Articles - [back to articles directory]
Published in the Daily Journal - December 13, 2004
Federal Judges Should Require Witness Lists Before Trial

By Dana Cephas

The Michael Jackson molestation trial is scheduled to begin in state court early next year, but because of the state discovery statute, prosecutors have had to give Jackson’s attorneys a list of the prosecutor’s witnesses, their addresses and copies of statements made by those witnesses.

In contrast, if Jackson were being tried in federal court, his attorneys would not have the right to know the identities of any of the prosecutor’s witnesses until the first day of trial.

Federal prosecutors generally are not required to provide defense counsel with the names of potential witnesses prior to trial. Under 18 U.S.C. § 3432, a federal prosecutor is required to provide a witness list ahead of time – three days before trial – only in treason or death penalty cases.

Thus, defense counsel in federal criminal prosecutions routinely begin trials without knowing whom the prosecutor will call as witnesses or what those witnesses might say.

Some people might refer to that as trial by ambush. And no one charged with a crime in federal court would refer to that as a “fair” trial.

A federal criminal defendant’s pursuit of a fair trial purportedly is made easier by the fact that prosecutors are required to produce written statements made by any person whom the prosecutor might call as a witness. Those written statements are typically summaries of interviews conducted by the federal investigator handling the case.

However, federal prosecutors routinely avoid that discovery requirement by conducting their own interviews of potential witnesses. By doing so, prosecutors can ensure defense attorneys are kept in the dark until the beginning of the so-called fair trial.

A recent California Appellate Court decision (Roland v. Superior Court, 2004 DJDAR 13930 (Cal.App.3rd Dist. Nov. 18, 2004)) discusses the goals of pre-trial discovery and explains why – in state court – attorneys cannot avoid discovery obligations by conducting their own witness interviews. The case also helps demonstrate how differently state and federal courts view the concept of a fair trial.

In Roland, the 3rd District Court of Appeal was asked to interpret the state’s criminal discovery statute – specifically, an attorney’s obligation to produce statements of potential witnesses.

The criminal discovery statute requires an attorney to disclose the “names and addresses of persons . . . he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons.”

At a pretrial conference in the Roland case, the defense counsel revealed the names of seven new witnesses, but did not provide the prosecutor with any relevant statements made by those witnesses.

The defense attorney argued that she was not required to produce witness statements because (as prosecutors often do) she conducted her own “oral” interviews of those seven witnesses and the discovery statute requires disclosure only of written or recorded statements.

The appellate court explained that the discovery statute was enacted to, among other things, “restore balance and fairness to our criminal justice system” and to “promote the ascertainment of truth in trials by requiring timely pretrial discovery.”

The court stated that the intent of the discovery statute would be undermined if attorneys could “avoid disclosing relevant information by simply conducting their own interviews of critical witnesses, instead of using investigators to perform this task, and by not writing down or recording any of those witnesses’ statements.” The court wrote that “such gamesmanship is inconsistent with the quest for truth, which is the objective of modern discovery.”

Because of the ruling in Roland, defendants in state court should always have pre-trial access to the names and likely testimony of the prosecutor’s potential witnesses, even where the prosecutors conduct the witness interviews.

In contrast, federal criminal defendants who invoke their right to a trial will experience a far different playing field where gamesmanship has become the rule rather than the exception. For example, federal prosecutors are apparently instructing federal investigators to refrain from attending interviews or not to take notes during witness interviews.

This conclusion is supported by the fact that prosecutors routinely have witnesses testify without the prior production of any witness statements because it is unlikely that those witnesses testified without a pre-trial interview.

Defending someone in federal court is further complicated by the fact that prosecutors are routinely permitted to produce significant discovery, including reports from experts, a few days before (or even on the morning of) trial.

While such discovery almost always would be excluded in a federal civil trial, federal prosecutors often face no sanction (or exclusion) for such last-minute production of discovery.

When defense counsel objects to the untimeliness of the production, the prosecutor can tell the judge, who is often a former prosecutor, that “I just got these documents from the federal investigator and I gave them to defense counsel as soon as they were given to me.”

Experienced federal investigators know that prosecutors are required to make physical evidence available to defense counsel. Thus, either federal agents are consistently unreliable or they intentionally wait to obtain key evidence so prosecutors will have plausible deniability in the last-minute production of such evidence.

When this happens, defense counsel, who may have planned to use the last few days before trial to finalize trial strategy, must instead spend crucial time reviewing or investigating allegedly “new” discovery and must decide whether to spend hours drafting a motion to exclude (that may be decided by a former-prosecutor-judge who honestly believes there is nothing wrong with such last- minute disclosures).

In Roland, the appellate court noted that the state’s wanted to ensure fair trials by enacting a statute requiring the “timely” production of discovery. The will of those voters for fair trials can and should be honored in federal court.

For example, when the right to witness lists is being litigated, federal judges should be reminded that many federal cases initially were charged in state court, and thus, at least for a short time, the defendants had been entitled to the names, addresses and statements of potential witnesses.

By transferring prosecutions to federal court, state and federal prosecutors are effectively acting to prevent defendants from getting state-mandated discovery. Prosecutors know it is easier to convict defendants who have fewer discovery rights. And if federal courts permit prosecutors to circumvent a defendant’s discovery rights so easily, the state discovery statute will be rendered meaningless for certain categories of defendants.

Federal judges also should be reminded that the federal rules of civil procedure almost always would mandate the exclusion of evidence produced on the eve of trial, and allowing such untimely production causes a much greater injury to a criminal defendant, who has no right to take depositions or propound interrogatories.

If the goal of the federal criminal legal system is simply to ensure the highest possible conviction rate, then federal judges should ignore the people’s desire for fair trials and continue to permit prosecutors to keep defense counsel uninformed and thus unprepared for trial.

But state courts cannot possibly be the only judicial venue that desires to “promote the ascertainment of truth in trials by requiring timely pretrial discovery.” Thus, criminal defendants should not be required to wait until the outdated federal rules of criminal procedure are modernized.

A few published cases recognize the discretion of a federal judge to require a prosecutor to produce a witness list before trial. Federal judges should follow those published cases, order the prosecutor to produce statements from all witnesses, and take more steps to exclude witnesses or evidence that was not disclosed timely.

As more federal judges take those steps, criminal defendants who are transferred from state court to federal court will not see the move as a loss of valuable discovery rights.

Moreover, federal courts and fair trials will not be seen as mutually exclusive concepts.