Paper Tigers

Arizona’s rules of criminal procedure explicitly give courts authority to preclude evidence if a party violates the discovery rules. However, the Supreme Court of Arizona has stated that “preclusion is rarely, if ever, an appropriate sanction for a discovery violation.” As a result of that language, Arizona trial courts almost never preclude evidence, especially when that evidence is a witness who was untimely disclosed or failed to participate in a deposition.

I’ve tried arguing that preclusion is frowned upon because most published opinions deal with defendants noticing witnesses at the last minute. Defendants have a Sixth Amendment right to present witnesses, so the courts need to avoid preclusion so as not to infringe on defendants’ constitutional rights. I usually provide a string cite of cases frowning upon preclusion, all of which involve defendants’ last-minute disclosures, and then I cite a case suggesting that Arizona courts’ hesitance in sanctioning discovery violations with preclusion is a consequence of the Sixth Amendment. The state doesn’t have any Sixth Amendment rights, so preclusion shouldn’t be as rare a sanction when it’s the state that violated the rules. Makes sense, right? I think it’s a compelling argument, but courts almost never agree with me.

I also regularly argue that any other sanction is meaningless. According to the case law, determining which sanction to impose is left to “the sound discretion of the trial court.” I argue that trial courts are in the best position to give the rules some teeth. According to the case law, preclusion is only acceptable where less stringent sanctions won’t effect the ends of justice, and in most cases, anything short of preclusion or dismissal won’t make any difference at all. Again, I think it’s a compelling argument. Judges usually disagree with me.

The Supreme Court of Arizona is no doubt aware of the arguments I’ve made, and it clearly acknowledged the fact that rules need remedies in State v. Tucker, where the court said the following:

We have previously voiced our disapproval of the type of discovery practices exhibited in this case. We repeat our disapproval, this time mindful that appellate rebuke without reversal may amount to no more than an easily-ignored verbal spanking. While upsetting a criminal conviction is a drastic step, it is one we may in the future be required to take, pursuant to our inherent supervisory authority, if it is the only way to deter prosecutorial defiance of court rules.

Moreover, we note that it is the trial court’s responsibility to enforce our disclosure rules. Trial court judges are far more able than we to ensure that prosecutors do not ignore their Rule 15 obligations. When necessary, trial judges possess the power to invoke sanctions — including holding counsel in contempt — for failure to comply with discovery rules. Perhaps the time has come to make clear that these sanctions are not merely a paper tiger.

In most Arizona trial courts, even easily-ignored verbal spankings aren’t as common as they should be. When I ask for preclusion, pulling out the ol’ paper tiger quote from Tucker generally gets me rolled eyes or a “very funny, defense counsel” from the judge. They don’t take it seriously. They cite the opinion saying preclusion is rarely, if ever, an appropriate sanction for a discovery violation. That is, if they bother citing anything at all.

Tucker was a 1988 case. I’m waiting for trial courts to start taking responsibility to enforce the disclosure rules. I’m waiting for the Supreme Court of Arizona to take that drastic step they threatened.

They’re still angry, right? Maybe? I bet they are, and one day, just you wait. The time will come for them to make clear that discovery sanctions are not merely a paper tiger.

It just isn’t today. Any today. Ever.