Arguing Motions to Compel Pretrial Discovery

What is a Motion to Compel? Motion to Compel a Response to Discovery  Explained

Motions to Compel Discovery instruct the Prosecution to follow their obligations to turn over evidence to Defense Counsel. This is because 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 Discovery instruct the Prosecution to follow their obligations to give this evidence.

Why Argue a Motion to Compel Discovery?

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, Defense Counsel either seek dismissal of the charges through a Knapstad Motion or negotiate a favorable downward reduction.

Also, 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?

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 a bevy of information, including 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.

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. The willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court.