Civil Discourse Now

Where the far left and far right overlap for fun and enlightenment

"Sniff the Glove": Prosecutors' demands for a party that seeks discoivery

Justice requires open Courts and public trials. (U.S. Const. Amend. VI; Ind. Const. Art. I, § 12.) In the name of efficiency Courts substitute computers for people. Courts invoke privacy and a person’s security as they shut out public scrutiny.

Whether brought by the Government, the State, the People or Commonwealth, the prosecution has great advantages. First, it chooses the charges and when to file. Second, it has assets such as police and labs. At the very least the Accused has a right to counsel and access to discovery.

Discovery is the process by which any parties to litigation can obtain the evidence the other side has. In civil cases, such as divorces or personal injury suits, discovery is a street with as many ways as parties. In criminal cases the prosecution usually has most of the evidence.

Both sides must produce evidence they have, but neither need disclose “work product”: thought processes of counsel or strategy. Despite advantages they already have, a few Indiana prosecutors want even more, as shown last week by an Indiana Court of Appeals case.

Ramirez v State, 20A-CR-1982, was issued as a Memorandum Decision and, under Appellate Rule 65,, only can be cited as authority under collateral estoppel, res judicata or law of the case, i.e., by the same parties. One issue: a letter counsel for the Accused refused to sign.

Counsel for the Accused only could review discovery in the Office of the Prosecutor. If the accused retains an expert, that expert could review materials in that office. No files could be given to the Accused. Successor counsel could not receive the files.

Courts already safeguard matters the Courts deem confidential. This decision confers upon prosecutors authority to control what can be seen and when. The State’s prosecutor could seek to punish those who might publish parts of the State’s file.

There are other objections to raise to the State’s overreach, but the central dynamic, a cloak of greater secrecy in how people are prosecuted, is anathema to our system. And fewer humans are present in Court as a public check upon these actions.

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