Open file discovery

DC’s current discovery rules are like “trial by ambush.”

  • 9 Minute Read

DC’s criminal discovery rules, standards that control how the government and defense counsel exchange information about evidence and witnesses before trial, are more restrictive than those of other states, including our neighbors in Maryland and Virginia.  Even though prosecutors are obligated to turn over any evidence that can prove innocence or that some should not be punished for an offense, the limitations created by DC’s discovery rules effectively force some defendants to go to trial without knowing the specifics of the government’s case against them.  Organizations representing the courts, defense attorneys, and prosecutors have all called for a shift towards an open file discovery system, which allows for the automatic sharing of case-related information between prosecutors and defendants. Other jurisdictions, like Utah and Texas, have begun shifting towards a more equitable process that ensures defendants are prepared with all the information they need to face the charges against them.   DC should enact legislation to shift DC towards an open-file discovery process.

What you need to know

Discovery prevents “trial by ambush” and protects all parties’ rights in the trial process.

To begin preparing for trial, both sides engage in discovery. This is the formal process of exchanging information between the parties about the witnesses and the evidence they’ll present at trial. Discovery lets the parties know what evidence may be presented before the trial begins. As the American Bar Association notes, discovery is designed to prevent “trial by ambush,” where one side is not made aware of the other side’s evidence or witnesses until the trial, and therefore has no time to counter that evidence.  Civil and criminal discovery can include depositions, as is the case in Florida, which is an out-of-court statement given under oath by any person involved in the case; a subpoena or requirement that the other side produce books, records, or other documents for review; a request for a party to submit to a physical examination; or a request for a document to be submitted to determine if it is genuine. Discovery is a crucial step in the trial process, allowing attorneys on both sides to craft their theories of the case and build an argument. Without all the information, it would be like trying to assemble a puzzle without all the pieces.

Because the defense must request all the evidence against them, in DC, prosecutors have the upper hand in the process.

The local discovery rules, encompassed in Rule of Criminal Procedure 16 (“Rule 16”), are modeled on the federal rules. These rules outline and restrict what information the defense can obtain from the government before a trial.   DC operates under a “closed-file”  discovery system, which means the defense must specifically request certain pieces of evidence. The challenge is that defense attorneys are not automatically aware of the evidence the prosecution has and you cannot request something if you don’t know it exists.  The rules that apply around discovery in DC also do not specify how promptly the prosecution must respond to such discovery requests. Without a set timeline, defense attorneys may need to begin counseling their client or formulating a trial strategy without knowing what information is in the government’s possession or when they will receive it, meaning some defense teams may not receive the full information until the trial draws near.

DC is one of 18 jurisdictions in which the government is not required to disclose its list of witnesses to the defense ahead of trial.

DC’s closed-file discovery rules limit what prosecutors must turn over to the defense.

According to the Center for Justice Innovation, in DC, 11 out of 22 types of materials that are commonly part of discovery, e.g.a list of trial exhibits, testimony of expert witnesses, and cooperation agreements between defense and prosecutors to exchange information,  are not required to be disclosed under DC’s discovery rules.  A defense attorney may request certain information from the government, such as a defendant’s prior statements to law enforcement or a defendant’s criminal record. Rule 16(a)(2) stipulates that prosecutors are not required to provide certain reports from “government agents” like police officers, disclose their list of witnesses before trial, or turn over witness statements until the witness has testified on direct examination. These carve-outs are justified based on witness safety, but in practice, they often deprive defendants of insight into critical components of the government’s case. By resting the authority to deny evidence requests of this kind solely with the prosecutor, the practice creates time-consuming delays as defense attorneys are forced to challenge the prosecutor’s withholding of evidence in court. 

Redaction of information through protective orders further disadvantages the defense.

In criminal procedure, a protective order can redact sensitive information from discovery materials, like the names of a potential witness.  In addition to discovery not being automatic and open, the USAO-DC can redact material without first seeking permission from the court, and insist on a protective order before complying with its obligations to disclose, even when those disclosures are exculpatory.  The defense, therefore, faces barriers to building a case because it is unclear who the witness is.

States have more open discovery rules.

In sharp contrast to DC, of the 22 types of materials that could be disclosed as part of discovery, Maryland and Virginia, respectively, require 17 and 15 types to be shared as part of discovery.  DC only requires 11. Maryland’s discovery rules require prosecutors to make certain disclosures to defense attorneys “without the necessity of a request” and within thirty days of the appearance of counsel or the defendant’s first appearance. Maryland prosecutors must disclose witness lists and provide the defense with details about surveillance and methods of pretrial identification of the defendant.  Virginia recently expanded its criminal discovery rules, which previously required little more of prosecutors than handing over exculpatory information, and now requires disclosure of government witnesses and all relevant police reports to be included in pretrial discovery.   Utah’s legislature enacted a joint resolution amending the rules of discovery requiring prosecutors to provide defendants with any evidence they relied on to file charges within five days of filing and all future evidence on a rolling basis as it becomes available. To enforce the rolling discovery process, Utah legislation authorized the courts to use their discretion in implementing sanctions against prosecutors who fail to comply with the orders.

An open file discovery system would be more efficient and fair and reduce court challenges related to evidence.

Unlike DC, some states and jurisdictions use an “open-file” system of discovery, which allows for the automatic sharing of case-related information between prosecutors and defendants. An open-file system creates a more effective and streamlined discovery process for all parties. It eliminates time-consuming procedural steps, such as filing a motion or holding a hearing,  which can divert prosecutors, defense attorneys, judges, and clerks from more substantive work. An open-file system also helps take the discretion out of criminal discovery by lowering the risk of error that is present when attorneys must decide what evidence to disclose on an item-by-item basis. Instead, the defendant automatically receives access to unprivileged information.   The former Attorney General for the District of Columbia said,  “more open discovery may also have an important effect on decreasing the amount of litigation regarding discovery issues. OAG welcomes the discussion on any reform that makes the judicial process fairer and more efficient.”

Open file discovery helps crime labs collect and analyze forensic evidence.

DC’s Crime Lab was established to increase the speed and strengthen the expertise and capacity to examine forensic evidence. However, the lab has faced multiple setbacks in its operations, leading stakeholders to lose trust in the evidence processed.  Reforms that bring more clarity to discovery disclosures of forensic evidence are also beneficial to stakeholders beyond prosecutors and defense attorneys.  The reliability of evidence was strengthened in Texas after the state opened its discovery process through the Michael Morton Act, which required prosecutors to open nonprivileged files to defendants and keep records of disclosed evidence. The head of the Houston Forensic Science Center told the District of Columbia’s Committee on the Judiciary & Public Safety: “While [proactive disclosure obligation] may seem on its face to be an onerous requirement, my experience has been that it actually makes the life of the laboratory easier when it is free to release information more completely and without questions of discovery orders.”

National experts have called for a shift towards open file discovery.

The National Association of Criminal Defense Attorneys has drafted model legislation implementing an open-file policy. Criminal defense attorneys would benefit from open-file discovery, as they’d be better able to represent their clients. Fair and Just Prosecution, a network of prosecutors across the country, has also recommended open-file policies as beneficial to both sides in criminal trials, pointing out that open-file policies bolster the integrity and efficiency of prosecutors’ offices. 

There are legislative options available to shift DC towards open-file discovery.

DC has reform models available if it wants to strengthen how discovery is handled.   The District could implement an open-file system and pass model legislation to meet that goal, as offered by the National Association of Criminal Defense Lawyers.  If DC maintained a closed-file system, it would need to increase defendants’ access to critical pretrial information. For example, if DC adopted the American Bar Association’s model discovery rules, prosecutors would be required to make a wide range of disclosures, including police reports and witness information, within fourteen days of filing a charging document.  In 2015, former DC Councilmember Mary Cheh introduced the Police and Criminal Discovery Reform Amendment Act, which would have expanded the types of information available to defense attorneys.  

Legislative changes are needed because rule changes related to disclosure may not be sufficient.

DC should also legislate or establish through law the framework for open file discovery, rather than solely update the existing rules. Efforts to bolster the Brady Obligations rules have fallen short in practice.   The more public legislative process allows all sides on an issue to comment and challenge each other’s perspective to create a stronger law, in contrast to a court rule change process, where opinions cannot be debated and comments are sent by email.

WHERE TO LEARN MORE

Our Solutions

DC should pass the Police and Criminal Discovery Reform Amendment Act with amendments to bring it into alignment with model legislation by:

  • Requiring automatic pretrial disclosure of the names and contact information of government witnesses, subject to reasonable exceptions for witness or confidential informant safety
  • Requiring automatic pretrial disclosure of police reports
  • Subjecting body camera footage and electronic or physical surveillance information to automatic disclosure
  • Subjecting grand jury transcripts to automatic discovery
  • Along with the ABA recommendations, set discovery to start within fourteen days of filing a charging document

special thanks

Preston Marquis ★ Natalie Kirchhoff ★ Mary Zenger ★ Kathryn Boothe

Last Updated on November 1, 2023.

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