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“Trial by ambush” is a term that every criminal defense practitioner in D.C. Superior Court knows too well. What is it? Imagine this: Sixty potential jurors have entered a courtroom and have been informed that the person sitting next to you is charged with murder. The assistant U.S. attorney rises to her feet and begins to rattle off the names of the potential witnesses against your client. Of the 14 names she recites, you have never heard of 10 of them. By opening statements you still have no idea what these witnesses will say. Is this fair? If you are the accused, or the person defending the accused, certainly not! In an adversarial system where the accused is expected to battle for his liberty, he often does this in total ignorance of the witnesses whose words the government will use to convict him. Currently, D.C.’s criminal discovery statute does not contain a provision mandating the pretrial disclosure of government witness and their statements. Many have advocated changing this law to include such disclosure — which I certainly support. However, the legislative process to implement these changes will be a long road. What do we do in the meantime? I propose that the U.S. Attorney’s Office implement an “open file discovery” policy. OPENING DISCOVERY This is a process in which the U.S. Attorney’s Office would voluntarily disclose, among other information, the names and statements of witnesses they intend to call at trial or at a hearing to prove the government’s case in chief. With these materials in hand, the defense attorney is better able to assess the strength of the government case and to properly advise her client as to the plea offer. There is no provision in the current statute that prevents such a voluntary disclosure. Open file discovery is not a novel practice in D.C. Superior Court. In a few cases, the U.S. Attorney’s Office has disclosed witness names and statements prior to trial. Why? Usually in the hope of resolving a case short of trial. The problem with this current practice is that it is discretionary and arbitrary. It often relies on the relationship of the lawyers involved, or some other subjective element. A defendant — particularly an indigent defendant who did not choose his counsel — should not be punished because of the relationship (or lack of one) between his counsel and the government prosecutor. An expanded practice of open file discovery would create a uniform discovery practice. It would ensure that all defendants are treated equally and fairly in discovery matters, regardless of the prosecutor or defense counsel involved in the case. And expanding this practice would resolve more cases well short of trial. Under current practices, the administration of justice is fraught with unnecessary and avoidable delay. Opponents of open file discovery argue that the majority of felony cases results in pleas. This is true, but it misses the point. On any given day on a Superior Court felony calendar, many more cases are set for trial than can actually be tried. What often determines the case that goes to trial is not which one has the most contested issues, but which one has been in the system the longest, or the one where the defendant is incarcerated. What happens to the other cases? Most are continued to another day in the future, to await the same process again. This practice unnecessarily burdens the court’s calendar and plays havoc with attorneys’ schedules. Under the current system these cases linger, often making it to numerous calendar days before being resolved by trial or by plea bargain. An open file discovery system could help bring some much-needed order to this situation. It would allow a defense lawyer to truly assess the government’s case and advise his client accordingly, resulting in fewer cases set for trial. Additionally, the cases would be resolved much earlier in the litigation process, meaning there would be fewer cases set for trial for a given day. SHORTENING THE TRIALS One criticism of jury trials in Superior Court is that they are too long. Trials are often prolonged because of midtrial delays tied to information gleaned from witness statements or other witness-related issues. The witness statements often include lengthy grand jury testimony and police notes and reports. In some situations, counsel is given witness statements the night before. In others, counsel is literally forced to read and digest the information while the witness is on the stand or during a short break before cross-examination begins. Sometimes counsel is given a witness statement right before that witness testifies. In these circumstances, it is impossible for counsel to investigate the veracity of statements or determine whether any biases exist that could affect that witness’s testimony. As a result, cross-examination becomes a protracted affair instead of an efficient attempt to meet the government’s case, allowing the jury to come to a reasoned and informed decision. With open file discovery, trials could be tailored to contested issues, shortening the trials. First, it would be clear from pretrial materials which issues would be contested at trial. Secondly, with additional time, lawyers would be better prepared to test the accuracy and credibility of the government’s witnesses. Third, shortening of trials would ease judges’ calendars, allowing for more cases to be resolved in a shorter period of time. And finally, shorter trials would make a juror’s experience less unpleasant, because less of his time would be spent in Superior Court . . . waiting. Opponents of open file discovery also argue that disclosure of witness names and statements will lead to an increase in witness tampering. In a majority of cases, this simply does not apply. In all cases, except where the victim is a juvenile, the complainant is named in the charging document. In those cases, it is highly unlikely that disclosure of the complainant’s statements would lead to tampering where otherwise it would not occur. Even in cases where the prosecutor believes that disclosure would jeopardize the safety of the witness, open file discovery should not be precluded. During pretrial discovery, the government could redact any identifying information to address safety concerns. Redactions are not new to Superior Court. Currently, police reports that are turned over in discovery have witness names redacted. Further, the government could move for a court-issued protective order, preventing the defense counsel from disclosing the name and statement of the witness until commencement of the trial. Another argument advanced against open file discovery is that it is a one-way street; the government gives, but receives nothing in return. This need not be the case. Open file discovery should apply to the defense as well. In cases where the defense intends to call a witness, the defense should voluntarily disclose the witness’s name and any statements. This would address any unfairness due to surprise. Again, this is not new. Currently, by statute, when a defendant files alibi notice, upon the request of the government the defense must disclose the name and address of any witness the defendant will rely on to establish an alibi. Open file discovery would merely expand this practice. Additionally, what the prosecution would get is a more efficient and fair system of justice — something every public servant should desire. Can open file discovery work in Washington, D.C.? Let’s look at a neighboring jurisdiction, Prince George’s County. In Maryland, the state’s attorney is mandated to disclose upon request the name and address of each person the state intends to call as a witness at a hearing or trial to prove its case in chief or rebut alibi testimony. The applicable statute does not mandate disclosure of witness statements. However, in Prince George’s County, the discovery practice goes beyond the statute. Upon written request, the prosecutor usually turns over everything in the detective’s file, often including the detective’s notes. There is much similarity between the cases, the witnesses, and the defendants in Prince George’s County and District of Columbia. Thus, there is little reason to believe the same practice would not work here. HELPING LAWYERS GET ALONG Is there a correlation between the type of discovery practice and the relationship between the opposing counsel? Yes. Many who practice in both Prince George’s County and the District of Columbia state emphatically that the relationship between the defense bar and the prosecution is much better in PG than in the District. Why? There is less contention among the parties fueled by discovery issues. There is a feeling of openness and little fear that either side is hiding the ball. However, in the District of Columbia, the majority of litigation focuses on discovery. This sort of lawyering has created a very distrustful environment. Open file discovery is not the ultimate solution to ending that corrosive environment. However, it is a step in the right direction. It facilitates better advocacy, better relations, and better judicial administration. Marlon C. Griffith is the deputy chief of the Serious Felony Section at the Public Defender Service of D.C. and a member of the Criminal Law and Individual Rights Steering Committee of the D.C. Bar. The opinions expressed here are his own. Griffith can be reached by e-mail at [email protected].

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