Discovery Delayed is Justice Denied: Discovery Delays in Misdemeanor Cases
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Justin A. Bowles
“Justice delayed too long is justice denied.” – Dr. Martin Luther King, Jr., Letters from Birmingham Jail
Discovery, the right to have all the evidence the State has, is fundamental to the criminal justice system; it defines the universe of a case and the ground on which the battle of a case will be fought at trial. In the criminal context, and especially in misdemeanor cases, most discovery is provided by the State. The arresting officer will usually write an affidavit of probable cause and a police report. The officer will often wear a body camera and will collect physical evidence. If laboratory testing is required for evidence, the State will also provide laboratory reports. The defendant is entitled to review such evidence when the State decides to charge them with a crime.
In felony criminal cases, defendants are entitled to a preliminary hearing unless indicted by a grand jury, at which the State must demonstrate that there is probable cause to support the prosecution.[i] Additionally, all criminal defendants are entitled to a “speedy and public trial…”[ii]
In misdemeanor cases, there is no preliminary hearing or other set timelines outside of the constitutionally guaranteed right to a speedy trial. Therefore, the pace of a criminal proceeding in misdemeanor cases is often wholly decided by the State through discovery. If the State does not provide timely discovery, the defendant cannot engage in meaningful negotiations or strategize about the case. The foregoing creates a potential for significant unjustified delays unless clear rules provide consequences when the State fails to provide timely discovery.
Idaho Criminal Rule 16
Discovery in criminal cases in Idaho is governed by Idaho Criminal Rule 16 (“ICR 16”). Among other requirements, ICR 16 provides clear timelines to keep criminal cases moving and for the State to provide timely discovery to criminal defendants. ICR 16(b) permits a defendant to file a written request for discovery to the prosecutor. Pursuant to ICR 16(f)(1), the party on whom a discovery request is served must provide a written discovery response within 14 days. If a party does not provide discovery within 14 days, ICR 16(f)(2) states:
The rule is straightforward. If a party fails to provide a timely response to a request for discovery and cannot show good cause or excusable neglect, the court may impose sanctions. The standard provided by the plain text of Idaho Criminal Rule 16(f)(2) is reasonable. If a party fails to comply with a clear deadline and cannot demonstrate good cause or excusable neglect to justify its failure, then there is no reason why a court should not impose sanctions. The “good cause or excusable neglect” standard weeds out those cases in which a delay is justified, leaving only those cases in which the failure to provide a discovery response should be unacceptable.
However, the Idaho Supreme Court created a burden on criminal defendants before sanctions are imposed on the State. To impose sanctions, a court must also find that “the lateness of the disclosure so prejudiced the defendant’s preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial.”[iii]
The prejudice standard provided by the Court in Byington sounds reasonable. Ostensibly, it applies to both parties and creates a “no harm, no foul” rule that keeps one party from gaining a windfall. However, such a standard is not based on the text of ICR 16. Additionally, given the way that misdemeanor cases operate in the real world, such a standard will most often redound to the benefit of the State because the State is often the only party providing discovery. The rule already provides a “good cause or excusable neglect” outlet for situations in which a party can show that there is a valid justification for the delay. The prejudice standard allows the State to escape sanctions unless the defendant can prove an exceedingly specific harm.
The prejudice requirement created by the Idaho Supreme Court imposes a heavy burden on defendants to show prejudice and frees the State from any consequences for unjustified delays in providing timely discovery. Unless the defendant can show that their defense is prejudiced, the State is free to delay providing any discovery response, without good cause or excusable neglect, for a long as long as it wants. The State can effectively shelve a case for months without any sanctions.
Such has been the experience in my own practice. Since I started working as a misdemeanor public defender, I have experienced significant delays in getting discovery responses. In some cases, delays lasted months, continuances were permitted to allow for discovery responses, but no discovery responses were provided even then.
I have witnessed firsthand the harms that delays in misdemeanor discovery disclosures by the State can cause in misdemeanor cases. Such delays cause harm to defendants, to the courts, and to our system of justice. However, given the judicially created prejudice standard, such harms are not accounted for when a court decides whether to impose sanctions for discovery violations by the State, even when the State cannot show any good cause or excusable neglect for the delay.
Harm to Defendants
The State’s failure to provide discovery has worked harm on my clients that are not accounted for by the narrow prejudice standard. Criminal defendants suffer many harms during the pendency of a criminal case, which are only compounded by unjustified delays in receiving discovery.
My clients take time out of their lives to call or meet with me, and all I could tell them is that we still have not received the full discovery. My clients remain subject to bond requirements, pre-trial release conditions, and sometimes pre-trial custody, all while the State remains in violation of the clear timelines provided by ICR 16.
The requirements for timely trial preparation and exchanging discovery seems, at times, a double standard. The State can continue to delay, but if my clients fail to attend a pre-trial conference or other hearing, they risk a bench warrant. If my clients fail to meet the conditions of pre-trial release, release for which they must pay a fee, they risk a bench warrant. If my clients cannot afford to post bond, they wait in jail until the State gets around to meeting its discovery obligations. Time is a finite and precious resource. The State wastes the time of my clients when it fails to provide timely discovery because many cases can be resolved soon after I have all the information available to the State.
My clients also suffer under the cloud of a pending criminal case. While the State delays providing discovery, my clients are left with uncertainty, worry, and the stigma of a pending criminal charge. Imagine waiting for months for a legal process you do not fully understand and over which you have no control to run its course. Now imagine that the legal professional appointed to help you through that process must tell you over and over that they cannot resolve your case or determine whether trial is necessary because the entity prosecuting the defendant simply has not provided the evidence it has against them. Can you imagine how frustrating such a situation would be for indigent criminal defendants, many of whom have no experience with the legal system prior to being charged? None of the foregoing harms are accounted for by the prejudice requirement created by the Idaho Supreme Court.
Harm to the Courts
The State’s failure to provide timely discovery responses also works a structural harm on the courts. In Bonneville County, the pre-trial system for misdemeanor cases is conducted between attorneys using written pre-trial sheets. The prosecutor and the defense attorney file a one page pre-trial conference document, which tells the court whether the defendant requests a trial, whether one or both of the parties request a continuance, or whether a plea agreement has been reached. Continuances are agreed to in cases for a variety of reasons. Such a system has its benefits and drawbacks, but one of the unintended consequences is that it has enabled the State to delay providing discovery without adequate judicial scrutiny.
When the State fails to provide timely discovery and cases are continued multiple times, often without explanation by the State, court dockets become bloated with cases that could have been resolved much earlier. Judges are then left to handle routine matters in many more cases than is necessary, which wastes already scarce judicial time and energy. Court dockets are large enough without adding to them unnecessarily.
Harm to our System of Justice
The final harm is abstract, but no less important. The prosecutor in the modern American criminal justice system is imbued with nearly unfettered prosecutorial discretion. The prosecutor is empowered to enforce the law and seeks to hold criminal defendants accountable for breaking the rules of our society. Prosecutors are trustees of enormous government power. And yet, when it comes to ICR 16, prosecutors are permitted to violate the clear text of the rule without any good cause or excusable neglect. And yet, a judge’s hands are tied by a prejudice standard that fails to account for myriad harms such delays cause. How can any system which would tolerate such conduct from those empowered to enforce the law rightly call itself a system of justice?
Allowing well educated and professionally licensed prosecutors to delay discovery for no good reason while holding indigent criminal defendants to strict rules creates a double standard that erodes the integrity of our legal system. The clear text of ICR 16 provides a remedy, but the judicially created prejudice requirement has granted the State a reprieve by imposing a heavy prejudice burden on defendants.
The principle should be a simple one: If the State cannot prosecute a misdemeanor case in a timely fashion, then the State should not prosecute that case. The Idaho Supreme Court should reexamine its precedent regarding Idaho Criminal Rule 16 and the prejudice standard announced in Byington. The State must be held to account for unjustified discovery delays without an additional burden being placed on defendants to show prejudice. The current standard gives prosecutors enormous power to harm the lives of criminal defendants, to slow the operation of the courts, and to erode the credibility of our system of justice. We should abandon such a standard.
We must fundamentally rethink how court created standards provide prosecution-friendly outcomes that work continuing harms on criminal defendants, on the courts, and on our legal system. As officers of the court, as legal professionals, and as trustees of enormous government power, prosecutors must be held to a higher standard of conduct.
Justin A. Bowles is a public defender with the Bonneville County Public Defender’s Office. Justin grew up in Idaho Falls and is a graduate of Idaho State University and the University of Idaho College of Law. Prior to working as a public defender, Justin worked as a judicial staff attorney in Twin Falls and Ada counties.
[i] See Idaho Criminal Rule 5.1.
[ii] U.S. Const. amend. VI; Idaho Const. Article I, § 13; see also, Idaho Code Section 19-3501.
[iii] State v. Byington, 132 Idaho 589, 592, 977 P.2d 203, 206 (1998) (quoting State v. Olsen, 103 Idaho 278, 283, 647 P.2d 734, 739 (1982)).