Access to Witnesses and Evidence

A criminal defendant's right to access witnesses and evidence is essentially the right to present a defense.  The accused should expect to be heard, present evidence that is material to her defense, compel witness testimony, and counter the evidence presented by the prosecution.

RIGHT TO DISCOVERY

Discovery is a legal term that refers to the process through which litigants exchange information.  Criminal discovery is governed by Rule 16 of the Federal Rules of Criminal Procedure, The Jenks Act, Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). 

The right to discovery is even more critical if a defendant is detained prior to trial.  “[I]f a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense.” Barker v. Wingo, 407 U.S. 514, 533 (1972).  It is therefore important that criminal defendants be granted access to discovery as early as possible so that they are not disadvantaged by long periods of pretrial detention and short periods of trial preparation.

RIGHT TO COMPULSORY PROCESS

A “pillar of our adversarial system, [the Compulsory Process Clause] . . . ensure[s] that justice is done,” by providing a process “for the production of evidence needed either by the prosecution or by the defense.”  U.S. v. Nixon, 418 U.S. 683, 709 (1974). Intimidation and fear prevent witnesses from coming forward or being willing to testify truthfully; current technology has altered the ways witnesses can be located and contacted, increasing the risks of such intimidation. However, innovations in technology may also provide a means by which to enhance witness protection. Additionally, while it is easy to understand how early access to a lawyer and investigator can improve an accused’s access to vital witnesses and evidence, many state and local governments are remiss in this regard, creating a need for education and training on the system-wide benefits of providing immediate access to a lawyer and investigative resources and related best practices.

If you are interested in obtaining Training and Technical Assistance (TTA) related to strengthening Sixth Amendment protections in your jurisdiction, click the link below.

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ACCESS TO WITNESSES AND EVIDENCE RESOURCES

CASES

• Washington v. Texas, 388 U.S. 14 (1967)
• Chambers v. Mississippi, 410 U.S. 284 (1972)
• Taylor v. Illinois, 484 U.S. 400 (1988)
• Brady v. Maryland, 373 U.S. 83 (1963)
• Giglio v. United States, 405 U.S. 150 (1972)
• U.S. v. Nixon, 418 U.S. 683 (1974)

STATUTES & RULES

• Jencks Act, 18 U.S.C. § 3500
• Fed. R. Crim. P. 16

REPORTS AND STUDIES

• Predicting and Preventing Wrongful Convictions, National Institute of Justice (March 2013)
• A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases, Federal Judicial Center (February 2011) [see appendices]
• Brady v. Maryland Material in the United States District Courts: Rules, Orders, and Policies, Federal Judicial Center (May 2007)
• National Registry of Exonerations

LAW REVIEW ARTICLES

• Marc Allen, Non-Brady Legal and Ethical Obligations on Prosecutors to Disclose Exculpatory Evidence, National Registry of Exonerations (July 2018)
• The Right To Present A Defense by Mark Mahoney, New York State Asssociation of Criminal Defense Lawyers, Superstar Trial Seminar 2016.
• Janet Moore, Democracy and Criminal Discovery Reform After Connick and Garcetti, Brooklyn Law Review Vol. 77 No.4 (Summer 2012)
• Ellen Yaroshefsky, New Orleans Prosecutorial Disclosure in Practice After Connick v. Thompson, The Georgetown Journal of Legal Ethics Vol. 25:913 (Fall 2012)
• Joel B. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies that Prove that Assumption Wrong, 80 Fordham L. Rev. 537 (November 2011)
• Ellen Yaroshefsky, New Perspectives on Brady and Other Disclosure Obligations: What Really Works?, Cardozo Law Review, Vol. 31 No. 6 (June 2010)
• Ellen Yaroshefsky and Jennifer Blasser, Report of the Working Groups on Best Practices 

​NEWS ARTICLES

• The Epidemic of Brady Violations, By Jessica Brand, The Appeal, April 25, 2018.

OTHER LEGAL SOURCES

• Justice 101: Discovery, United States Department of Justice, Offices of the United States Attorneys.
• United States Department of Justice Justice Manual.
• "Supplemental Guidance for Prosecutors Regarding Criminal Discovery Involving Forensic Evidence and Experts," Deputy Attorney General, January 5, 2017.
• “Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group," Deputy Attorney General, January 4, 2010.
• “Requirement for Office Discovery Policies in Criminal Matters,” Deputy Attorney General, January 4, 2010.
• "Guidance for Prosecutors Regarding Criminal Discovery," Deputy Attorney General, January 4, 2010.

BLOGS, VIDEOS, WEBINARS, PODCASTS

What is the importance of the right to compulsory process and confrontation

University of Richmond Professor Henry Chambers as he discusses how the 5th, 6th, and 8th amendments protect rights within the judicial system. In this video, Professor Chambers explains the importance of the right to compulsory process and confrontation.

THE BRADY RULE

The Brady Rule: VICE News Tonight on HBO

Last week the Supreme Court heard a case about a rule called Brady that basically says that in criminal cases the prosecution team must turn over all relevant evidence they find that could help the defense team. This is commonly called “Brady evidence.”

Brady v. Maryland and the exculpatory evidence rule

NPC's Prof. Sophiea Bailey discusses the prosecutions' responsibility to provide defense counsel with evidence that tends to show innocence, arising from the important Supreme Course decision in Brady v. Maryland, 373 U.S. 83 (1963).