Define, compare, and contrast formal and informal discovery.

Question

What will be an ideal response?

Answer 1

The informal and formal exchange of information between prosecution and defense is referred to as discovery. Laboratory reports, statements of witnesses, defendants' confessions, and police reports are examples of information that prosecutors often gather and defense attorneys want to know about before trial. Discovery seeks to ensure that the adversary system does not give one side an unfair advantage over the other. In contrast to the very broad power of discovery in civil proceedings, "there is no general constitutional right to discovery in a criminal case" (Weatherford v. Bursey, 1977, p. 559). However, a series of court decisions, statutes, and court rules provide the framework for the criminal discovery process. Discovery in federal cases is governed primarily by sections of Rules 12, 16, and 26 of the Federal Rules of Criminal Procedure. Collectively, these rules provide a defendant, upon motion, rights to discovery concerning tangible objects; tape recordings; books, papers and documents that are relevant to the case; the defendant's prior criminal record, if any; the results or reports of physical examinations, scientific tests, experiments, and forensic comparisons; and summaries of any expert testimony that the government intends to offer in its case-in-chief. The rules often afford the government similar reciprocal discovery upon its compliance with the request of the defendant. In state courts, the type of information that is discoverable varies considerably from state to state. Some jurisdictions allow only limited discovery where other jurisdictions take a middle ground allowing discovery of confessions and physical evidence is a matter of right, but discovery of other items is more difficult. Finally, a few states have adopted liberal discovery rules: A presumption strongly in favor of prosecutorial disclosure exists, with only certain narrow exceptions. Because of growing discontent with the discovery system, American courts have cautiously expanded mandatory disclosure by the prosecutor, especially with respect to disclosures of exculpatory evidence and impeachment material. Exculpatory evidence is any evidence that may be favorable to the defendant at trial either by tending to cast doubt on the defendant's guilt or by tending to mitigate the defendant's culpability, thereby potentially reducing the defendant's sentence. Impeachment evidence is any evidence that would cast doubt on the credibility of a witness. Some prosecutors have an office policy prohibiting assistant prosecutors from disclosing any information not required by law. But it is more usual that assistant DAs voluntarily disclose certain aspects of the state's case to defense attorneys. Such informal discovery operates within the norms of cooperation of courtroom work groups. Defense attorneys who maintain good relationships with prosecutors and are viewed as trustworthy receive selected information about the case. Conversely, defense attorneys who maintain hostile relationships with the prosecutor, who represent clients who are viewed as troublemakers, or both find the prosecutors holding the cards as tightly to the vest as the law allows. Informal prosecutorial disclosure does not stem from sympathy for the defendant, but rather from a long-held courthouse theory that an advance glimpse at the prosecutor's case encourages a plea of guilty. From the perspective of the prosecutor, defendants often tell their lawyers only part of what happened; therefore, the defense attorney who learns what evidence the prosecutor possesses can use it to show the defendant that contesting the matter may be hopeless. Informal prosecutorial discovery greatly encourages pleas of guilty, at least when the prosecution has a strong case.