Introduction

Ninth Circuit Judge Harry Pregerson has it right.¹  No matter what the case law may suggest, there is a right and a wrong way to conduct discovery.  The wrong way is to cling to the notion that the adversarial system should guide how prosecu­tors and defense lawyers approach their discovery duties.  The right way is to open a dialogue so that both sides can work cooperatively to ensure a fair trial.²

In her thoughtful article, Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule,³ Professor Kate Weisburd illu­mi­nates a serious concern in our current approach to criminal discovery.  Howev­er, the so-called due diligence rule, which denies a defendant a claim that he did not receive due process if the evidence prosecutors failed to produce was inde­pendently available to the defense, is but one concern about how discovery is han­dled.  Sadly, it represents more than a game of “hide and seek.”⁴  It represents a crim­inal justice system stuck in an adversarial model, even when constitutional standards require that prosecutors go outside their adversarial role to ensure that defendants receive a fair trial.

In this response to Professor Weisburd’s article, I hope to accomplish three things.  First, I would like to offer a perspective regarding Brady that might ex­plain why courts tend to embrace the due diligence rule.  Second, I try to suggest why American prosecutors have a difficult time transitioning from their adver­sarial roles to stewards of due process.  Finally, I offer a new approach to discovery.  It re­quires that both prosecutors and defense lawyers stop playing hide and seek.  If both sides are committed to a fair trial, we must shift from the adversarial system of dis­covery to a more collaborative effort.

I. Brady: It Never Was What You Thought

Many people think of the Brady rule as a discovery rule that requires prose­cutors to turn over all exculpatory evidence to the defense before trial.⁵  Close, but not true.  The U.S. Supreme Court has never tagged Brady as creating such a broad rule.  Rather, in Brady v. Maryland ⁶ and its progeny,⁷ the Supreme Court estab­lished an approach to analyze a case retrospectively to determine whether a defend­ant received a fair enough trial under general due process standards.⁸  A thoughtful prosecutor will heed the Court’s ruling and use the Brady standard to guide pretrial discovery, but Brady itself set a standard for when the failure to disclose evidence warrants a new trial.

A Brady violation occurs when (1) evidence is favorable to the accused because it is exculpatory or impeaches a government witness; (2) the prosecution fails to disclose such evidence, either intentionally or inadvertently; and (3) the defendant is prejudiced because the undisclosed evidence is material.⁹  Evidence is material if there is a reasonable probability that its disclosure would have changed the outcome of the proceedings.¹⁰  An essential aspect of Brady has always been the deter­mina­tion of whether the undisclosed evidence really would have made a significant dif­fer­ence in the case.¹¹

It is because Brady carries this prejudice requirement that some courts have de­vel­oped the so-called due diligence rule.¹²  The due diligence rule is an offshoot of a more reasonable concept that if the defendant had the exculpatory evidence at the time of trial, even if it came from a source other than the prosecution, it makes little sense to demand the retrial of the case.¹³  Much like the Supreme Court’s ap­proach in Strickland v. Washington¹⁴ for handling challenges to defense counsel’s behavior, the Court did not establish Brady as a mechanism by which to grade or second-guess prosecutors’ behavior.  Rather, it is a rule for courts to determine wheth­er a fundamental injustice has likely occurred.

Professor Weisburd might be right that structuring the rule in this way offers the opportunity to prosecutors who are so inclined to “game” the system.¹⁵  Indeed, a prosecutor could choose not to reveal evidence in hopes that if the violation is dis­cov­ered, the prosecutor could claim that the defense had alternative means of ob­tain­ing the information and thus that her choice could not have prejudiced the de­fendant.  However, it is unclear how often this actually occurs.  Instead, it is also plausible that prosecutors, not understanding the proposed defense case as well as their adversaries, do not identify what will turn out to be key exculpatory evi­dence.¹⁶  These prosecutors are then left to argue, after the fact, that there was no violation because not only did the defense know what would help their case, but the defense also had alternative or better access to that information.  In these cases, the due diligence rule becomes a safety valve for the courts.  Reluctant to grade pros­ecutors’ performances, judges can find that the undisclosed evidence was un­likely to be material because if it had been, the defense would have done a better job of obtaining access to it.

One of the reasons that judges are quick to embrace the due diligence rule is that it comports with general notions of how the American adversarial system works.  In an adversarial system, both sides zealously present their cause and, in the end, justice theoretically will prevail.¹⁷  Brady has always been the exception to that rule.¹⁸  It represents the odd position that a prosecutor has in the American crim­inal justice system.  As Justice Southerland famously said in Berger v. United States,¹⁹

While judges understand that prosecutors have a special position in the criminal justice system, they are still reluctant to require prosecutors to assume the job of defense counsel.²¹  Therefore, if defense counsel knows or should know of evi­dence favorable to the defendant, judges may be inclined to hold that she should exercise due diligence in ensuring that her client receives a fair trial.²²  From the court’s perspective, the goal is to make sure exculpatory evidence is available to be presented at trial should the defense choose to do so.  The goal is not to ask what might have been the fastest or most efficient way to get that evidence into the court.

In her article, Professor Weisburd does an excellent job of describing the corrosive effects of a due diligence rule.  She explains that the due diligence rule di­lutes prosecutors’ duties and sense of responsibility for disclosing exculpatory evi­dence.²³  The due diligence rule also leads courts to believe that defense counsel can rely on their clients to help them identify and access evidence that, in reality, is often not readily accessible.²⁴However, Professor Weisburd is also undoubtedly correct when she claims that prosecutors are not particularly good predictors of what evidence will help the defense or how and when defense counsel can access this evidence.²⁵  She states that prosecutors are not trained to think like defense lawyers and, without access to the defense strategy, are bound to make improper assumptions about both.²⁶  Un­fortunately, our adversarial system maximizes the opportunities for prosecu­tors to make such mistakes as defense lawyers are reluctant to share their strategies with prosecutors and prosecutors are inclined to discount defense strategies and dis­believe representations by defendants regarding their innocence.²⁷

Finally, Professor Weisburd is on firm ground when she points out that ex­cul­patory facts are not necessarily equal to exculpatory records and that defense counsel do not necessarily have equal resources to obtain exculpatory evidence, even if they become aware of it.²⁸  She correctly notes that in quality and admis­sibility, the prosecutors’ records might be better because witnesses are more likely to cooperate with government investigators.²⁹  The test for materiality under Brady, however, does not require that prosecutors disclose the best evidence to the de­fense.  It only requires that the prosecution disclose enough favorable evi­dence to af­ford the defendant a fair trial.³⁰  As a corollary, the due diligence rule embraces a belief that the defense need only be given fair access to exculpatory evidence, not that the evidence provided be the best evidence or all evidence on the issue.

The due diligence rule has garnered so much traction because courts are re­luc­tant to use Brady to overturn verdicts.  The materiality requirement under Brady directs the lower courts constantly to ask the following question: “What difference did withholding the evidence make?”  It is a small step from courts asking that question to asking, “If this evidence really was going to make such a difference, why didn’t the defense make a greater effort to obtain it?”  Brady’s focus on ma­ter­i­ality lends itself to courts probing the record and the actions of counsel to de­termine whether the requested evidence likely would have made a difference or whether the posttrial Brady claim is just the defense’s attempt at a second bite of the apple.

II. Prosecutors and Defense Lawyers Are Stuck in the Adversarial Process

Americans are fighters.  We fight crime.  We fight for our rights.  We fight injus­tice.  From its inception, the American criminal justice system was designed as an adversarial system—a fight between the prosecution and defense.  An “adver­sarial system conceives of criminal procedure as a dispute between prosecution and defense before a passive umpire.”³¹  By contrast, “the inquisitorial system conceives criminal procedure as an official investigation carried out by officials of the state in order to determine the truth.”³²

Under the purest model of an adversarial system, each side would find its own evidence, present that evidence, and dispute the other side’s evidence.  In fact, much of what prosecutors do falls within this model.  Prosecutors bring charges, present witnesses, cross-examine defense witnesses, and argue against positions taken by the defense.  While prosecutors and defense lawyers act as adversaries in the American criminal justice system, it has never been a purely adversarial model.  The reason for this is evident.  The Bill of Rights provides protection to defend­ants against the powers of government, especially within the adversarial process.  Many of the protections identified in the Bill of Rights are quite specific, such as the right to confront witnesses, the right to a public trial, the right to counsel, the priv­ilege against self-incrimination, and the right to a speedy trial.³³  Thus, a pure adversarial model would conflict with the system we have fashioned that recog­niz­es that defendants need additional protections against the government’s powers.³⁴

Prosecutors are expected to act within an adversarial model, except when it comes to discovery.  Brady redirects prosecutors toward a more inquisitorial mod­el.³⁵  Under the inquisitorial model of criminal justice, prosecutors and defense lawyers both work for the judge to determine the truth.³⁶  The adversarial roles of prosecutors and defense lawyers are dampened in favor of a cohesive system of law­yers, judges, and investigators charged with discovering the facts of the case and com­ing to an appropriate resolution.  More countries around the world em­brace some form of the inquisitorial model than they do the adversarial model, including the nations of Europe.³⁷  The inquisitorial model leads to more collab­ora­tion and ex­change of information because both sides are working for and under the auspi­ces of the decisionmaker.

A pure inquisitorial approach is not nearly a perfect model.³⁸  In fact, many countries with inquisitorial models are beginning to take on aspects of the adver­sar­ial model.³⁹  In an inquisitorial system, it is too easy for defense lawyers to become overly reliant on the prosecutor and court to obtain the evidence for them because, unlike the American system, the only pretrial discovery is that done by the court or by prosecutors at the court’s direction.⁴⁰

Nonetheless, if fused with current pretrial discovery practices in America, the inquisitorial model may offer practices in which Brady requirements would be a better fit.  An inquisitorial system fosters an atmosphere of greater communica­tion and collaboration.  Like it or not, prosecutors and defense lawyers are forced to work with each other because they both work in principle for the inquisitorial decisionmaker—the judge.⁴¹  It is not so much out of role for prosecutors to share evidence with the defense.  Brady requires that prosecutors deviate from the ad­versarial model when it comes to the handling of exculpatory evidence and act, at least for some purposes, as if they operate in an inquisitorial model.  At some level, the due diligence rule reflects a push back against this effort.  While pros­ecutors may be required to provide evidence to the defense if failure to do so will corrupt the court proceedings, defense lawyers are expected to stay in role by exer­cising due diligence to discover their own exculpatory evidence.

III. “What We Got Here Is Failure to Communicate”⁴²: Reform Discovery, and the Due Diligence Problem Will Take Care of Itself

While Professor Weisburd makes a compelling case for not allowing courts to invoke the due diligence “rule”⁴³ just because the defense could have hypo­thet­ically obtained evidence, her proposal treats only a symptom rather than the un­derlying problem with discovery in our current criminal justice system.  The biggest problem is a lack of cooperation in the discovery process.  While this is not true in every courthouse, prosecutors and defense counsel approach discovery in the same adversarial manner that they approach other aspects of their jobs.  They are willing to “play by the rules,” but are quick to attack if they perceive that the other side is manip­ulating those rules.⁴⁴  The adversarial model tends to lead the parties to act with suspicion, distrust, and reluctance to help.  What we need, however, is an open process where lawyers on both sides are working toward a common goal.

In criticizing current practices, Professor Weisburd argues that one of the key problems with the due diligence rule is that it does not recognize that de­fend­ants are often not in a better position to identify facts relevant to their defense.⁴⁵  Because this is the case, she argues prosecutors should not be excused from their Brady ob­li­ga­tions merely because the defendant could have shared with counsel underlying facts that are also reflected in the prosecution’s withheld exculpatory evidence.⁴⁶  The defense lawyer is seen as the “guiding hand” to effective representation of the defendant.⁴⁷

To really make Brady work, the prosecutor also needs the guiding hand of de­fense counsel.  It is defense counsel who has a better idea of what material in the prosecutor’s possession, or securable by the prosecutor, would help the de­fense’s case.  Rather than waiting to see if the prosecutor guesses correctly, it is far better to have the defense work collaboratively with the prosecutor to obtain the evi­dence.  Not only can defense counsel help identify materials that are currently in the prosecution’s file that may be exculpatory, but defense counsel can also edu­cate the prosecutor about what materials she should be looking for as she prepares for trial.

Collaborative discovery between prosecutors and defense lawyers has advan­tages even over so-called open-file policies, which purportedly provide the defense access to everything in the prosecutor’s files.  While touted as a fairer system of dis­covery, open-file policies have their problems.  First, when the policy is not truly open file because prosecutors intentionally or unintentionally do not include rec­ords from law enforcement files, defendants can be lulled into a false sense that they are actually getting access to all exculpatory evidence.⁴⁸  Second, even when prosecutors provide an open file to the defense, the open file may end up being a “discovery dump.”⁴⁹  One way to hide critical evidence is to give the defense so much evidence to look for that discovering the exculpatory evidence is like finding a needle in a haystack.

To avoid these practices, prosecutors and defense lawyers will have to find a way to communicate and embrace discovery practices more like those used in the inquisitorial system.  As one considers the details of such a process, it is worth an­tic­i­pating the objections that are likely to be raised.  First, it is not easy for prose­cutors and defense lawyers to trust each other during the discovery process.  This became evident to me during retreats organized by the U.S. Court of Appeals for the Ninth Circuit to repair the relationship between U.S. Attorneys and Federal Public Defenders.⁵⁰  When the retreats began, the level of distrust and animosity was palpable.  Defense lawyers bitterly complained of Brady violations and pros­ecu­tors were equally passionate in complaining that defense lawyers played a game of “gotcha” when prosecutors failed to disclose evidence that defense counsel had not initially asked for but later claimed to be exculpatory.

Efforts to find a collaborative response to discovery issues were initially met with suspicion and skepticism.  Defense counsel complained that they could not and should not be forced to guide prosecutors more in discovery because Brady did not require that they do so.  They also asserted that the attorney–client privilege limited what they could divulge to the prosecutor.  In return, prosecutors com­plained that they had enough to do to prepare for trial and that they should not have to do defense counsel’s work.  Each side withdrew to its own corner of the adver­sar­ial system’s boxing ring.

Yet, as the lawyers talked to each other and started to establish more un­derstand­ing and trusting relationships, this dynamic changed.  Defense lawyers still could not reveal their client’s communications.  But they could suggest areas of concern to better direct prosecutors to the type of discovery that would be helpful in the case.  Prosecutors in turn, came to trust that defense counsel were not using Brady merely to distract the government from trial preparation and agreed to make the extra effort to help locate additional evidence from investigators and local au­thor­ities that might be helpful for the defense.  What quickly became clear is that the greatest obstacle to providing the defense the evidence they would need for trial was not the formal rules of discovery or Brady.  The greatest hurdle to overcome was the culture of distrust and gamesmanship.  Both sides had to stop thinking of themselves as adversaries during a portion of the process that, if Brady is going to work, needs to function more like the inquisitorial system.

Certainly, it is not necessary to have formal retreats to obtain this result.  What is required, however, is a willingness to work collaboratively to ensure the defendant a fair trial.  In the pretrial stages (including discovery), both prosecutors and defense counsel must abandon the adversarial posturing displayed during trials and find a way to communicate and work together.

Additionally, there are certain logistical challenges in moving to a system of collaborative discovery.  Parties may very well disagree about what evidence is po­tentially exculpatory and the defense may be reluctant to reveal their strategy to obtain such evidence.  However, discovery referees or ombudsmen are no strangers to the civil discovery system, and some state courts already use special masters to handle discovery matters in criminal cases.⁵¹  One of the benefits of using third-party referees is that they can facilitate discovery procedures while maintaining the confidentiality of the parties’ strategies.  While these services generate addi­tional costs, these costs must be considered in light of the costs of postconviction proceedings and retrials if it is determined that the defendant has not received the discovery necessary for a fair trial.⁵²  Likewise, defense counsel already ask judges periodically to approve the disclosure of sensitive information—for example, the identity of informants.  This is usually done on an ex parte basis.  A middle person in the discovery process would play the role of the judge in the inquis­itorial system—coordinating the discovery for the case and ensuring that all the interests, particularly the defendant’s due process rights, are respected.  Currently, judges have precious little time to become involved in discovery disputes and even less time to serve as a facilitator for discovery exchange.  A middle person, such as a magistrate judge, may be able to devote more time to actively facilitating dis­cov­ery.⁵³

Changing the nature of the discovery process would necessarily cure much of the problem with the due diligence rule.  The discovery coordinator or referee would be a constant reminder to prosecutors that they should not rely on the due diligence of other parties, but that they have independent duties to help the court in finding all of the evidence material to the case.  At the same time, defense law­yers would also be called on to exercise due diligence to exhaust all sources of dis­covery, including those provided by public records, the defendant, other defense counsel, or by way of competent investigation.⁵⁴

Ironically, technology may lead the way to more collaborative discovery, but not in the way that people might think.  When people think of technological ad­vances, they may assume that a computer will do the work that people once needed to do.  In the discovery context, however, the collaborative efforts by people in the e-discovery⁵⁵ area may provide the model for better discovery practices even when computer records are not at issue.  Specifically, the protocols developed in recent years for meet-and-confer conferences in handling electronic discovery during which the parties must openly discuss their discovery needs and obligations, as well as work on strategies to obtain the necessary information, can also provide a mod­el for shared discovery responsibilities.⁵⁶

Courts that embrace the due diligence rule do so because they are reluctant to grant a new trial when either side could have obtained the information that was not presented at trial.  If the goal is to ensure that such information is obtained, then we need a process by which the defense either shares enough information with the prosecution or a third party so that prosecutors know what to look for and share, and by which prosecutors understand that their job is to respond to the re­quests of the defense.

In a reconfigured discovery process, prosecutors and defense lawyers need not fear that they are abandoning their roles as zealous advocates merely because the discovery phase is not as adversarial as the trial phase of a case.  The inquis­itorial model will actually force lawyers to exercise due diligence in providing and requesting exculpatory information.  If ombudsmen are used, there will be exter­nal pressures to cooperate in the discovery process.  However, even if there is not a third-party supervising the process, an understanding that prosecutors and defense lawyers must better communicate and cooperate to ensure effective Brady dis­cov­ery is likely to have a salutary impact on discovery practices.

Conclusion

The due diligence exception to the Brady rule is a symptom of an underlying problem in the American criminal justice system.  The general problem is that we have become so wedded to the adversarial system that we tend to forget that the goal of due process is not only to ensure that we obtain a verdict that might not be tainted, but a verdict that represents the most effective testing of the evidence availa­ble.  Brady requires prosecutors and defense counsel to make those adjust­ments.⁵⁷  Prosecutors must understand their role requires assisting the defense in their dis­covery efforts, and defense lawyers must embrace a collaborative model in which they become the guiding hand for discovery.

Both sides have much to gain by transitioning to this new approach.  For pros­ecutors, there are at least two benefits.  Primarily, they will be more effective in meeting their constitutional obligation.  As Professor Weisburd argues, pros­ecutors are poor substitutes for defense lawyers in guessing what evidence might be helpful for the defense.  Because prosecutors believe in their cases, they tend to discount potentially exculpatory evidence because they can anticipate how such evidence might be rebutted in the courtroom.  The fact that the evidence can po­ten­tially be rebutted, however, does not exempt prosecutors from disclosing it in the first place.  Second, prosecutors who work collaboratively with the defense are less likely to be subject to postconviction challenges and allegations of prosecu­tori­al misconduct.  Thus, putting in the work on the front end helps avoid endless and troublesome challenges following a conviction.

For the defense, a collaborative approach, such as that used in the inquisi­to­rial system, also has significant benefits.  First, and most importantly, defense coun­sel may be able to obtain more exculpatory information.  Just the process of preparing to discuss discovery with prosecutors will more likely lead defense coun­sel to review both what types of evidence might help their case and what sources are available for that information.  Second, if there are open discussions with the pros­e­cutor as to what information the defense is trying to obtain, and why its own sources have not been productive, defense counsel by definition will have exer­cised due diligence in obtaining the information.

The court also benefits from this collaborative approach because it will likely reduce postconviction claims that a trial was unfair because of the failure to dis­close or obtain exculpatory evidence.  It will be easier to measure whether defense counsel has acted ineffectively or whether prosecutors have violated their consti­tutional obligations because the collaborative procedures themselves can be used to verify the efforts of counsel.

Finally, and most importantly, the gamesmanship that marks both sides’ conduct in an adversarial system is less likely to affect the discovery phase of a case.⁵⁸  Both sides are free to be as adversarial as they like during the actual presen­tation of the evidence, but evidence itself does not belong to either side.⁵⁹  A brief shift to the inquisitorial model during discovery will actually enhance counsel’s ad­ver­sarial role during the trial, as each side seeks to convince the trier of fact about the importance of the evidence presented.

One of the greatest complaints about the American criminal justice system is that it seeks to hide, rather than find, the truth.⁶⁰  In criminal cases, there is far too much at stake for either side to play that game.  We are moving into an era where more collaborative efforts are possible.  We have the technology to work collab­ora­tively and a better understanding of other judicial systems where this is done.  It is time to seize on that opportunity.  We should all be diligent in pursuing justice.