As a defendant, how much of my evidence would I be required to notify the plaintiff or prosecution that I have?
In a civil example, say I were a small business owner and a group of scammers were to stage an accident so they could sue. Unknown to them there was a security camera recording everything they did from the time they entered my property. In practicality, my lawyer would give their lawyer a copy of the video and tell them to go away.
In this case however I’m in a really bad mood and want to give them enough rope to hang themselves and everyone they know. Could I let it go to trial and let every one of them take the stand and perjure themselves blue before I rolled out the recording to judge and jury?
How about a criminal trial? I know that my lawyer would be able to subpoena everything the prosecution was planning to present in evidence. And of course the prosecution would depose me to find out my side of things. I think I’d be in the clear legally so long as I didn’t lie about anything they asked. But would I be able to withhold the fact that I have a recording that will show their key witnesses have fabricated their stories from whole cloth? Again waiting until everyone has their statements on record before dropping the boom on them and giftwrapping a bundle of perjury charges for the DA to file?
I’ll handle the civil aspect, and let Bricker or someone of similar experience handle the criminal aspect.
In a civil matter, we don’t WANT you to go to trial. So we have this process by which the two (or more!) sides get to find out what is in each other’s hands, so to speak. Think face up poker. So the starting point is that each side sends to the other side “interrogatories,” a series of (usually) standard questions such as, “do you have any of the following evidence: <snip> videos <snip>?” You are required to pony up the correct answer to these questions, and they will ask you to detail what video you have, and you have to tell them, and they will then ask to see said video, and you have to show it to them. Then they go pound sand, at which point you turn the evidence over to the local district attorney and have him charge them with fraud.
But you don’t get to hide the cards and then make a dramatic showing at the trial. If you hide the card, and then try to show it at trial, they get to have the judge exclude the video, exclude all MENTION of the video, and now, your best defense isn’t available to you and guess what? You lose to the con artists.
So, short answer: No, you don’t get to do that in a civil trial.
Well, criminal rules vary from state to state, and in Federal Court. However, nowhere, I would suspect, does the prosecution have the right to depose you. The right to remain silent, and all that. Generally, I think you could withhold evidence you intended to use solely as impeachment (i.e., catch them lying) Assuming the recording you have was legally made (many states forbid recordings without consent, and would probably prohibit the use at trial).
ON the criminal side, I believe that the federal rules provide that a defendant who requests document discovery from the Government must provide reciprocal discovery of documents and things in his or her possession.
Really? in Canada, there’s almost no obligation on the accused to provide any disclosure at all. There are a couple of historical exceptions (e.g. - must give notice an intent to call alibi evidence) and a few statutory ones (e.g. - notice of intent to file an expert report), but other than that, the accused doesn’t have to disclose anything.
Rules vary in different jurisdictions. Consult a lawyer that knows how your local judges will rule. As a practical matter, in a civil case, if it was asked for and you didn’t produced it, you cannot use it at trial. And it being asked for will be broadly construed. You may be able to game this by arranging to produce your materials after the other side has testified at deposition. But you do not ever want to avoid producing something and later have it excluded.
As others have said, in the civil context, you don’t have to give it over if it isn’t asked for. But discovery requests can be worded broadly enough that it will be asked for.
Each state is different, check your state rules. Generally, though, this is right. In the civil arena, if they don’t ask for it, you don’t have to produce it before trial and you can pull a “Perry Mason” in court. If you adversary properly asks for it before trial, though, which any smart person would, you had better hand it over, like a smart person would.
As I indicated, something like videotape will almost certainly be asked about in the standard interrogatories shipped off to your side at the very beginning of the case. Indeed, the standard set of initial interrogatories is usually so broadly worded that it requires admitting to almost any evidence you have in your possession.
Is that to say that the era of “Perry Mason” evidentiary courtroom surprises is mostly behind us? Not that it was ever as common in real life as it was on TV.
I have a question/concern about harassing people through discovery.
Suppose I want to humiliate so-and-so. I accuse this guy of molesting me as a child and sue him. Now I request access to his entire computer hard drive so that I can prove that he is a pedophile with a huge chache of child porn. Even if I don’t actually find anything, I might find all sorts of other interesting aspects of this guy’s private life and business dealings that I can use for my personal amusement and profit.
And so on for any other issue - I can tailor my lawsuit based on what what my ostensible discovery search is to be.
The other side can move to quash your discovery requests, and will do so if they’re very onerous or invasive. In the run of cases, the defense is going to lose this motion, but it does require the plaintiff to make some basic evidentiary showing that they’re not just doing it to harass someone as you suggest. If the court does decide you’re being harassing, you can be sanctioned, fined, or even in extreme cases put briefly in jail for contempt. Plus, you know, he gets access to all your stuff too.
And some jurisdictions have disclosur requirements, which eliminate the need for the sort of discovery basic discovery requests that get made in just about every case. For example:
The bolded paragraph would probably cover this document. Morover, even in jurisdictions that don’t require disclosure as part of discovery, most of the time counsel are required to exchange exhibit lists. Unlisted exhibits can be excluded from evidence. And many courts require exhibit lists to be exchanged before discover is over, subject to amendment. Of course, if the other side has a sloppy lawyer, the lawyer might gloss right over an exhibit that hasn’t been mentioned in a motion or had a big deal made about it, and I know some lawyers who don’t seem to even look at the other side’s exhibit lists until right before trial.
That’s why I chose the specific example that I did. In any he said-she said scenario, the assertions of the plaintiff are themselves a “basic evidentiary showing”.
[What makes it even better for the plaintiff in a sex-abuse scenario is that the ostensible victim can generally sue anonymously, so it’s really a win-win situation all around.]
As others have suggested criminal defendants aren’t completely exempt from disclosure requirements. While there is a lot of variation among jurisdictions, the rules often require them to give notice of certain kinds of defenses and also to disclose documents that they intend to use in their case in chief:
That’s what we call malicious prosecution (sometimes it has other names). For one thing, the other side gets to ask you questions too. If it comes out that you filed suit with no factual basis, just to humiliate the other side, you could wind up getting sued yourself, you might get sanctioned in the case you filed, and your lawyer could have problems with the bar.
That said, this sort of thing does happen, and sometimes people get away with it.
That’s called “trial by ambush”. It may make good theatre, but it makes for lousy justice.
Springing something on someone at the last moment and making the case turn on it ignores the likelihood that the other party may have a good answer to it, if given enough time to review their evidence and prepare a response. It’s rare that one document or witness amounts to a “silver bullet” that completely destroys the other side’s case.
And, in those rare cases where you do actually have a silver bullet that utterly destroys the other side’s case, you’d want to disclose it fairly early, in hopes of leading them to a settlement favourable for your client, rather than going through the major expenses of a trial. (And in Canadian civil procedure, if you have a silver bullet like that and the other side doesn’t settle, and you’re ultimately successful at trial, it can have major costs implications for the side that didn’t settle when they should have - in some jurisdictions, the successful side can get double the normal costs.)
Conversely, one disadvantage of the discovery process is that it allows dishonest people to tailor their case and testimony to available evidence, and thus enables and encourages dishonesty.
[An example of this was in the Duke Lacrosse case, in which the accuser changed the details and timeline of her story in response to publically revealed evidence that contradicted her original version. That case involved public info and not discovery, but the principle is the same in either case.]
That’s the way it works in my province, and I think in most other Canadian jurisdictions. Each party has an automatic obligation to prepare a list of all documents, videos, computer files, etc., that are in your possession and are even marginally relevant to the case, and ship the list over to the other side, early in the pre-trial process. You also have to disclose the existence of documents for which privilege is claimed, and documents that you once had in your possession but no longer have (e.g. - you’ve forwarded it to someone else and haven’t kept a copy).
The other side then has the right to inspect all the items disclosed in your list of documents. You’re under an obligation to make them available during ordinary business hours.
All of that happens before the pre-trial examination of the representative of each party, so that counsel is as fully informed as possible before starting the examination for discovery.
Failure to disclose a document in the initial statement as to documents means you can’t produce it at trial.
But that change in her story, subsequent to other information coming forward, can be used quite effectively by the opposing counsel to challenge her credibility and persuade the trier of fact that she is lying.
