Undiscovered: The Broadening of the Defense's Discovery Obligations in Maryland

Discovery in a criminal case is the process by which the prosecution is forced to turn over certain evidence to the defense and vice versa. "In 2008, the rules governing discovery in Maryland were revised and the scope of discovery broadened." 8 Maryland Practice: DUI Handbook § 5:7 (2014 ed.). In particular, criminal defendants in Maryland are now required to disclose much more than they were required to disclose pre-2008.

Prior to 2008, Maryland Rule 4-263(d) governed the discovery obligations of criminal defendants:

(d) Discovery by the State. Upon the request of the State, the defendant shall:

(1) As to the person of the defendant. Appear in a lineup for identification; speak for identification; be fingerprinted; pose for photographs not involving reenactment of a scene; try on articles of clothing; permit the taking of specimens of material under fingernails; permit the taking of samples of blood, hair, and other material involving no unreasonable intrusion upon the defendant's person; provide handwriting specimens; and submit to reasonable physical or mental examination;

(2) Reports of experts. Produce and permit the State to inspect and copy all written reports made in connection with the action by each expert whom the defendant expects to call as a witness at the hearing or trial, including the results of any physical or mental examination, scientific test, experiment, or comparison, and furnish the State with the substance of any such oral report and conclusion;

(3) Alibi witnesses. Upon designation by the State of the time, place, and date of the alleged occurrence, furnish the name and address of each person other than the defendant whom the defendant intends to call as a witness to show that the defendant was not present at the time, place, and date designated by the State in its request.

(4) Computer-generated evidence.Produce and permit the State to inspect and copy any computer-generated evidence as defined in Rule 2-504.3(a) that the defendant intends to use at the hearing or trial.

Now, fast forward to 2014. After a few amendments, the discovery obligations of criminal defendants are contained within Maryland Rule 4-263(e):

(e) Disclosure by defense. Without the necessity of a request, the defense shall provide to the State's Attorney:

(1) Defense witness. The name and, except when the witness declines permission, the address of each defense witness other than the defendant, together with all written statements of each such witness that relate to the subject matter of the testimony of that witness. Disclosure of the identity and statements of a person who will be called for the sole purpose of impeaching a State's witness is not required until after the State's witness has testified at trial.

(2) Reports or statements of experts. As to each defense witness the defense intends to call to testify as an expert witness:

(A) the expert's name and address, the subject matter on which the expert is expected to testify, the substance of the findings and the opinions to which the expert is expected to testify, and a summary of the grounds for each opinion;

(B) the opportunity to inspect and copy all written reports or statements made in connection with the action by the expert, including the results of any physical or mental examination, scientific test, experiment, or comparison; and

(C) the substance of any oral report and conclusion by the expert;

(3) Character witnesses.As to each defense witness the defense intends to call to testify as to the defendant's veracity or other relevant character trait, the name and, except when the witness declines permission, the address of that witness;

(4) Alibi witnesses. If the State's Attorney has designated the time, place, and date of the alleged offense, the name and, except when the witness declines permission, the address of each person other than the defendant whom the defense intends to call as a witness to show that the defendant was not present at the time, place, or date designated by the State's Attorney;

(5) Insanity defense. Notice of any intention to rely on a defense of not criminally responsible by reason of insanity, and the name and, except when the witness declines permission, the address of each defense witness other than the defendant in support of that defense; and

(6) Documents, computer-generated evidence, and other things.The opportunity to inspect, copy, and photograph any documents, computer-generated evidence as defined in Rule 2-504.3(a), recordings, photographs, or other tangible things that the defense intends to use at a hearing or at trial.

There are at least four major differences between these two rules. First, prior to 2008, the defense only had to make disclosures in response to a request by the State. Now, the defense has to make such disclosures regardless of whether such a request was made. Second, prior to 2008, the defense did not need to provide notice of an insanity defense. Now, if a defendant plans to raise an insanity defense, the defense needs to provide notice of such a defense and the witnesses who will support that defense. Third, prior to 2008, the defense only needed to provide discovery regarding alibi witnesses. Now, the defense also needs to provide discovery regarding all defense witnesses, including character witnesses. Fourth, prior to 2008, the defense did not need to disclose prior written statements by defense witnesses. Now, the defense must disclose these prior written statements if they "relate to the subject matter of the testimony of that witness."

Serial listeners might wonder what this means about the letters written by potential alibi witness Asia McClain, who was never contacted by defense counsel. Because the case covered by the podcast  led to trials in 1999 and 2000 (i.e., before 2008), the defense would not have needed to disclose these letters to the State if it called McClain as an alibi witness.

-CM