Discovery in Criminal Cases

Recently I was retained to represent a young lady charged with conspiracy to commit murder. Its a case that was, before I got involved, featured on Nancy Grace and 20/20. I took the case after the prior lawyer had handled the preliminary hearing and before the case went to the grand jury. Indictment is on July 24, 2008 in the Wilson County, Tennessee, Criminal Court.

As soon as I was retained, I had the clerk make me a copy of the tape of the preliminary hearing. During that hearing, the District Attorney played tape recordings that had been made of the alleged conspirators. Since it is very difficult to hear the recordings being played into the courtrooms recording system, I sent a letter to the District Attorney asking for copies of the tapes.

Having not heard anything from him, I called over yesterday and was told that they never give out discovery prior to the arraignment. My reaction was that such a policy was all well and good, but they sure didn't have any trouble playing them for Nancy Grace and 20/20. In retrospect, it probably wasn't the District Attorney's office that released the tapes to the media. Likely it was the Sheriff's Department, who appeared on both shows.

In any event, my issue with the District Attorney's position is that there ought to be a little fundamental fairness injected into the system. No matter who loosed the tapes into the wild, it had to come from state law enforcement. That being the case, would it not be fair to let the defense have access to them earlier in the process? Shouldn't a District Attorney be at least a little concerned with being fair? Or is it all about getting whatever advantage he can get in the quest for a conviction?

I haven't decided yet whether to make a motion to get early access. The next motion day is July 15, which means that I would only gain a week. Given that, it is likely not worth it.

Maybe someday the people in law enforcement and prosecution will start realizing that how they do their job is just as important as the results that they get.

~Tim