Make The Prosecutor Cooperate! Arguing Motions to Compel Pretrial Discovery

Defendants have the Constitutional right to know and review evidence that the Prosecutor intends to use against them. Unfortunately, some Prosecutors don’t always want to cooperate in giving this evidence. Motions to Compel make the Prosecutor follow their obligations to give this evidence.

Why Do It?

Motions to Compel ask the court to order the Prosecutor to produce the documentation or information requested. If the Prosecutor doesn’t follow the court’s order, they might face sanctions from the court for failing to comply with the discovery requests. So in short, these motions are a trial tactic made to ensure the Prosecutor performs their obligations under the case law and court rules. Sometimes, the evidence requested by defense counsel is either insufficient or unavailable. If that happens, an effective and aggressive defense attorney will either seek dismissal of the charges or negotiate a favorable downward reduction. For example, there are many times when alleged victims and witnesses are either unwilling or unavailable to testify. Because interviewing witnesses is an essential part of a reasonable investigation, the Motion to Compel forces the Prosecutor to find their witness and ensure their cooperation. The failure to locate uncooperative witnesses puts all parties on notice that the Prosecutor’s case might be weak. Consequently, they might reduce or dismiss the defendant’s case.

What is the Case law Supporting the Motion to Compel?

The United States Constitution and the Washington Constitution both guarantee a criminal defendant the right to Defense Counsel. In order to provide constitutionally adequate representation, Defense Counsel must at a minimum, conduct a reasonable investigation enabling informed decisions about how best to represent the defendant. The prosecution may not interfere with this investigation. Indeed, under CrR 4.7 the Prosecutor is OBLIGATED to provide the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at any hearing or trial, together with any written or recorded statements and the substance of any oral statements of such witnesses. The Prosecutor must provide reports or statements of experts, physical or mental examinations, scientific tests, experiments, books, papers, documents, photographs and tangible objects which the Prosecutor intends to use at trial. The Prosecutor must provide any record of prior criminal convictions known to them of the defendant, witnesses and victims. The Prosecutor shall disclose any electronic surveillance, including wiretapping, of the defendant’s premises or conversations to which the defendant was a party. They must disclose any expert witnesses whom they will call at the hearing or trial, the subject of their testimony, and any reports they have submitted to the Prosecutor. And the list goes on. For a complete illustration of the Prosecutor’s discovery obligations please review CrR 4.7 cited in this legal guide.

What Happens If the Prosecutor Fails to give the Evidence Requested?

Under court rule CrR 4.7(7) if at any time during the course of the proceedings the Prosecutor has failed to comply with an applicable discovery rule or a Court Order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, dismiss the action or enter such other order as it deems just under the circumstances. Willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court. Sanctions are an extreme remedy rarely handed down by judges. Nevertheless, I’ve seen judges dismiss cases from the bench when I’ve proven the Prosecutor has little evidence and has failed to obey discovery rules. The Motion to Compel is an extremely effective tactic in making sure the Prosecutor follows their pretrial obligations to reveal the evidence they intend to use at trial. Hire an experienced, effective and aggressive attorney to argue these pretrial motions. Best-case scenario, you might get your case reduced or dismissed.

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