Silent Witness - Volume 7, Number 3, 2003

Discovery Issues

by Lisa Kreeger, Senior Attorney

Responding to discovery requests is, generally, not the sole motivation for becoming a prosecutor, is inevitably time consuming and, definitively, the prosecutor’s job. This issue of The Silent Witness provides cases and commentary to assist you in responding to requests for defense discovery. The analysis focuses on (1) compliance with state criminal procedure rules and (2) the ethical responsibilities developed in case law beginning with Arizona v. Youngblood, 488 U.S. 51, 102 L.Ed.2d 281, 109 S. Ct. 333 (1988).1

Generally, the facts subject to appellate review in pretrial discovery matters are as follows: facts describing the State’s efforts to make available scientific test reports and relevant raw data used in a given case; and facts describing the State’s efforts to maintain and preserve the evidence, as outlined in Youngblood.

Criminal Procedure Compliance

One illustrative case of several points regarding pretrial discovery is State v. Whitehead, 2001 Tenn. Crim. App. LEXIS 732 (Crim.App.Ct. Sept. 7, 2001). In Whitehead, the defense asked for the following: names and curriculum vitae of all analysts involved, not only in testing materials in the case, but in the maintenance of the database; current residences of all subjects included in the database; all lab procedure manuals; lab accreditation and proficiency testing documentation; lab error rate documentation; bench notes and photographic copies of the dot blots in the case.2

Three days after it was received, the prosecutor responded to the discovery request by letter, stating he intended to execute his office policy of “open file discovery.” This allowed the defense attorney to copy, in the prosecutor’s office, what was contained in the prosecutor’s file. The prosecutor further extended a similar response on behalf of the Tennessee Bureau of Investigations (TBI) laboratory, suggesting that the defense attorney contact the analyst to arrange to review discoverable information at the crime lab. The defense attorney refused the prosecutor’s offers and filed a motion requesting a formal State response. Simultaneously, the defense attorney contacted the TBI lab directly and requested the TBI lab provide the items to him. The prosecutor’s formal response was a reiteration of his previous letter explaining that all documents in the prosecutor’s possession were available to the defense lawyer either at the prosecutor’s office or at the lab. Subsequently, the defendant moved to compel and order the prosecutor to deliver documents to the defense. The defendant, at the hearing regarding the defendant’s motion to compel discovery, complained specifically of not being able to obtain “the dot-blots or charts of the DNA testing.”3 The principal point of contention was the fact that the dot-blots were at the TBI lab in Nashville, Tennessee while the attorneys and the court were located in Jackson, Tennessee, approximately two hours away. The prosecutor made available, as ordered, photographic copies of the dot-blots, but additionally informed the defense attorney that in order to review the Nashville analyst’s work, the attorney could go to Nashville. The TBI Nashville analyst, in a letter attached to the final lab report, repeated this invitation. The defense attorney received the lab report and invitation 12 days before trial. The defense attorney then moved to exclude the DNA evidence based upon discovery violations.

The trial judge denied the defense motion to exclude, finding that the State did not violate the discovery rules. The trial judge’s ruling was affirmed. The appellate court found that the State provided the defense complete access both to the results of DNA testing conducted by the TBI and to information relating to the accuracy of the tests and test results. State v. Whitehead, 2001 Tenn. Crim. App. LEXIS 732, p.47. The crux of the defendant’s complaint was that the defense attorney was required to travel to Nashville from Jackson to obtain discovery at the lab. The court noted that the State had granted the defense attorney complete access to available information from his office and the lab. Citing a number of cases that discuss the defense attorney’s responsibility to exercise reasonable diligence in pursuit of discovery, the appellate court held that, absent evidence that the State’s invitation to defense counsel was a tactic designed to hinder his discovery, it was the defense attorney’s responsibility to go to the lab to obtain the information. State v. Whitehead, 2001 Tenn. Crim. App. LEXIS 732, p.49.

The practice of the Tennessee prosecutor is an excellent model: simply informing the defense attorney that she/he can go to the lab at the mutual convenience of the analyst and the attorney, in order to obtain copies of what is specifically available, can effectively preclude subsequent complaints. It is not recommended that a prosecutor simply agree to enable the defense attorney to direct the lab analyst in what to produce nor that a prosecutor simply agree to provide whatever the defense requests. In particular, agreements not to proceed with further testing without a defense expert or attorney present, agreements not to consume or exhaust samples, agreements to provide personal background information (including the analyst’s DNA profile) or agreements to provide software data or primer sequences should not be made by the prosecutor. Working with the laboratory involved in your case to coordinate a discovery response assists the prosecutor and saves precious resources of time and labor spent creating discovery that the defense attorney is not seeking. Check with your lab regarding their concerns and review their existing policies.

Ethical Responsibility Compliance

The prosecutor’s ethical responsibilities pertaining to biological evidence are (1) to preserve evidence that possesses both an apparent exculpatory value and that will not be obtainable by other reasonably available means, and (2) to assure that the defendant has access to the “basic tools” or “raw materials integral to the building of an effective defense.” California v. Trombetta, 467 U.S. 479, 81 L.Ed.2d 413, 104 S.Ct. 2528 (1984)4 outlined the first obligation and Ake v. Oklahoma, 470 U.S. 68, 84 L.Ed.2d 53, 105 S.Ct. 1087 (1985) discussed the second obligation created to insure protection of a defendant’s Due Process rights.

An application of a Brady analysis favorable to prosecutors is found in People v. Griffin, 46 Cal.3d 1011, 761 P.2d 103 (CA, 1988). In a felony murder case, in which the underlying felony was rape or sodomy, the prosecution tested for prostatic acid phosphatase and consumed the entire anal fluid sample from the victim.5 The victim’s vaginal swab, which tested positive for sperm and prostatic acid phosphatase, had been rendered useless for further testing when three months after submission, it was removed from the freezer and stored at room temperature. The trial court excluded the vaginal swab test results because of the prosecution’s failure to preserve the evidence but allowed into evidence the positive test results from the anal swab even though the entire swab sample was consumed by the prosecution testing. Between pretrial hearing and trial, three defense experts disagreed about the methodology used to test for prostatic acid phosphatase and maintained that the prosecution could have preserved some sample. Finding that it was necessary to consume the sample in testing and that the state analyst never acted in bad faith, the California Supreme Court went on to say, “the prosecution is allowed to investigate and prosecute crime, and due process does not require that it forego investigation in order to avoid destroying potentially exculpatory evidence.” People v. Griffin, 46 Cal.3d 1011 at p. 1021.

An application of an Ake analysis favorable to the prosecution is found in Utah v. Bakalov, 1999 UT 45, 979 P.2d 799 (Utah 1999). Also a felony murder wherein the underlying felony was rape, in Bakalov, the vaginal swabs taken from the victim were not submitted for DNA or other blood type testing because of the small sample size and because dye used to test for the presence of sperm destroyed the sample. The Utah Supreme Court found that, as the State had not linked the sperm found to the defendant through biological evidence (the State submitted only testimony that sperm had been found), the vaginal swab evidence was not “critical.” The Court went on to say that an analysis must include a determination that “the evidence the defendant does not have access to could induce a reasonable doubt in the minds of enough jurors to avoid a conviction.” Utah v. Bakalov, 1999 UT 45 at 41.6

Investigators, doctors and scientists may investigate cases aggressively as long as they act in good faith. During the discovery process, prosecutors in both cases, disclosed in their initial response that there was no evidence available for testing. Both prosecutors developed records that demonstrated the good faith of the investigators’ conduct. In sum, the best practice for successful discovery is clear communication between the analyst and the prosecutor before the commencement of the case thus enabling the prosecutor to create a clear, consistent record about evidence availability.

3 The defense attorney had received some discovery after going to the prosecutor’s office.

4 Citing Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1962)

5 Prostatic acid phosphatase is contained in seminal emissions.

6 For quotation language see Gray v. Rowley, 604 F.2d 382 (5th Cir. 1979).

1 A number of cases, including Youngblood, cite Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1962) as authority for the prosecutor’s ethical responsibilities in discovery.
2 For the entire content of the defense discovery pleading, click here.
3 The defense attorney had received some discovery after going to the prosecutor’s office.
4 Citing Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1962)
5 Prostatic acid phosphatase is contained in seminal emissions.
6 For quotation language see Gray v. Rowley, 604 F.2d 382 (5th Cir. 1979).