South Carolina Criminal Defense Blog

In State v. Lawton, the S.C. Court of Appeals reversed the defendant's conviction because, wait for it . . . the prosecutor withheld Rule 5 material. (**cheers loudly**) The prosecutor used a surprise letter written from the defendant to his wife to impeach him when he testified - the state argued, and the trial judge agreed, that it was not relevant but was a "collateral matter having to do with the credibility of the witness," and therefore the state was not required to disclose it under Rule 5.

Under Rule 5, the prosecution must disclose 1) any relevant written or recorded statements of the defendant; and 2) any oral statements the prosecution intends to offer into evidence made by the defendant in response to questioning. The Court of Appeals held that the letter was a relevant written statement, and that Lawton suffered prejudice from the non-disclosure as it would have impacted his decision as to whether to take the stand:

The circuit court stated that the letter involved the credibility of Lawton, which was merely a collateral issue in the case and therefore not relevant within the meaning of Subsection (a)(1)(A) of Rule 5. While the court was correct that the letter impacted on Lawton's credibility, we disagree that it was not “relevant.” According to Webster's Dictionary, the meaning of “relevant” is “having a significant and demonstrable bearing on the matter at hand."[6] The circuit court utilized the following definition of relevance contained in Rule 401: “evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, SCRE. Under either definition, we believe the letter in question was clearly relevant and should have been provided by the State in response to Lawton's Rule 5 request.

Moreover, Lawton was prejudiced by the State's failure to turn over the letter before trial. Disclosure of the letter was clearly material to the preparation of Lawton's defense because it likely would have affected his decision to testify, a fundamental right. See Seabrook Island Prop. Owners' Ass'n v. Berger, 365 S.C. 234, 243, 616 S.E.2d 431, 436 (Ct. App. 2005) (stating the right to testify in criminal proceeding is essential to due process, and is a fundamental right). There is a reasonable probability Lawton would not have testified had he known the State possessed such strong impeachment evidence. The State's strategy in failing to disclose the letter and instead surprising Lawton with it during cross-examination clearly prejudiced Lawton.