CHAPTER 7

DISCOVERY

A. INTRODUCTION

The purpose of discovery is to enhance the search for truth. State v. Boehme, 71 Wn.2d 621, 632-33, 430 P.2d 527 (1967), cert. denied, 390 U.S. 1013 (1968). As stated by the Supreme Court in United States v. Nixon, 418 U.S. 683, 709, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974):

We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.

While the court rules, CrRLJ 4.7 and CrR 4.7, provide for reciprocal discovery to ensure that neither party is provided with an unfair advantage, (1) prosecutors have a constitutional obligation to disclose all material exculpatory and impeaching evidence to the defense. See generally Strickler v. Greene, U.S. , S. Ct. , L. Ed. 2d (June 17, 1999); Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).

When providing discovery in a domestic violence case, care must always be taken to protect the victim.

B. THE PROSECUTOR'S DUTY

The court rules, CrRLJ 4.7 and CrR 4.7, contain a list of items that the prosecutor is required to disclose, including the names and addresses of witnesses, witness statements, prior convictions and records or prior criminal convictions of the defendant and other witnesses. In determining what information satisfies these rules, it must be recalled that the rules do not distinguish between inculpatory and exculpatory evidence, (2) nor between the prosecution's rebuttal case and the case-in-chief. (3)

The prosecutor must provide the defense with discovery at or before the pretrial or omnibus hearing. The obligation to disclose information, however, arises as soon as the prosecutor becomes aware of the evidence, even if the information is first discovered after trial has begun. See CrR 4.7(h)(2); CrRLJ 4.7(g)(2); State v. Garcia, 45 Wn. App. 132, 136, 724 P.2d 412 (Div. 1 1986).

The prosecutor's obligation under the court rules is limited to information held by the prosecutor and the prosecutor's staff. CrR 4.7(a)(4); CrRLJ 4.7(a)(4); State v. Blackwell, 120 Wn.2d 822, 845 P.2d 1017 (1993). The prosecutor's constitutional obligation of discovery, however, extends to exculpatory or impeachment material held by the police agency that conducted the investigation and/or to other state agencies, such as the crime laboratory, that assisted in trial preparation. See Kyles v. Whitley, 514 U.S.419, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995).

The prosecutor has an obligation to assist the defense in obtaining evidence from third parties. CrRLJ 4.7(d); CrR 4.7(d). This obligation, however, does not extend to the prosecutor asking the victim personal defense-directed questions that may lead to impeachment. See generally State v. Judge, 100 Wn.2d 706, 717, 675 P.2d 219 (1984) (the prosecution, the police, or other investigators have no obligation to search for exculpatory evidence, conduct tests, or exhaustively pursue every angle on a case); Commonwealth v. Beal, 429 Mass. 530, 709 N.E.2d 413 (May 9, 1999) ("The duty to disclose exculpatory information does not require a prosecutor to make defense-directed inquiries of independent witnesses, including complainants."). If a prosecutor agrees to obtain information from a third person, instead of merely agreeing to assist the defendant in obtaining the information, the prosecutor's failure to produce the evidence may provide grounds for dismissing the charges. See State v. Sherman, 59 Wn. App. 763, 767-70, 801 P.2d 274 (1990) (trial court dismissal of charges affirmed where prosecutor agreed to obtain IRS records of complaining witness, but failed to do so).

The importance of providing thorough discovery is evident by CrRLJ 4.7(g)(7) and CrR 4.7(h)(7) which authorize dismissal of a case if the court determines that a failure to disclose evidence was a result of a "willful violation" or "gross negligence" and resulted in prejudice to the defendant. Other remedies for a discovery violation include the granting of a mistrial or a continuance. See, e.g., State v. Laureano, 101 Wn.2d 745, 762-63, 682 P.2d 889 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988), adhered to on reh'g, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1989); State v. Linden, 89 Wn. App. 184, 191-95, 947 P.2d 1284 (Div. 1 1997), review denied, 136 Wn.2d 1018 (1998) (trial court acted within its discretion in ordering continuance rather than mistrial for prosecutor's violation of its discovery obligation by failing to immediately disclose to defense that prosecution had obtained police report regarding defendant's arrest for another drug offense); State v. Smith, 67 Wn. App. 847, 841 P.2d 65 (1992), review denied, 121 Wn.2d 1019 (1993) (dismissal appropriate where late discovery forces the defendant to move for a continuance beyond the speedy trial period). Suppression of evidence is not a generally available sanction for a discovery violation. See, e.g., State v. Hutchinson, 135 Wn.2d 863, 881-82, 959 P.2d 1061(1998) (capital defendant's mental expert's testimony was properly suppressed after the defendant repeatedly refused to participate in a state examination and no other sanction would have been effective); State v. Ray, 116 Wn.2d 531, 538, 806 P.2d 1220 (1991); State v. Laureano, 101 Wn.2d 745, 762, 682 P.2d 889 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988), adhered to on reh'g, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1989); State v. Thacker, 94 Wn.2d 276, 280, 616 P.2d 655 (1980).

Certain issues concerning the prosecution's discovery obligations arise with some frequency in domestic violence cases. These issues are discussed below:

1. The Victim's Address

RCW 10.99.040(1)(c) requires the court in domestic violence cases to waive disclosure of the victim's address to anyone except defense counsel "if there is a possibility of further violence." The court is also given the discretion to prohibit defense counsel from disclosing the address to the client. See also CrR 4.7(h)(3) and (4) (custody of materials and protective orders); CrRLJ 4.7(g)(3) and (4) (same).

In preparing documents for disclosure, the best practice is to redact the victim's address from all police reports, medical records, and other documents that are provided to defense counsel. If defense counsel wishes to interview the victim, a contact phone number may be provided to counsel separately to facilitate the interview or a local victim advocacy agency may agree to serve as an intermediary.

2. Shielding Harmful or Embarrassing Information

The court rules provide a number of mechanisms for protecting a victim or other witnesses from harassment or intimidation. See CrRLJ 4.7(e)(2) and CrR 4.7(e)(2) (restricting disclosure of information not covered by CrRLJ 4.7(a), (c), and (d) or CrR 4.7 (a), (c), or (d)); CrRLJ 4.7(h)(5) or CrRLJ 4.7(g)(5) (excision of information contained in discovery covered by CrRLJ 4.7(a), (c), and (d) or CrR 4.7 (a), (c), or (d)); CrRLJ 4.7(g)(4) and CrR 4.7(h)(4) (providing for delayed disclosure of information governed by CrRLJ 4.7(a), (c), and (d) or CrR 4.7 (a), (c), or (d)). All of these protective mechanisms are triggered by the filing of a motion and the submission of the discovery for in camera review. When submitting documents for in camera review, it is critical to include one non-redacted version and two redacted versions (one for the appellate record and one for the court to provide to the defendant).

3. Limiting Defense Interviews of Prosecution Witnesses

CrRLJ 4.7(g)(1) and CrR 4.7(h)(1) prohibit an attorney from advising witnesses to refrain from discussing a case or showing relevant material to opposing counsel.

WSBA Formal Ethics Opinion 88-2 addresses this somewhat complicated issue. This Opinion contains an analysis of the following questions:

a. May a prosecutor discourage witnesses from talking with a defense attorney or investigator? Answer: "[A] prosecutor who discourages or otherwise obstructs witnesses from consenting to defense interviews would violate RPC 3.4."

b. May a prosecutor encourage witnesses not to be interviewed unless a prosecutor is present? Answer: "We believe that encouraging witnesses not to be interviewed unless a prosecutor is present constitutes obstructing access to the witness, which is prohibited by RPC 3.4."

c. May a prosecutor advise a witness of his or her right to be represented by a person of the witness's choice during a defense interview? Answer: "We believe it is permissible for the prosecutor to advise a witness of his or her rights as a witness. Those rights include the right, if the witness chooses, to have the prosecution present at a defense interview."

Since the issuance of the WSBA Opinion, Division II issued an opinion addressing this exact issue:

Following the foregoing principles and authorities, we hold that it is improper for a prosecutor to instruct or advise a witness not to speak with defense counsel except when a prosecutor is present. We further hold, a fortiori, that it is improper for a prosecutor to plea bargain in such a way as to impose such instructions or advice on a witness. At least in the absence of extraordinary circumstances, the fact the State is prosecuting a case against the witness does not alter the State's duty not to obstruct access to the witness in the case against the defendant.

Nothing herein is intended to imply that a prosecutor may not inform a witness of his or her right to choose whether to give a pre-trial interview, or of his or her right to determine who shall be present at the interview; like several of the courts quoted above, we recognize that giving information about the existence of a right is different from instructing or advising on how it should be exercised. Nothing herein is intended to imply that a trial court may not reasonably control access to a witness under appropriate circumstances, assuming of course that each party has notice and an opportunity to be heard. Nothing herein is intended to imply that only the prosecutor is bound by the principles we have discussed; we assume, though we need not hold, that defense counsel is bound as well, except when the witness is his or her client.

In the present cases, the prosecutor not only advised Chambliss and Leonard not to speak with defense counsel unless a prosecutor was present, he also threatened that if they did, the State would withdraw its plea bargain and "bring some of [its] focus" back onto them. Measured by the principles discussed above, this was prosecutorial misconduct. (Citations omitted.)

State v. Hofstetter, 75 Wn. App. 334, 340-42, 878 P.2d 474, review denied, 125 Wn.2d 1012

In domestic violence cases prosecutors should routinely advise victims of their right to have a prosecutor present at a defense interview, but the prosecutor must be extremely careful not to give the victim the impression that the prosecutor wishes the victim to refuse an interview unless the prosecutor is present. In addition to advising the victim that she has the right to have a prosecutor present for the interview, it is proper to advise victims that they are in control of the time and place for a defense interview. The victim should also be advised of her right to refuse to have the interview taped, RCW 9.73.030, and of her right to refuse to have the defendant present during the interview. See, e.g., State v. Smith, 235 Mont. 99, 765 P.2d 742 (1988). The prosecutor should offer a secure setting for the defense interview, whenever possible.

4. Work Product

CrRLJ 4.7(f)(1) and CrR 4.7(f)(1) exempt an attorney's work product from disclosure and this includes "legal research of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusion of investigating or prosecuting agencies," except for reports of expert witnesses as provided for in subsection (a)(1)(iii). See generally State v. Garcia, 45 Wn. App. 132, 137-38, 724 P.2d 412 (1986) (deputy prosecutor's notes taken at an interview held not to be a work product under CrR 4.7(f)(1)).

5. Rape Crisis Center/DV Program/ Counseling Records

RCW 70.125.065 exempts a victim's records held by a Rape Crisis Center from disclosure as part of discovery unless an in camera review occurs and the defense establishes the relevancy and necessity for such records. State v. Kalakosky, 121 Wn.2d 525, 543-45, 852 P.2d 1064 (1993); State v. Lubers, 81 Wn. App. 614, 623, 915 P.2d 1157, review denied, 130 Wn.2d. 1008 (1996). The court can refuse to conduct an in camera review of the victim's counseling records under RCW 18.19.180 when the relevance is speculative and other evidence is available to establish intoxication, etc. State v. Diemel, 81 Wn. App. 464, 914 P.2d 779, review denied, 130 Wn.2d 1008 (1996). RCW 70.123.075 governs records of domestic violence programs. An in camera review is required to determine relevance and whether the probative value is outweighed by the victim's privacy interest. (Note: Before the hearing proceeds, make sure the defense gave proper notice of the hearing to the records custodian.)

6. Medical Records

A victim's medical records are protected from disclosure without the victim's permission by the physician-patient privilege. RCW 5.60.060(4); State v. Mines, 35 Wn. App. 932, 938, 671 P.2d 273 (1983), review denied, 101 Wn.2d 1010 (1984); State v. Broussard, 12 Wn. App. 355, 529 P.2d 1128 (1974). The privilege, however, is not absolute. State v. Boehme, 71 Wn.2d 621, 636-37, 430 P.2d 527, (1967), cert. denied, 390 U.S. 1013 (1968). The privilege has been statutorily waived in cases involving the abuse of a child or adult dependent or developmentally disabled person. See RCW 5.60.060(4) ("Subject to the limitations under RCW 70.96A.140 or71.05.250, a physician or surgeon or osteopathic physician or surgeon shall not, without the consent of his or her patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him or her to prescribe or act for the patient, except as follows: (a) In any judicial proceedings regarding a child's injury, neglect, or sexual abuse or the cause thereof; "); RCW 26.44.030(1) (duty to report abuse of child or adult dependent or developmentally disabled person); RCW 74.34.030 (duty to report that a vulnerable adult has suffered abuse, exploitation, neglect, or abandonment); State v. Fagalde, 85 Wn.2d 730, 737, 539 P.2d 86 (1975) ("The legislature has expressed an intent to protect the confidentiality of communications made in the physician-patient and psychologist-patient relationship, except where they relate to child abuse; and in this area the interest in discovery of cases of such abuse and in protecting the child from future recurrences is found to be overriding."); State v. Butler, 53 Wn. App. 214, 222, 766 P.2d 505 (1989) ("Washington legislative enactments impose a duty on physicians and registered or licensed nurses who '[have] reasonable cause to believe that a child ... has suffered abuse or neglect" to "report such incident, or cause a report to be made, to the proper law enforcement agency ...'"); In re the Welfare of Dodge, 23 Wn. App. 486, 628 P.2d 1343 (1981) (statutory exception to physician/patient privilege contained at RCW 5.60.060(4) should be read broadly).

The privilege has also been judicially waived where the medical records contain evidence that is favorable to the accused and material to the accused's guilt or punishment. Pennsylvania v. Ritchie, 480 U.S. 39, 94 L. Ed. 2d 40, 107 S. Ct. 989 (1987). A victim's medical records will only be released to an accused under this exception following an in camera review of the records by the court. If an accused is aware of specific information that is contained in a victim's medical files, the accused he may request it directly from the court, and argue in favor of its materiality. Ritchie, 107 S. Ct. at 1003. If a court should determine to release some, or all, of a victim's medical information to an accused under this exception, the prosecution must always request that the court redact all information regarding the victim's current or past locations, i.e. address, phone numbers, contact numbers, employers, from the records that are provided to the accused.

7. On Going Testing

Continuances beyond the court rule speedy trial period may be obtained by the prosecution in the interests of justice to allow for the completion of forensic testing. State v. Cauthron, 120 Wn.2d 879, 910, 846 P.2d 502 (1993). Neither dismissal nor suppression of evidence are proper for late release of forensic test results so long as the prosecution used due diligence in obtaining the test results and the results were released to defense counsel as soon as they were received from the laboratory. CrR 4.7(h)(1); CrRLJ 4.7(g)(1); In re Lord, 123 Wn.2d 296, 329, 868 P.2d 835, cert. denied 115 S. Ct. 146 (1994) ("Lord claims that the trial court violated his right to due process and to effective assistance of counsel by denying a defense motion for a continuance and allowing "the prosecution to continue its discovery during trial and allow[ing] evidence developed during this period to be admitted into evidence". PRP, at 250. On direct appeal, Lord also assigned error to the trial court's failure to limit discovery once trial started. This was among the "number of other issues" which this court reviewed and found not to "merit individual attention". Lord, 117 Wash.2d at 916.").

C. REQUESTS TO DEFENSE COUNSEL FOR DISCOVERY

Prosecutors should always request discovery from the defense. In order to avoid inadvertent failures to make such requests, the request should be contained in a form letter to the defense at the time the prosecution's discovery is forwarded to the defense. If the defense does not provide discovery in compliance with CrR 4.7(b) or CrRLJ 4.7(b), the prosecutor may file a Motion to Compel Discovery.

The defense will occasionally attempt to avoid producing discovery on the grounds of "work product". The courts, however, have narrowly construed the work product privilege. See, e.g., State v. Hutchinson, 135 Wn.2d 863, 876-77, 959 P.2d 1061(1998) (defendant who asserts a diminished capacity or insanity defense waives the work product privilege as to all defense obtained evaluations and must submit to a state examination); State v. Hamlet, 133 Wn.2d 314, 944 P.2d 1026 (1997) (same); State v. Yates, 111 Wn.2d 793, 765 P.2d 291 (1988) (Defense notes of witness interviews may be discoverable if the author of the notes is called to impeach the witness. The court, however, must conduct an in camera review of the notes prior to turning them over.); State v. Strandy, 49 Wn. App. 537, 540, 745 P.2d 43 (1987), review denied, 109 Wn.2d 1027 (1988) (defense counsel's taped interview of a prosecution witness was not work product).

A defendant's refusal to comply with lawful discovery orders or a delay in making required disclosures may result in a continuance beyond the speedy trial period, in a contempt finding with incarceration, or in the suppression of evidence. State v. Hutchinson, 135 Wn.2d 863, 881-82, 959 P.2d 1061(1998) (capital defendant's mental expert's testimony was properly suppressed after the defendant repeatedly refused to participate in a state examination and no other sanction would have been effective); State v. Nelson, 14 Wn. App. 658, 545 P.2d 36 (1975) (defendants found in contempt and incarcerated for refusing to provide discovery); State v. Grant, 10 Wn. App. 468, 474-75, 519 P.2d 261 (1974). Speedy trial is appropriately tolled pending while the court waits for the defendant to purge the contempt finding. See State v. Miller, 74 Wn. App. 334, 873 P.2d 1197 (1994) (tolling of defendant's court rule speedy trial rights during 14 month incarceration under order of civil contempt for her failure to provide handwriting exemplar to prosecution was proper).

1. See generally State v. Yates, 111 Wn.2d 793, 798-99, 765 P.2d 291 (1988).

2. See State v. Oughton, 26 Wn. App. 74, 79, 612 P.2d 812 (1980) ("The State would have us make a distinction between inculpatory and exculpatory evidence and find no duty to produce the former. CrR 4.7(a)(i) makes no such distinction and neither do we.").

3. State v. Linden, 89 Wn. App. 184, 194, 947 P.2d 1284 (1997), review denied, 136 Wn.2d 1018 (1998); State v. Dunivin, 65 Wn. App. 728, 733, 829 P.2d 799, review denied, 120 Wn.2d 1016 (1992).