Does a prosecutor have to turn over discovery materials in the possession of police?
Pursuant to State v. Knight, 734 P.2d 913 (Utah 1987), constitutional principles of due process dictate that a prosecutor’s obligation to provide discovery materials extends to materials known to, in possession of, or under the control of any member of the prosecution team.
Prosecutors sometimes erroneously believe that they are only responsible for providing discovery materials in their direct possession. But the prosecution team includes police officers or agencies involved in the investigation or prosecution of the criminal case.
Prosecution “Open File” Policies – Not Enough
A prosecutor’s “open file” policy is not a substitute for compliance with due process discovery requirements set forth in Knight and by the U.S. Supreme Court in Maryland v. Brady, and other subsequent cases. An open file policy allows defense counsel to confirm that nothing has been accidentally left out in discovery production, but does nothing to protect against intentional or systematic omissions by a prosecution office.
Unfortunately, history and experience have shown that some prosecutors do not take seriously their obligation to full disclosure of exculpatory materials. They may be slow to request materials from other prosecution team members, or they may fail to follow up on such requests. “We have given the defense everything we have” is an all-too-common prosecution reply heard when defense attorneys raise concerns in court.
Vigilance by defense attorneys is critical to ensuring that the prosecution meets its discovery obligations.