The rules concerning criminal discovery introduced by the Illinois Supreme Court on 1 October, 1971, in addition to providing ample means for an accused person to discover the prosecution’s evidence, give the prosecution access to a wide variety of information in the hands of the defence. I investigated the new discovery procedures in Cook County, Illinois.
The requirements for discovery are contained in Rule 413 and fall into four categories: (1) the person of the accused; (2) medical and scientific reports; (3) defences; and (4) additional discovery.
The first category involves discovery in relation to the person of the accused. Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the accused, among other things, to: appear in a line-up; speak for identification by witnesses to an offence; be fingerprinted; pose for photographs not involving re-enactment of a scene; try on articles of clothing; permit the taking of specimens of material from under his fingernails; permit the taking of samples of his blood, hair and other materials of his body not involving unreasonable intrusion upon his person; provide a sample of his handwriting; and submit to a reasonable physical or medical inspection. For such purposes the prosecution may, upon notice, require the accused and his counsel to be present at a designated time and place. The rule states that none of these activities can be required of the accused in the absence of his counsel.
Second, certain reports are subject to discovery. Any reports or statements of experts, in the possession or control of counsel for the defence, are included. Examples are reports, results, and related testimony, concerning physical or mental examination of persons, or concerning scientific experiments or tests. Constitutional safeguards permitting, the rule enables a trial court, on written motion, to order that reports like these, or information about them, be made accessible to the State for inspection and copying. But those portions of reports containing statements made by the accused may be withheld if defence counsel does not intend to use any of the material contained in the report at a hearing or trial. It was decided in People v. Speck97 that these requirements did not violate the lawyer-client privilege. The self-incrimination question remains unresolved.
The third category of discovery by the accused involves the defences that he is required to disclose. The rule provides that, subject to constitutional limitations and within a reasonable time after the filing of a written motion by the State, defence counsel shall inform the State of any defences he intends to make at a hearing or trial. If within his possession or control, he is to furnish to the State: (a) the names and last known addresses of persons he intends to call as witnesses; (b) their relevant written or recorded statements, including memoranda reporting or summarizing their oral statements; (c) any record of criminal convictions known to him; and (d) any books, papers, documents, photographs or tangible objects he intends to use as evidence or for impeachment at a hearing or trial. The requirement that the defence counsel give notice of defences includes both “affirmative” defences, e.g., insanity, and “nonaffirmative” defences, e.g., consent to intercourse in rape cases. The notice may include alternative and inconsistent defences.
The scope of the final category, additional discovery, is entirely within the discretion of the court. Rule 413 provides that the court may order the defence to make additional discovery to the State where the State shows it to be material and reasonable.
Rule 415 provides that if, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order the party to permit discovery of material and information not previously disclosed, grant a continuance (adjournment), exclude such evidence or enter such other order as it deems just under the circumstances. It is further provided that wilful violation by counsel of an applicable discovery rule, or an order issued pursuant thereto, may subject counsel to appropriate sanctions by the court.
The discovery procedures adopted in Illinois are in line with the American Bar Association Standards but are wider than in most American jurisdictions, Canada, England or New South Wales. In the United States “notice of alibi” legislation has been enacted in 16 States. Fourteen States have also enacted legislation requiring notice of insanity and of the intention to raise the special pleas. In Canada, prosecutorial discovery by the accused in criminal cases, in the sense of disclosure forced by a sanction of inadmissibility, does not exist.98 There is in existence the judicially developed requirement of early disclosure of alibi evidence; but the sanction is restricted to judicial comment on the credibility of that alibi when not disclosed at an earlier time.
In 1974 the Law Reform Commission of Canada recommended that discovery by the defence should not be required. Rather, it contended that a formal discovery system in favour of the accused would itself encourage the defence to make discovery.99 I was advised by the Commission that an experiment in Montreal designed to prove this contention, had failed and that other alternatives were being considered. In England, legislation has been enacted requiring notice to be given of alibi evidence. Section 11 of the Criminal Justice Act 1967 (U.K.) requires a notice of intention to raise the defence of alibi, and details of the intended alibi evidence. Inadmissibility of the non-disclosed evidence and even of the alibi testimony of the accused is the sanction. In New South Wales notice of alibi is required to be given under section 405A of the Crimes Act, 1900, which is in terms similar to section 11 of the Criminal Justice Act 1967 (U.K.).
In New South Wales the issue is whether legislation should compel the defence to disclose to the prosecution information, additional to alibi evidence, to enable the prosecution to prepare for the defences and defence testimony expected to be presented at the trial.
Broadly speaking, there are two principal arguments in favour of more extensive discovery by the defence. Proponents of the first argument point to the general trend towards expansion of discovery in favour of the defence. It is argued that, as a matter of fairness, if discovery in favour of the defence has been expanded, this advantage ought to be balanced by a similar extension of discovery in favour of the prosecution. The second argument emphasizes the analogy between civil and criminal proceedings. It is put that, in civil cases, the adversary system works best if discovery is reciprocal and each party is as fully prepared as possible to counter the evidence of the other. This is suggested as a model for the criminal process which also operates in an adversary setting.
There is merit in these arguments. More extensive pre-trial discovery by the accused may reduce the use of surprise as a trial tactic; it may deter fabrication of defences and the presentation of perjured testimony; and it may avoid unnecessary litigation by giving the prosecution the opportunity to omit a piece of evidence which is clearly mistaken. However, to require more extensive discovery by the accused in advance of the trial would introduce a fundamental change to the nature of the criminal process. Its effect would be to compel persons accused of crime to assist the State in prosecuting them. In my submission, such an innovation would be generally unacceptable to the profession in New South Wales.100
I recommend that the defence ought not to be compelled, in advance of the trial, to disclose to the prosecution information additional to alibi evidence. I have recommended elsewhere in this report101 that, for long and complex criminal cases, District Courts and Supreme Courts should introduce a pre-trial hearing procedure similar to that now operating in the Central Criminal Court in London. This pre-trial hearing would, inter alia, provide an opportunity for the defence to make disclosures and admissions. The judge would ask defence counsel whether there were to be any formal admissions of facts or exhibits. That recommendation does not contradict the recommendation in this section that there should be no extension of discovery by the defence in advance of the trial. The issue under consideration here is whether the defence should be compelled to make discovery of matters additional to that of alibi. There should be no compulsion in the pre-trial procedure used for important and complex cases. The judge would merely encourage defence counsel to make formal admissions, if possible, so that the issues might be narrowed and the trial shortened.
Footnotes
97. (1968) 41 Ill. 2d 177.
98. Discovery, Working Paper No. 4, Law Reform Commission of Canada (1974), paras 64-69.
99. Ibid.
100. There are other objections to this innovation - for example, the problem of enforcement - but, as the innovation is unacceptable in principle, it serves no purpose to discuss them here.
101. Heading XI, pp. 47-49.
