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Open discovery takes away element of surprise

Court_Gestures_300x100_Trials in Florida were never boring, but there weren’t that many surprises, either.

And apparently that’s because of the state’s open discovery system. I saw it often as a cops and courts reporter for the Pensacola News Journal in Florida’s panhandle.

I also saw that during trial, though, there was the occasional testy exchange between witness and attorney, and occasionally a jail inmate would come forward mid-trial with some evidence that would ultimately hurt a defendant’s chances of acquittal.

But there were rarely points during the trial that would surprise either side. Prosecutors and defense attorneys made objections, sure, but the system ensured that trials in Pensacola moved at a fairly brisk pace.

I bring this up because the Wisconsin Judicial Council’s criminal procedure committee is toying with a proposal that would expand discovery for defendants in criminal cases. It is part of an overall criminal code rewrite that never quite off the ground last session and will be introduced early next year.

At a public hearing Tuesday, the committee – made up of judges, defense attorneys and prosecutors – heard the pros and cons of open discovery, as well as taking depositions in criminal cases.

But at the hearing, even if it wasn’t discussed at length, one of the concerns with expanding discovery is how it could adversely hurt a prosecutor’s case. What if a defendant can successfully rebut every statement or piece of evidence that is presented?

Well, apparently in Florida, it doesn’t really matter. John Molchan, an assistant state attorney in Pensacola, said there are few surprises at trial because nothing a prosecutor has is off limits to a defendant. The same goes for a prosecutor’s ability to view a defendant’s files, he said.

“It’s something that we’ve always dealt with,” Molchan, who has been a prosecutor for 25 years, said. “In essence it encourages realistic negotiations and realistic evaluation of your case.”

He applied this logic to the reasoning for taking depositions. That way, he said, all the facts are out there.

To be sure, he said, the system has its drawbacks. Former Broward County prosecutor Chuck Morton noted at Tuesday’s hearing, depositions mean that police officers need to be paid for their time, and it can be expensive.

Molchan highlighted this as well. He also said that witnesses that come forward later in the process can often lead to delays, as both sides need their time to properly investigate.

But overall, he said, it’s just a different way of looking at it.

“The idea of a prosecutor is to do justice, not to play gotcha,” Molchan said.

About Eric Heisig

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