Wednesday, August 26, 2015

Does defense counsel have a duty to provide evidence, originally produced by the prosecutor, to the prosecutor because the prosecutor lost the original?

Last week I read a story in the ABA and I wonder what everyone thinks.  Here are the facts, in a nutshell:

Prosecutor gives defense counsel a copy of a video that supports the prosecution's case.  Because of the video, Prosecutor has a strong case against defendant.  But later, somehow, Prosecutor loses the original of the video and asks the judge to order defense counsel to make a copy available to the prosecution so the prosecution can use it against the defendant.  Defense counsel did not want to provide the video (presumably arguing it was not her job to help the prosecution), and the judge replied counsel's conduct violated "the spirit of" the rule that forbids a lawyer to “unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.”

I am not so sure about this.  I think the spirit of that rule implies the person withholding the information has a duty to disclose it and that the other side does not know it exists.

What do you think?  Should the judge grant the request?  Does defense counsel have an obligation to produce the video, thus helping the prosecution build the case against his or her own client?

Here is the link to the story.


  1. I do believe that defense counsel should produce a copy of the video. Yes, our system is adversarial, but the premise of the adversarial idea is that -- somewhere in the melee of striving between the parties -- truth will out.

    Moreover, free exchange of discovery will save taxpayer funds: if "reverse" discovery is not automatic, I can imagine that many prosecutors' offices will create elaborate systems to safeguard videos, documents, & other evidence; the systems themselves would be an added cost. Perhaps deputies will even have to "log" or "check out" such evidence before reviewing the same. This would all increase the time spent on each case, thereby further adding to taxpayers' costs. Instead, requiring defense counsel to make the originally discovered evidence available for duplication imposes minimal costs on the defense and will preserve the common wealth.

    A fallback position, however, could require the state/people/commonwealth (and I'll use "state" for shortness's sake) attorney to overcome a burden showing that the loss or destruction of the evidence was not due to the state's actions or negligence (or that of its agents or employees). In 2006, for example, the prosecutor's office where I was a deputy was literally destroyed by floodwaters. Our original files were lost; the destruction was not caused by the state or its agents (defense counsel were magnanimous in providing "reverse" discovery immediately afterwards). Granted, this regime may still create discovery disputes and -- again, in my opinion -- is not ideal, but it would at least short circuit challenges where state action or negligence exists.

  2. As the defense lawyer argues, the law doesn't require that the defense turn over evidence that they won't introduce at trial. I think everyone agrees this is a sound rule. Then how can the court require the defense attorney to turn over evidence not intended for court use merely because they received it from the prosecutor? [And what if the defense attorney lost said evidence? Should the client be punished for the conscientiousness of his attorney?]

    The decision is a blow to the attorney-client relationship. Could you imagine telling a client charged with a serious crime that the prosecution only a piece of incriminating evidence because his lawyer provided it?

    It's a serious enough issue that the attorney should have resisted, even if it meant going to jail. Unfortunate that the lawyer capitulated. Loyalty is the fundamental of legal ethics. ( )