incrimination and other consttutional rights
give him a great advantage over the prosecution,
it is almost inevitable that the conclusion will be
that the scope of criminal discovery should not be
expanded. However, if one places an affirmative
duty upon the state to guarantee that the de-
fendant receive a fair trial and pictures the
criminal process as an unequal contest between
the state with its immense investigatory resources
and an often poor and uneducated defendant, the
opposite conclusion is inevitable.
Criminal discovery in the United States has
historically been premised on the former view of
the criminal process. This article will examine the
development and status of criminal discovery in
the United States and its underlying policy bases.
The examination will encompass both constitu-
tional requirements and the practical consequences
of differing standards of disclosure. The article will
conclude with a review of a comprehensive pro-
posal which seeks to accomodate the dictates of the
Constitution and fairness to the defendant with
the preservation of ordered liberty.
THE Co0moN LAW AND THE ADVERSARY PRocEss
In order to understand the reluctance of courts
and legislatures to permit discovery in criminal
cases, it is necessary to view the question against
the background of the common law and its
dependence upon the adversary process. Surprise,
rather than being regarded as the enemy of truth,
was considered its strongest ally. Any proposal
tending to reduce the element of surprise was
viewed with great alarm. When the defendant,
in 1792 in King v. Holland,' requested that he be
2 State v. Tune, 13 N.J. 203, 228-229, 98 A.2d 881,
894-895 (1953) (dissenting opinion).
King v. Holland, 4 Durn. & East 691, 100 Eng.
Rep. 1248 (K.B. 1792).
Vol. 61, No. I
Printed in U.S.A.](ViewImageLocal?handle=hein.journals/jclc61&div=7&collection=&method=preview&ext=.png&size=3)
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Discovery in the Criminal Process
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