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DISCOVERY VIOLATIONS BY THE PROSECUTION AND THE DEFENSE - MN Bench Book - Trial Procedures & Practices for Judges
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DISCOVERY VIOLATIONS BY THE PROSECUTION AND THE DEFENSE

From MN Bench Book - Trial Procedures & Practices for Judges

Discovery rules are based on the proposition that the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial and are designed to enhance the search for the truth.[1]

A. Violations by the Prosecution

Rules That Present the Most Issues

Oral disclosure meets the discovery rule test.[2]

Refusal to disclose the name of an informant.[3]

(a) If the informant was an eyewitness to the crime, the courts have at times, ordered disclosure; if he was merely a participant in the crime, but not a witness, the courts would protect his identity. Even if the informant was an eyewitness, Standard 510 requires the judge to order disclosure only if he finds on the basis of an in-camera showing or hearing that there was a reasonable probability that informant’s testimony is necessary to a fair determination of guilt or innocence.
(b) Whether informant’s testimony will be material to the issue of guilt: If there is little likelihood that an informer’s testimony will be helpful to defendant in overcoming an element of the crime charged the disclosure is not required.
(c)Whether the testimony of officers is suspect: If the court has some good reason to doubt the credibility of officers who testify against defendant, then the court should examine the informant in-camera to establish whether his testimony would be necessary to a fair determination of the defendant’s guilt.
(d) Whether the informant’s testimony might demonstrate entrapment: Even if the informer’s testimony would be relevant to an entrapment defense, the courts have been loath to order disclosure when they feel the defense would be unavailing. The defendant must explain precisely what testimony he thinks the informant will give and how this testimony will be relevant to a material issue of guilt or innocence.[4]

No discovery obligations for government agencies we don’t control.[5]

For example, the Bureau of Alcohol, Tobacco and Firearms as a federal agency does not report to the Hennepin County prosecutor’s office within the meaning of Minn. R. Crim. P. 9.01, subd. 1(7).[6]

The State does not have to give notice of rebuttal witnesses.[7]

Consequences of Discovery Rules Violations

If the prosecution violates the discovery rules the judge must make a decision about what to do about it. There are two major options: sanctions or dismissal.

Sanctions
The imposition of sanctions for violations of discovery rules is a matter for sound judgment and discretion of the trial court. In exercising this discretion the trial judge should take into account:[8]

  1. The reason why disclosure was not made;
  2. The extent of prejudice to the opposing party;
  3. The feasibility of rectifying that prejudice by a continuance;
  4. Other relevant factors.

Dismissal

Failure to disclose is not grounds to dismiss unless defendant shows actual prejudice.[9]

The prejudice test not necessary unless violation is egregious and the court invokes the punishment rule.[10]

B. Violations by the Defense

The same rules apply to the defense as the State.

All defense witnesses in a criminal case must be disclosed pursuant to Minn. R. Crim. P. 9.02.

Consequences of Discovery Rules Violations

Suppression of the potential defense witness is an appropriate remedy for purposeful defense discovery violations.

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.[11]


  1. See State v. Patterson, C8-97-1759 (Minn. 1998).
  2. See State v. Sanoski, 377 N.W.2d 503 (Minn. Ct. App. 1985).
  3. See State v. Wiley, 366 N.W.2d 265 (Minn. 1985); Syrovatka v. State, 278 N.W.2d 558 (Minn. 1979).Compare Minn. R. Crim P. 9.01, subd. 3 and Minn. Stat. § 611A.035.
  4. Syrovatka v. State, 278 N.W.2d 558 (Minn. 1979).
  5. See State v. Roan, 532 N.W.2d 563 (Minn. 1995).
  6. See State v. Roan, 532 N.W.2d 563 (Minn. 1995).
  7. See State v. Rasinski, 464 N.W.2d 517 (Minn. Ct. App. 1990); State v. Rasinski, 472 N.W.2d 645 (Minn. 1991)(reversed on other grounds).
  8. See State v. Lindsey, 284 N.W.2d 368 (Minn. 1979).
  9. See State v. Ramos, 492 N.W.2d 557 (Minn. Ct. App. 1992).
  10. See State v. Kaiser, 486 N.W.2d 384 (Minn. 1992).
  11. See State v. Patterson, C8-97-1759 (Minn. 1998); see also State v. Irwin, 379 N.W.2d 110 (Minn. Ct. App. 1985).