Answering Discovery as a Prosecutor by Louis E. Marshall

May 1, 2024 by Carissa Carns

by Louis E. Marshall

Discovery

For those of you that practice mainly civil law and never have to forge your way through the trenches of criminal prosecution and criminal defense, discovery is something that is likely of the utmost importance to your practice. Things like interrogatories, requests for production, requests for admissions, and depositions are critical for both the plaintiff and defendant in civil cases. Countless hours are spent forming the questions and answers by the attorneys who are litigating these matters. Lawyers are extremely hands-on during the discovery phase of civil litigation.

In the criminal world, things are very different. The rules of discovery found in Criminal Rule 16 require some level of reciprocity between the prosecution and defense; however, the vast majority of production of documentation flows from the State to the Defense. Rarely do defendants have to provide information to the State other than potential witnesses.

Prosecutors work with several local and state agencies. Before a prosecutor can respond to a defense request for discovery, the reports and media must first be requested and obtained from applicable agencies, such as the Idaho State Police and local law enforcement agencies. This takes time. Prosecutors are not in control of those agencies, their internal practices, staffing levels, or response time. Each agency is different. Also, the volume of information received from each agency has increased as technology has advanced, and more agencies are utilizing body cameras and in-car cameras for their officers.

Prosecutors are also not in control of how long it takes labs to test evidence. Each individual lab, whether the Idaho State Lab or a private lab, sets their own procedures for testing. They prioritize the requests coming in based on their internal policies. This, of course, is not the fault of the prosecutor who oversees that case.

It should be noted that the type of discovery we are talking about does not exclude exculpatory materials. Exculpatory materials are required not only by Criminal Rule 16 but also clearly delineated by Federal and State case law as being mandatory for prosecutors to disclose to the defendant with or without a request.[i] Practically speaking, exculpatory materials often set off alarm bells to most prosecutors and it is the best practice to disclose those type of materials immediately even when discovery is not ready to send as an entire packet to the defendant or defense attorney. No prosecutor wants to withhold this type of information. Failure to disclose exculpatory materials is likely the fastest road to a prosecutorial misconduct finding by an appellate court.

There is very little potential motive for a prosecutor to purposely withhold giving the discovery to a defense attorney. Unlike whiskey and wine, our cases do not get better with age. A defendant’s case, on the other hand, often gets better with delays. Sometimes complaining witnesses, officers, and even deputy prosecutors have less zeal to prosecute a defendant after memory has faded and the initial shock of the crime has worn off. Witnesses move away. Officers retire or take jobs in other states. Memories fade. Delays cause backlogs in already overburdened caseloads of deputy prosecutors and make their jobs more difficult. A typical prosecutor in this state has hundreds of cases going on at any one time. It simply does not make any sense for a prosecutor to purposely delay the discovery process.

Many criminal defense attorneys in Sandpoint and Coeur d’Alene would attest that oftentimes my office will provide discovery early for them if they provide a reason why it is needed early, such as a separate Administrative License Suspension (“ALS”) hearing or a civil collateral matter such as a divorce. We provide these things not based on a Criminal Rule and the fourteen-day limit, but because these attorneys are colleagues, and we have no desire to make their job more difficult.[ii] The result is a relationship which works well in the court system. On the other hand, if local attorneys here were filing motions to compel and requests for sanctions, it is entirely possible that the collegial atmosphere would dissipate and the practical result would be all our jobs – for prosecutors, defense attorneys, judges, and court personnel –would be more difficult.

The Bigger Picture

The job of being a prosecutor has become more difficult.

If a defense attorney makes a mistake, it may amount to ineffective assistance of counsel and, perhaps ironically, prosecutors are charged with defending the effectiveness of such assistance in post-conviction proceedings. If a prosecutor is unsuccessful in that defense, the court may order a re-trial. If a prosecutor makes a mistake, it may amount to misconduct and the court may order a re-trial. I agree with the author’s conclusion in the March-April 2023 Discovery Delayed is Justice Denied article that prosecutors still have a tremendous amount of power in the criminal justice system. Prosecutors should fully embrace the responsibility that comes with that power. But, as the President of the Prosecutor’s Association, I believe it is important that we continue to recruit and employ excellent deputy prosecutors throughout this wonderful state.

Prosecutors are under attack from members of the public and media in ways that other attorneys and, quite frankly, judges, are not. It seems to me that attorneys should not contribute more to this with questionable claims of prosecutorial misconduct but rather should work within the confines of the paradigm that has worked so well for so long.

Louis E. Marshall

Louis E. Marshall graduated from the University of Idaho College of Law in 2001 and has been the Prosecuting Attorney for Bonner County since January 2009. He is the current President of the Idaho Prosecuting Attorneys' Association ("IPAA") and sits on several other boards. He is personally finishing his fourth term as the Elected Prosecutor in Bonner County. He has had the privilege of serving on the IPAA Board previously from 2009-2013 and from 2022 through the present day. Louis has three grown children and two grandchildren. His wife, Angela, is an attorney in Sandpoint.

[i] See Brady v. Maryland, 373 U.S.83 (1963).

[ii] See Discovery Delayed is Justice Denied: Discovery Delays in Misdemeanor Cases, Advocate (March/April 2023).