68 Wash. U. L. Q. 71 (1990)
Protecting Defense Evidence from Prosecutorial Discovery

handle is hein.journals/walq68 and id is 83 raw text is: PROTECTING DEFENSE EVIDENCE FROM
In Jencks v. United States,1 the Supreme Court ruled that a federal
criminal defendant has a constitutional right to discovery of prior state-
ments of a government witness if those statements are related to the testi-
mony of the witness at trial. The Court based its ruling on the crucial
importance of such statements to the defendant's ability to impeach wit-
nesses effectively on cross-examination and to prepare his defense ade-
quately.2 As courts continued to grant criminal defendants greater
access to helpful evidence prior to trial,3 however, the government began
demanding equal treatment. Prosecutors argued that, aside from the
fifth amendment privilege against self-incrimination, a defendant has no
valid interest in denying the prosecution access to evidence that could
throw light on the issues in a case-that the state has just as much right
to discovery of defense evidence as the defense has to discovery of evi-
dence in the hands of the state. Sensing a receptive attitude from the
legislatures and the courts, prosecutors argued further that the general
policy of wide-open discovery in civil cases should be equally applicable
to criminal trials.
It is now clear that the fifth amendment is not an absolute bar to crimi-
nal discovery in favor of the prosecution.4 For example, the Supreme
* B.A., Williams College, 1961; J.D., Fordham University, 1968. Mr. Beckler is a partner in
the Washington, D.C. office of Fulbright & Jaworski.
** B.A., Duke University, 1979; J.D., Duke University, 1982. Mr. Robinson is a participating
associate in the Washington, D.C. office of Fulbright & Jaworski.
*** B.A., University of Arizona, 1980; J.D., University of Virginia, 1988. Ms. Morphew is an
associate in the Washington, D.C. office of Hazel, Thomas, Fiske, Weiner, Beckhorn & Hanes, P.C.
1. 353 U.S. 657 (1957).
2. Id. at 667, 668-69.
3. See, e.g., Wardius v. Oregon, 412 U.S. 470, 475 (1973) (insisting that discovery in a criminal
trial must be a two-way street).
4. Williams v. Florida, 399 U.S. 78, 85 (1970) (Nothing in the Fifth Amendment privilege
entitles a defendant as a matter of constitutional right to await the end of the State's case before
announcing the nature of his defense.).

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