Discovery: Criminal and Civil? There’s a Difference

Katharine Larson practices with Fulbright & Jaworski LLP in Houston, Texas.

Criminal and civil discovery serve different purposes. Obviously, there are significantly higher stakes present in criminal cases and that key difference plays out in the rules of discovery.

Discovery Goals

The goal of civil discovery, similar to the rules governing sporting events, is to ensure a level playing field for all parties. No one side should possess a procedural or evidentiary advantage beyond that which is particular to the specific facts of a case. The rules of civil procedure promote reciprocity and equal access to evidence.

On the other hand, one of the main goals in criminal law is the protection of a defendant’s constitutional right to a fair trial. The prosecution’s corresponding right is consequently limited. This difference affects trial strategy, particularly from the perspective of the party that bears the burden of proof.

Scope

Discovery in civil suits is broad. The Federal Rules of Civil Procedure provide that parties may discover anything that is relevant and unprivileged. As a consequence, parties are consistently required to produce evidence against themselves if the damaging evidence is within the bounds of an appropriate discovery request. This principle goes both ways. The practical result is that by the close of discovery, assuming discovery is conducted ethically, diligently, and thoroughly, each party possesses exhaustive amounts of information obtained from the other. A civil attorney then has the opportunity to analyze, distinguish, and dismantle the legal and factual theories advanced by the opposing party. Thereafter, while many things may be in doubt at the time of trial, each side’s evidentiary strengths and weaknesses are theoretically unsurprising to the other side.

Criminal discovery, on the other hand, is more restricted. The Constitution affords criminal defendants several protections. Discovery-related procedural protections include the right against self-incrimination and the right to confront witnesses. Because of these constitutional guarantees, criminal discovery tends to be rather unbalanced. For example, under the U.S. Supreme Court’s decisions in Brady v. Maryland and Giglio v. United States, the prosecution must turn over to the defendant all exculpatory and impeachment evidence in the government’s possession. A criminal defendant has no equivalent duty because of the right against self-incrimination. Additionally, in jurisdictions that require limited forms of pretrial disclosures or court-ordered depositions, requesting evidence in possession of a defendant may be useless; any evidence in the defendant’s possession that tends to support a finding of guilt is protected by the constitutional right against self-incrimination. Therefore, while the prosecution is frequently ignorant of the defense’s evidence, the defense should be well-versed in the prosecution’s evidence.

Strategy

In terms of trial strategy, civil parties must approach a case differently from criminal attorneys. Both civil plaintiffs and criminal prosecutors bear the burden of proof and the burden of presenting their cases-in-chief before the defense speaks. However, the focus of their cases-in-chief is different. A civil plaintiff is aware of the evidence possessed by the defense and is able to criticize the defense’s position during the case-in-chief.

A prosecutor, on the other hand, sometimes does not know what evidence a criminal defendant will present. Consequently, there is a higher risk that a prosecutor will oversell the strength of the government’s case. A prosecutor sometimes does not know if the defense’s evidence nullifies promises made during the prosecution’s opening statement and refutes the evidence a prosecutor presented to the jury. Therefore, a prosecutor’s trial strategy must account for the unequal scope of discovery by striking a delicate balance between zealousness and caution. A civil plaintiff must strike the same balance, but it may be calculated beforehand and presented with a confidence unavailable to a criminal prosecutor.

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