7 U.S.F. L. Rev. 203 (1972-1973)
Criminal Discovery - The Circuitous Road to a Two-Way Street

handle is hein.journals/usflr7 and id is 211 raw text is: Criminal Discovery-The Circuitous
Road To A Two-Way Street
By Hon. Robert F. Kane*
The lofty prime objective of the adversary system, we are con-
stantly reminded, is the ascertainment of truth. It is rather startling
(and generally unexplainable to the average citizen), therefore, to en-
counter so many roadblocks in the path of justice.
It is conceded that in the area of criminal law constitutional safe-
guards essential to the presumption of innocence must be upheld-
resulting in non-disclosure of the truth. However, before the ultimate
goal of the system-ascertainment of the truth-is subjected to such a
compromise, the showing of constitutional invasion should be clear,
convincing and real. It should not be left to speculation, conjecture or
inferential surmise. Perhaps nowhere else in the law is this problem
more manifest today than in the field of criminal discovery. The
criminal defendant in California currently enjoys extensive rights of
pre-trial discovery supported by a full panoply of sanctions which can
be imposed against a noncompliant prosecutor.' On the other hand,
the prosecution's rights of discovery are limited, and to date California
courts have been reluctant to impose any sanction against the defendant
or his counsel for refusal to obey a discovery order.
Whether the prosecution should be permitted reciprocal discovery
rights is the issue to be discussed here. From the isolated standpoint
of achieving the ascertainment and declaration of truth, there can be no
valid argument against such reciprocity; accordingly in this context the
* J.D., 1952, University of San Francisco. Associate Justice, First District,
Division Two, Court of Appeal of the State of California. The author gratefully
acknowledges the research assistance of Ms. Kathleen Ragan and Ms. Yuklin Foglia
of the Law Review Staff.
1. For example, upon a showing that an informant might possibly have evidence
bearing on the issue of defendant's guilt, his identity must be disclosed or the action
dismissed. Honore v. Superior Court, 70 Cal. 2d 162, 74 Cal. Rptr. 233 (1969).

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