I don’t file motions to compel. I file motions to dismiss.

Constitutions Constitute

Stating constitutions constitute feels redundant but it’s a truism we often forget. They also constrain. When lawyers use a word as much as we use “constitution,” we sometimes forget what it does: constitutes and constrains the government in everything it does.

If we take a step back and look at what either the state or federal constitutions actually do, and not just in regards to due process, they establish our state and federal governments. Their branches of government, and both what they can and cannot do. So when a prosecutor is providing discovery to the defense, that prosecutor is following the constitution by acting within its bounds.

Citizens Do Not Ask the Government to Follow the Constitution

This fundamental principle of constitutional government means the citizens should not have to constantly ask their government to follow the document that constitutes the government. Citizens should not have to constantly ask the government to have three co-equal branches, regular elections, or due process of law. These are clearly outlined in our constitutions, the very documents that allows our state and federal governments to exist in the first place. If we are going to have governments that govern us, they have to be within the bounds of our constitutions.

Motions to Dismiss

This is why I expect prosecutors to provide discovery in accordance with our state and federal constitutions without more than a discovery request (or less if the evidence is exculpatory). So when the prosecution does not follow the very document that creates the government that employs them by not providing discovery, I do not ask the court to compel them. I do not ask for them to follow the document that established the government. I expect them to do that the same way I expect elections next November without a motion to compel printed ballots.

What I do is file a motion to dismiss. If the government is going be in the business of prosecuting people, then it should follow all of the rules for prosecuting people. It is not the defense’s job to remind the government how to do its job or to follow the constitution.

Efficacy

Motions to dismiss for failing to provide discovery usually results in the government providing discovery, same as a motion to compel. Except, now they are on notice that more is expected of them, and sometimes it does work. Sometimes you catch the government off guard, and a case is dismissed.

Conclussion

“Duty then is the sublimest word in the English language. You should do your duty in all things. You can never do more. You should never wish to do less.”

I expect the same from my government. And maybe I’m just a grumpy old guy who expects too much of people, but I still won’t file motions to compel when my government doesn’t follow its own constitution. I will file motions to dismiss.