CONSEQUENCES/SANCTIONS FOR FAILURE OF A PARTY IN CRIMINAL CASE TO PUT A NAME ON WITNESS LIST
From MN Bench Book - Trial Procedures & Practices for Judges
In all felony and gross misdemeanor cases, “[t]he defendant shall supply the prosecuting attorney with the names and addresses of persons whom the defendant intends to call as witnesses at the trial,” and “[t]he prosecuting attorney shall disclose to defense counsel the names and addresses of the persons intended to be called as witnesses at the trial.” Further, both parties bear an ongoing duty to update their witness list In misdemeanor cases, however, disclosure of witnesses is not required.
Sanctions for a failure to disclose are at the trial court’s discretion. There are three options: (1) Do nothing; (2) Grant opposing party a continuance; and (3) preclude the witness from testifying.
- The reason why disclosure was not made;
- An inadvertent or justified failure, such as the late discovery of a witness by the offering party, supports a continuance. The prompt disclosure of a late witness supports a finding of good intent.
- An intentional failure to disclose supports exclusion. A mere lack of justification for the delay supports a finding of bad intent, and thus exclusion.
- When the situation involves the late disclosure of an exculpatory witness by the prosecution in a criminal trial, the misconduct is governed by Brady standards.
- When the situation involves the late disclosure of an undercover informant by the prosecution in a criminal trial, more leeway is granted.
- The extent of prejudice to the opposing party;
- The feasibility of rectifying that prejudice with a continuance.
- 49 M.S.A., Rules Crim.Proc., Rule 9.02, subd. 1(3)(a). “All defense witnesses in a criminal case must be disclosed.” State v. Patterson, 587 N.W.2d 45, 50 (Minn.1998), denial of post-conviction relief affirmed 670 N.W.2d 439.
- 49 M.S.A., Rules Crim.Proc., Rule 9.01, subd. 1(1)(a).
- 49 M.S.A., Rules Crim.Proc., Rule 9.03, subd. 2.
- 49 M.S.A., Rules Crim.Proc., Rule 7.04.
- “Rules of Criminal Procedure do not indicate the consequences for failure to comply with discovery rules, but caselaw states that the imposition of sanctions for discovery rules violations is within the district court's discretion.” State v. Burns, 632 N.W.2d 794, 797 (Minn..App.2001); see also State v. Adams, 555 N.W.2d 310, 311 (Minn.App.1996) (“Appellate court may not overturn trial court's ruling on alleged violation of discovery rules absent clear abuse of discretion.”)
- 49 M.S.A., Rules Crim.Proc., Rule 9.03, subd. 8.
- 52 M.S.A., Board on Judicial Standards Rule 9(f); State v. Chamberlain, Minnesota Supreme Court File Number 46282, order dated October 16, 1975; State v. Rasinski, 464 N.W.2d 517 (Minn. Ct. App. 1990), affirmed in part, reversed in part 472 N.W.2d 645 (Minn. 1991). See also Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).
- “Our cases may be read to condone the preclusion of a witness only in extreme cases of violation of discovery rules by a defendant, where prejudice to prosecution cannot be cured by any other means.” State v. Rasinski, 472 N.W.2d 645, 649 (Minn. 1991).
- State v. Lindsey, 284 N.W.2d 368 (Minn. 1979); State v. Hall, 315 N.W.2d 223 (Minn. 1982); State v. Buchmann, 380 N.W.2d 879 (Minn. Ct. App. 1986); State v. Gurske, 424 N.W.2d 300 (Minn. Ct. App. 1988); State v. Richards, 495 N.W.2d 187 (Minn. 1992).
- Late disclosure was excused when “[d]efense attorney stated that he learned name of witness and informed state and trial court of his identity after meeting witness in hall of court building during trial one day before he attempted to have witness testimony.” State v. Hatton, 389 N.W.2d 229, 235-36 (Minn.App.1986), review denied.
- The prosecutor disclosed an expert report about four weeks before trial, but the prosecutor had just received it. Motion to suppress the expert's testimony was denied, but the court allowed her to be interviewed and proferred a continuance to defense counsel if he believed it necessary. Wedan v. State, 409 N.W.2d 266, 269 (Minn. Ct. App. 1987); see also State v. Stewart, 360 N.W.2d 430, 432 (Minn. Ct. App. 1985) (A request for exclusion was properly denied when “[t]he record shows that the prosecutor gave reasonable notice to defense counsel under the circumstances. The prosecutor did not learn of the witness until just before trial and defense counsel was given a complete opportunity to interview the witness before he was called as a witness.”)
- Exclusion upheld when “there is at least some indication in the record that the failure to disclose was willful or calculated. [The witness] was under subpoena by defense counsel prior to trial, yet was neither listed by defense as a witness as required by Minn. R.Crim. P. 9.02, nor otherwise disclosed to the state. Defense counsel displayed a pattern of failing to obey discovery rules, including asserting a non-existent “right of surprise” to rebut Brayboy's testimony, disobeying court orders for disclosure, and refusing to turn over discovery documents. A known witness, who was under subpoena by defense counsel and who actually appeared at trial to confer with defense counsel, should have been disclosed pursuant to Minn. R.Crim. P. 9.02.” State v. Patterson, 587 N.W.2d 45, 51 (Minn.1998), denial of post-conviction relief affirmed 670 N.W.2d 439; State v. Smith, 313 N.W.2d 429, 430 (Minn. 1981), “We emphasize, however, that we will not tolerate intentional abuses of the discovery process by the prosecutor and that we will not hesitate to reverse on this ground if the facts warrant it.” See State v. Hall, 315 N.W.2d 223 (Minn. 1982); State v. Schwantes, 314 N.W.2d 243 (Minn. 1982); State v. Zeimet, 310 N.W.2d 552 (Minn. 1981).
- “While this may not have been motivated by bad faith, neither can it be discerned from the record that there was justification for such disregard of the discovery obligation.” State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979); see also State v. Zeimet, 310 N.W.2d 552, 553 (Minn. 1981) (“[B]earing in mind the lack of justification for the prosecutor's failure to disclose, we reverse and remand for a new trial.”), appeal after remand, 348 N.W.2d 338 (1984).
- A Brady violation, which is a violation of due process, occurs when the “state has suppressed evidence material to guilt or innocence that is favorable to the accused.” State v. Burrell, 697 N.W.2d 579, 603 (Minn.2005) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963)). The three components necessary for a ‘true Brady violation’ are that (1) the evidence at issue is favorable to the accused, (2) the evidence was willfully or inadvertently suppressed by the state, and (3) actual prejudice to the accused resulted. Pederson v. State, 692 N.W.2d 452, 459 (Minn.2005) (quotation omitted).
- The identity of an informant “shall not be subject to disclosure if the prosecuting attorney files a written certificate with the trial court that to do so may endanger the integrity of a continuing investigation or subject such witnesses or persons or others to physical harm or coercion…” State v. Perez, 2000 WL 1577106 (Minn.App.,2000). “Although the state is privileged to maintain channels of communication about criminal activities by shielding the identity of an informer, the privilege to withhold an informant's identity is limited by the fundamental requirements of fairness. Thus, the public interest in protecting the flow of information must be balanced against the individual's right to prepare his defense.” State v. Houle, 257 N.W.2d 320, 323 (Minn.1977). Thus, a defendant has a heavy burden to prove it is necessary to disclose an informant's identity at an omnibus hearing. State v. Brunes, 373 N.W.2d 381, 385 (Minn.App.1985), pet. for rev. denied (Minn. Oct. 11, 1985). An in camera hearing may be ordered where the defendant makes a “substantial preliminary showing” that the affiant knowingly, or with reckless disregard for the truth, included a false statement in the warrant affidavit and that the false statement is necessary to a finding of probable cause.” Id. at 384 (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)); see also State v. Luciow, 308 Minn. 6, 13-14, 240 N.W.2d 833, 835 (1976) (some form of disclosure of a confidential informant is necessary if the court determines that probable cause could not be established without such disclosure).
- The actual prejudice suffered. See, e.g., State v. Smith, 2000 WL 890420 (Minn.App.,2000) (Defendant appealed, alleging that the late notice of a prosecution witness prevented him from presenting the case alluded to in opening comments. The appellate court denied the motion, reasoning that the defendant was able to present the same theory, albeit in a different manner.)
- In some cases, a short continuance is believed sufficient to cure the prejudice caused by nondisclosure of a witness. See, e.g., State v. Rasinski, 472 N.W.2d 645, 648-49 (Minn.1991) (witness called to impeach, nature of witness allowed the state to prepare to examine witness if given continuance); State v. Hatton, 389 N.W.2d 229, 236 (Minn.App.1986) (characterizing the sanction as “extremely harsh”), review denied (Minn. Aug. 13, 1986). (a continuance would provide the state an opportunity to prepare for a meaningful cross-examination). However, where the disclosure is made on the day trial is set or later, Minnesota courts have found the prejudice to the other side is great and a continuance will not provide the other side enough time to investigate the new witness. See, e.g., State v. Lindsey, 284 N.W.2d 368, 373-74 (Minn .1979) (giving notice of a new witness after the close of the state's case is too late); State v. Widell, 530 N.W. 566, 570 (Minn.App.1995) (giving notice of new witness on the first day of trial is too late for state to investigate), review denied (Minn. May 31, 1995).