Written by attorney Robert J. Ruffner

Introduction to Discovery and Criminal Law: Part III by Statue, Informally and the Constitution

Discovery by Statute

In addition to the Rules of Criminal Procedure, there are many statues which provide an attorney the opportunity to obtain information from the State. They range from access to agency records to a chance to question a witness in your case under oath before trial. i

If your case involves the Maine Department of Health and Human Services, you may be able to gain access to the Department’s file through a motion to the Court, known as a Clifford Order. Under Title 22 Maine Revised Statutes, section 4008(3)(B), ii the Court may order an in camera review of the DHHS file. If the Court determines that access to the records is necessary to resolve the instant case, the parties will be allowed to review those records and to obtain copies.

You can also generate additional discovery under certain statutes. In a drug case for example, under Title 17-A M.R.S., section1112, you can request a “qualified witness testify as to the composition, quality and quantity of any drug or substance at issue" in the case. You not only have the option to make the State put on an expert witness, but you are entitled to their expert reports and more under Rule 16(b).

Informal Discovery from the State

Operating Under the Influence. In many criminal cases, especially OUI, iii law enforcement officers are trained in various specialized investigatory techniques. In Maine, most officers received their training at the Maine Criminal Justice Academy. iv If your client is charged with OUI, you may want to check to see if the officer(s) received proper training and whether that training was current. You can also obtain a copy of the same manual that was used to train the officer. This can be great source material for cross-examination.

Another avenue for discovery in OUI cases is the administrative hearing. v When you request the administrative hearing you should also ask for copies the police reports and test results relevant to that hearing, which will then be provided to you. Furthermore, the hearing affords an opportunity to question the officer (or other witnesses) under oath. This testimony may be useful at a suppression hearing down the road, or simply provide a prior statement for cross examination at trial.

Protection orders. Our clients are often served protection from abuse vi or harassment vii complaints by the complaining witness in the criminal case. These clients are entitled to a hearing, providing you the opportunity to question the witness under oath. Also, there is nothing to stop you from subpoenaing the investigating officers as witnesses. Since you will want a transcript later on, make sure request that the matter be recorded in writing well before the hearing. viii

Pleadings. Affidavits in support of warrantless arrests ix and search warrants x are another avenue of informal discovery. Though they could be specifically drafted documents xi limited to setting out probable cause, Rule 4A affidavits are typically the same police reports that would eventually be disclosed through the normal discovery process. There are circumstances where you may need to obtain the reports faster than the State is willing to provide them. That first meeting with a client at the jail can be made much more productive with a quick stop at the clerk’s office to get the complaint and affidavit on your way.

Practice Tip: Don't forget to carefully review the complaint or indictment. The actual charging document is often the only available source of discovery initially in a criminal case. This is especially true if your local prosecutor is too busy or declines to provide you with Rule 16 discovery early on.

Prior Convictions. Maine Rules of Evidence 609 xii allows for the use of certain prior convictions to impeach the credibility of a witness. The State is unlikely to provide you with the prior convictions of any of its witnesses, even if the State was the one to convict them. However, through the State Bureau of Identification, you can order a criminal records check for any witness, including your own, so long as you have a name and date of birth. xiii Two important limitations to keep in mind: you will only get conviction information from Maine, and only if the State has it on record. The State may have records that you are unaware of, either because this information hasn't made it into the SBI system yet, or because the State has run an NCIC xiv check. Therefore, you may want to file a formal request with the State to provide you with this information. If the State declines, you may choose to include this as part of you motion to compel. Be aware, Rule 16(b) was amended in 1991 to include the names and dates of births precisely so you can conduct your own background check. Be prepared to show the court why it is reasonable in this case to require the State to run an NCIC check and share it with you. xv

The U.S. Constitution

Don't forget to cite the U.S. Constitution when drafting your discovery requests. In Brady v. Maryland, 373 U.S. 83, 87 (1963), the U.S. Supreme Court held that irrespective of good or bad faith, due process requires that evidence favorable to a defendant be provided where such evidence is material to either guilt or punishment. In Giglio v. United States, 405 U.S. 150, 155 (1972), the U.S. Supreme Court brought within the due process requirements enunciated in Brady the right of defendants to secure from the prosecution disclosure of material affecting the credibility of government witnesses, such as plea agreements, promises of leniency, inducements to testify and financial assistance offered by the government. In United States v. Bagley, 473 U.S. 667, 676 (1985), the court reaffirmed Giglio and held there is no difference between exculpatory and impeachment evidence for Brady purposes. Disclosure of Giglio impeachment material is governed by the same legal principles which apply to basic Brady material. Giglio is merely a subset of Brady material. It's good practice to include a reference xvi to Brady in your discovery requests.

I always try to tell my clients that the law is more of an art than a science; there often isn't a single right answer. This article barely touches the surface of discovery in criminal cases. New attorneys and innovative practitioners bring fresh ideas and approaches to the practice every day. It is beyond the scope of these pages to capture them all here. Always keep in mind, there is no single approach which will work best everywhere in Maine. In the end, the best practice is to practice. Get to know your local A.D.A.s and their staff. Find out how they deal with discovery. We may disagree with how they interpret Rule 16 but they don't make their policies secret. If you know their procedure, you will know whether the next step to getting the information you need is via a friendly phone call or a fiery motion. And getting the information our clients need is what it is really all about.

i This is not a complete list. Make sure you conduct your own research or speak with some experienced colleagues to see if there are any avenues that you may have overlooked.

ii 22 M.R.S. §4008(3)(B)

  1. Mandatory disclosure of records. The department [i.e., DHHS] shall disclose relevant information in the records to the following persons:

B. A court on its finding that access to those records may be necessary for the determination of any issue before the court or a court requesting a home study from the department pursuant to Title 18-A, section 9-304 or Title 19-A, section 905. Access to such a report or record is limited to counsel of record unless otherwise ordered by the court. Access to actual reports or records is limited to in camera inspection, unless the court determines that public disclosure of the information is necessary for the resolution of an issue pending before the courts;

iii 29-A M.R.S. § 2411

iv 15 Oak Grove Road, Vassalboro, Maine 04989. Phone: (207) 877-8000. Fax: (207) 877-8027.

v 29-A M.R.S. § 2483

vi 19-A M.R.S. § 4001

vii 5 M.R.S. § 4651

viii Given the staffing shortages in many of our courts, don’t assume that the clerk’s office will have staff to spare to run the recording equipment at the last minute.

ix M.R. Crim. P. 4A. In cases where a defendant is arrested without a warrant and is detained (unable to make bail) within 48 hours of arrest, Rule 4A requires the State to prove to the Court that probable cause exists to believe that the defendant has committed the crime he is being held on.

x M.R. Crim. P. 41

xi Probable cause may also be proven by way of “sworn oral statement or statements." M.R. Crim. P. 4A(b)(3).

xii M.R. Evid. 609 (Impeachment by Evidence of Conviction of Crime) states, in relevant part, as follows:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a specific crime is admissible but only if the crime (1) was punishable by death or imprisonment for one year or more under the law under which the witness was convicted, or (2) involved dishonesty or false statement, regardless of the punishment. In either case admissibility shall depend upon a determination by the court that the probative value of this evidence on witness credibility outweighs any unfair prejudice to a criminal defendant or to any civil party.

xiii You can order an SIB records check available at (Last visited Nov. 23, 2010).

xiv National Crime Information Center – run by the FBI – electronically compiles criminal justice information that is made available to law enforcement agencies throughout the country 24/7.

xv For example, a witness has lived out of state for a significant period of time as an adult.

xvi It may be as simple as: “Pursuant Brady& Giglio and (cites omitted) and their progeny, the attorney for the State is obliged to turn over any material which is exculpatory or which may impeach any government witness."

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