Tipping Our Hand

People who don’t practice criminal defense tend to have a number of funny misconceptions about how the process works. Sadly, some people who do practice criminal defense also tend to have a number of funny misconceptions about how the process works. One huge area where non-practitioners and even some practitioners seem to get confused is disclosure. “We’d better not tip our hand,” I hear over and over again.

In Arizona state courts, far more so than in federal court, the disclosure rules are quite extensive. The state must comply with all kinds of requirements as the case proceeds. At the arraignment, it must turn over all law enforcement reports as well as the names and addresses of experts and the results of completed physical examinations, scientific tests, experiments, or comparisons. Within 30 days after that, the state must provide the defense with pretty much every piece of information or evidence it would need to assess the case. Other less-important disclosure deadlines continue to occur more or less right up to trial, but the important stuff comes out early in the process. There are even rules providing for sanctions, though the sanctions, like preclusion, are used less frequently by courts than they should be. There’s plenty to complain about with Arizona’s system, but I must admit the discovery rules aren’t bad.

The rules, however, don’t just apply to the state. There’s a whole list of things a defendant must do upon the state’s request. The defense has its own primary disclosure to make, more or less a mirror of the state’s primary disclosure, and it’s due 10 days after the state’s disclosure or 40 days after arraignment, whichever comes first. By that deadline, the defense must provide its notice of defenses in writing, specifying all defenses the defendant intends to present at trial.

Your disclosure statement probably says you reserve the right to supplement any part of your disclosure up to and including the day of trial, but if you spring an alibi defense and accompanying witness list on the state on the eve of trial, you’re probably going to have a problem. You might end up a test case for preclusion, or more likely, you’ll end up looking at a bar complaint.

Everyone knows our clients sometimes love eleventh-hour surprise witnesses and mad scrambles before trial to gather new evidence. The system will generally admonish them for a little trickery, but not much more. When the lawyer sits on the information and fails to disclose it for no reason other than to avoid tipping his or her hand, the system isn’t nearly as kind. There will be repercussions.

Knowing just how much and when to disclose is an important part of a criminal defense lawyer’s role. It must happen within the framework of the rules, however. No matter how exciting it might be if it was, this isn’t TV drama. The Arizona criminal justice system is not brought to you by Dick Wolf. I don’t have to spoon feed my defense to the state or give the prosecutor a written draft of my intended opening statement at trial, but I can’t engage in dramatic trickery when it comes to the content of the defense.

If more people understood that, I think I’d hear a lot less about the importance of not tipping our hand.