New Ethics Opinion on Incarcerated Defendants’ Right to Review Discovery

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Many criminal defense lawyers are reluctant to give incarcerated clients copies of discovery materials. Lawyers may worry that the materials will be stolen by other inmates, who will then use the information in the materials to bolster false claims that the defendant confessed to them. And lawyers may believe that certain clients simply should not have access to certain materials, such as the addresses and phone numbers of witnesses or alleged victims. But what if a client insists on having a copy of discovery materials? A new State Bar ethics opinion addresses this issue.

The inquiry. The Bar received the following inquiry:

Lawyer represents Defendant in a criminal case. The state has provided Lawyer with discovery as PDF files [and audio and video recordings].

Lawyer reviewed the discovery and provided Defendant with a summary of the evidence. Defendant demands that he be provided a copy of the entire 1,200 pages of discovery and be allowed to view/listen to the 17 hours of video and audio recordings.

Does Lawyer have an ethical duty to comply with the client’s demand?

The ruling. The Bar began by noting that a lawyer has an ethical duty to keep a client “reasonably informed about the status of a matter.” Rule 1.4. It stated that the duty normally may be discharged by “providing the client with a summary of the discovery materials and consulting with the client as to the relevance of the materials to the client’s case.”

However, the Bar ruled, upon the client’s request, a lawyer must allow the client

the opportunity to meaningfully review relevant discovery material unless one or more of the following conditions exist: (1) the lawyer believes it is in the best interest of the client’s legal defense to deny the request; (2) a protective order or court rule limiting the discovery materials that may be shown to the defendant or taken to a jail or prison is in effect; (3) such review is prohibited by the specific terms of a discovery agreement between the prosecution and the defense lawyer; (4) because of circumstances beyond the defense counsel’s control, such review is not feasible in light of the volume of discovery materials and the time remaining before trial or before a decision must be made by the client on a plea offer; or (5) disclosure of the discovery materials will endanger the safety or welfare of the client or others.

While some of exceptions appear to be rather elastic, the opinion establishes a clear general rule that a client may insist on seeing or hearing virtually all discovery materials.

The opinion does not require a lawyer to provide the client with a “physical copy” of the materials. Apparently, the lawyer may sit with the client while the client reviews the materials, and then may collect the materials back up. Indeed, in some cases, such as when the client is illiterate or the discovery materials require playback equipment that is not available in the jail, there seems to be little alternative to sitting with the client and reviewing the materials together. While this might be time-consuming, the Bar specifically stated that inconvenience to the lawyer is not a basis for denying a client access to discovery materials. The opinion does not address situations where a lengthy in-person discovery review may overburden a jail’s limited visitation capacity.

In other instances, providing a physical copy may be the most practical way to comply with a client’s request. IDS, which generally will not pay for the printing of digital discovery, will do so if necessary to satisfy a client’s request for discovery. (See page 8 of this IDS memorandum.) In some cases, it may be necessary to consider a jail’s personal property rules when deciding whether providing an inmate with a physical copy is of discovery materials is feasible.

Other jurisdictions. Jurisdictions seem to vary considerably in their approach to this issue. Some presume that a defendant is entitled to review discovery materials, subject to exceptions and limitations. See, e.g., Johnson v. United States, 2014 WL 295157 (D.S.C. Jan. 27, 2014) (stating that “[w]hile a defendant generally has a right to review the discovery materials that will be used against him at trial . . . it is not improper to restrain counsel from leaving discovery materials with the [defendant] in jail to safeguard the material contained therein”). Others generally prohibit represented defendants from receiving discovery materials. See, e.g., People v. Savage, 838 N.E.2d 247 (Ill. Ct. App. 2005) (noting that by rule, Illinois prohibits defense attorneys from providing copies of discovery materials to their clients, and rejecting several legal challenges to that rule). See also this post about a similar rule in Connecticut. The new North Carolina rule leans more towards giving the defendant access to discovery than do most other states.

Redaction. In response to a related inquiry about the propriety of redacting information such as “the address of a witness or pictures of an alleged rape victim,” the Bar ruled that a lawyer could use his or her “professional judgment” to determine the necessity of such redactions.

Your thoughts. This ethics opinion attracted considerable attention as it moved through the State Bar, with smart lawyers disagreeing about how this issue should be addressed. Readers, what do you think of the final opinion? Does it strike the right balance? Will it affect your practice significantly? How feasible is it to leave voluminous paper discovery with incarcerated clients? Do the exceptions swallow the rule? If the file belongs to the client and the client can demand the file at the conclusion of the case under Rule 1.16 and CPR 3, does it make sense that an incarcerated defendant can’t have all the contents of the file while the case is ongoing?

9 comments on “New Ethics Opinion on Incarcerated Defendants’ Right to Review Discovery

  1. the defendant should be most familiar with the situation and might find something that his lawyer missed. he should be given access to ALL materials.

    • Agreed Mr. walker

  2. In state cases I give a copy of the open file material to my client. If the documents ran into hundreds of pages I might ask if he really needs to have all that. If he still wanted it, I would probably give it to him. Today it is usually possible to play recordings or video on a computer, which I have done with that kind of evidence.

    In federal cases, the discovery agreements prohibit turning over physical copies of the documents. Clients are generally not satisfied with that. I once spent about 7 hours in a jail waiting while my client went page by page through the material. That was a mostly a waste of time for me, but it is not unheard of for legal procedures to require wasting time.

  3. This seems to strike a reasonable balance between the needs of the client to be able to review the specifics (after all, one lawyer’s summation of documents might differ from another, and in those differences the client might know key elements that could help his defense) and the desire to protect interested parties (witnesses who may be testifying against the client specifically, but other examples exist I’m sure).
    I’m not a lawyer, but I am involved in the legal system, and I feel that this is a fairly solid ruling that does the best it can. Like any compromise ruling, no one should be 100% happy with the decision, and that seems to be the case here, so if everyone’s a little upset they probably have it right.

  4. This opinion is not only about access to material. It also is about possession. There is no question that the client has the right to know the content of the discovery. The primary question is whether the client has a right to his or her own copy of the discovery (the opinion says no). And the opinion does not make a distinction as to the custodial status of the client with respect to having a physical copy of the discovery. With respect to the client having access – that is seeing the actual discovery, the opinion leaves considerable leeway. The important point is that it allows attorneys to exercise professoinal judgment within the constraints of court orders or agreements concerning client access to discovery. This opinion in no way reduces the obligation of counsel to inform his or her client of the content of the discovery material. It simply allows counsel to exercise professional judgment in how to do this.

  5. I take it this inquiry arose in the context of trial. I wonder to what extent this ruling would apply to (a) post-conviction discovery, and (b) post-conviction client access to trial discovery.

  6. As a non-lawyer, it has always concerned me that all English speaking nations have adopted highly adversarial criminal justice systems that have as their goal the adoption of the most credible version of the truth, rather than the actual truth. Credibility turns on many factors, not all necessarily readily apparent to the accused & this fact among many others, renders the system inherently unfair. Unfortunately, all manner of adjudication follows the adversarial model, from assessment of Veterans’ injury claims to professional regulatory panels conducting disciplinary hearings. The major failing of adversarial systems is the incentive that is created to engage in behaviour directed at limiting one’s opponent’s chances of prevailing, such as a prosecutor withholding exculpatory evidence from the defence, an all too common occurrence. Adversarial systems are riddled with opportunities for misconduct, yet provide strong measures granting immunity to those who transgress, as long as such transgression was not deliberate & purposeful. It is hard enough to overcome the confounding factors of confirmatory & other biases that are frequently utilised by prosecutors to prejudice juries against defendants. In many European jurisdictions, the criminal justice system is based on an inquisitorial model, with the judiciary having an independent investigatory role that applies a measure of quality control to the efforts of police & prosecutors & reduces the incidence of misconduct by limiting the creation of a “win at all costs” mentality. Such a system was highly successful in the famous Italian Mafia Trials, where hundreds of prosecutions were successfully concluded & the risk of corruption minimised by the appointment of a very small number of senior judges to the role of investigating magistrate. They led expert teams whose job entailed ensuring that all evidence was legitimate, that none had been withheld & that interviews had been professionally obtained, without prejudice. The issue of an accused’s access to material relevant to his defence becomes less fraught when an high ranking & powerful instrument of the state focuses on getting to the bottom of things, rather than attempt to determine cases bogged in the mud of such confounding factors as race, proficiency with language, educational level attained, financial status, reputation & criminal history. Perhaps consideration might be given to expanding the availability of less adversarial processes in the criminal justice arena, much has occurred in the conciliation, arbitration & mediation arenas.

  7. Considering a whopping 2.5 million inmates; and most inmates having court appointed Defense whom get paid if they loose the case or win the case. It is utterly important that Defendants have access to all of the materials and actively are allowed to prepare with their Defense Attorney. Face fact ‘it is their life’ and not that of the Attorney’s, ergo keeping this information from them, can be detrimental to their case and it is unfair.

  8. if they want them they should get them. I had a case where did not want to send them ot a def charged with murder.
    I told him the risks. he demanded them. he gave them to another inmate to help him withmotions. the other inmate copied them word for word and then wrote the investigator my client confessed. he had all the facts. At trial the other inmate was the star witness. he was an complete liar. Professional law enforcement officers from his home town of came to court and told the jurors the witness was a liar and should not be believed. aquittal but very dangerous.

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