Caldwell and the problem with discovery violations
State v. Caldwell, decided by the South Carolina Court of Appeals last month, essentially reaffirmed that 1) it is OK for the prosecutor to wait until the last minute to give discovery materials to the defense; and 2) it is OK for prosecutors to make plea offers before providing complete discovery, and then take the offer off the table after full discovery has been received:
B. Failure to Comply with DiscoveryCaldwell further asserts the trial court erred in admitting the alleged statements made to Officer Porter because the State violated Rule 5(a)(3), SCRCrimP by failing to properly disclose the substance of the alleged statements in a timely manner. We find no error.
“Upon request by a defendant, the prosecution shall permit the defendant to inspect and copy or photograph: . . . the substance of any oral statement which the prosecution intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a prosecution agent.” Rule 5(a)(1)(A), SCRCrimP. “The prosecution shall respond to the defendant’s request for disclosure no later then thirty (30) days after the request is made, or within such other time as may be ordered by the court.” Rule 5(a)(3), SCRCrimP. A Rule 5 violation is not reversible unless prejudice is shown. State v. Landon, 370 S.C. 103, 108, 634 S.E.2d 660, 663 (2006).
We find no prejudice to Caldwell such as would entitle him to suppression of the statements. The statements, as referred to in Officer Porter’s supplemental report, were admittedly turned over to the defense in April 2006. Caldwell contends the State’s failure to disclose the alleged statements until that time prejudiced him because, after that point, the opportunity afforded to him to plead to only a single indictment had passed. However, a defendant has no constitutional right to plea bargain. State v. Chisolm, 312 S.C. 235, 237, 439 S.E.2d 850, 852 (1994). Thus, Caldwell was not prejudiced by the delayed disclosure. See Chisolm, 312 S.C. at 237-38, 439 S.E.2d at 851-52 (holding, even though assistant solicitor acted inappropriately by communicating with a party known to be represented by counsel and by surreptitiously tape recording the conversation, assertion appellant was prejudiced as evidenced by the absence of plea negotiations was insufficient inasmuch as a defendant has no constitutional right to plea bargain).
Defendants in civil cases have far more discovery rights than defendants in criminal cases do, and more remedies for violations of the discovery rules. In a civil case, the opposing party has 30 days to respond to discovery requests. If there is no response, you file a motion to compel and the Court will order the production of discovery. If discovery is not provided, the Court can make the non-producing party pay court costs, exclude evidence from the trial, or dismiss the civil action.
In a criminal case, the prosecution has 30 days to provide discovery once it has been requested. If there is no discovery provided within 30 days, no-one cares. If the discovery is provided on the eve of trial, your remedy may be a continuance if you don't mind waiving your client's right to a speedy trial. More likely, the judge will tell you to take a few minutes and review the materials. So long as you have it when trial is starting, there is no prejudice to your client.
Prosecutors routinely make plea offers and expect you to accept or deny them without the benefit of complete discovery - this is the norm in drug distribution cases or any case with a confidential informant. I have had prosecutors tell me, the plea offer is X but if I have to go to the trouble of putting together this discovery you are asking for, then the plea offer is off the table. Although I discuss this situation with my client, my answer is usually get me the discovery and keep your plea offer.
Part of the problem is defense attorneys are not insisting on complete discovery, and therefore prosecutors are not expecting defense attorneys to insist on complete discovery. Prosecutors expect defense attorneys to plead their clients, because that is what most do. Prosecutors expect defense attorneys to not insist on complete discovery, because that is what they are used to.
If you don't have discovery materials within 30 days, send a letter to the prosecutor and remind them. When you get the first discovery response, send another asking for everything else they didn't give you in the first response. Independently investigate the facts of your client's case so you know what the prosecutor or the police are hiding - don't depend on the government's investigation to make your client's case.
If they don't give you the discovery file a motion to compel. Prosecutors get pissed off when you file a motion to compel discovery - the reason is because no-one files motions to compel so they don't expect it. If they are not turning over discovery materials, put it in front of a judge before the day of trial. Prosecutors assume if you want discovery you are going to trial, and they start getting defensive - but you cannot advise your client to plead guilty or to take his or her case to trial until you have seen all of the evidence. If you do advise a client to plead before they have seen all of the evidence, it is grounds for PCR and the conviction could be overturned anyway.
