How to deal with discovery violations

Professor Colin Miller has a very interesting post regarding a new article by Cynthia Jones, A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415 (2010).

Most importantly are two potential recommendations for dealing with the issue at trial. First Professor Jones takes up the two common actions: dismissal or continuance. She explains why, as we know, dismissal is an unlikely drastic remedy, and why a continuance may be meaningless. She doesn’t directly address one of the remedies I’ve asked for: prohibit the witness testimony.

She raises two very interesting remedies: a “Brady Instruction,” partly based on Fed. R. Civ. Pro. 37(c), and an instruction on “Consciousness of a Weak Case Inference.”

I find both of these proposals to be fascinating, and I think that they are viable ideas that courts should take a long look at adopting. Indeed, I made a similar argument that the prosecution’s offer of a favorable plea bargain to a defendant (and the defendant’s rejection of it) should be admissible by the defendant to support a “consciousness of a weak case” inference in an article earlier this year (see here). But I think that Professor Jones’ argument is even more compelling given the (mis)behavior connected with Brady violations.

With that I agree. Of course this only becomes relevant at trial if the violation is discovered in time. Professor Jones notes a recent D.C. Court of Appeals case that supports the theory. Shelton v. United States, 983 A.2d 363 (2009) (Download Shelton opinion)[.]