Experienced Nashville Defense Firm

Why Tennessee's Criminal Discovery Rules Are Obsolete?

It is high time that Tennessee's criminal discovery rules change. Here is just one example. The Tennessee Bar Journal reported on a recent disciplinary sanction for a Tennessee lawyer. The lawyer wrote a book on a couple of murder trials that he had prosecuted. In the book, he discusses some facts that were not disclosed to the accused. It was an apparent Brady violation to not disclose favorable or exculpatory evidence to the defense. Once the convicted murderer discovered the disclosure, he filed a bar complaint, a motion for a new trial and a petition error coram nobis. It was alright for the lawyer to disclose the facts to sell his book, but the violation came from him withholding those facts from the defendant during the trial. Both federal and state prosecutors in Tennessee have banded together to fight the Tennessee Board of Professional Responsibility's new ethical rules mandating the disclosure of favorable or exculpatory evidence in criminal matters.

My solution to this problem is open file discovery. Currently, Rule 16 of the Tennessee Rules of Criminal Procedure restricts discovery to cases in Circuit Criminal Court. It does not apply to cases in General Sessions Court. It also limits the types of discovery you can obtain. There are some rules that prevent the copying of critical evidence. For example, forensic interviews in child sex cases or child abuse cases can be viewed but not copied.

I will say, some Middle Tennessee prosecutors are progressive and have adopted an open file discovery process. Basically, you set up a meeting with the assistant district attorney, and he/she opens up the file for you to review. In fact, one of my favorite prosecutors was in Cheatham County. We would meet early in the morning, and I would review his entire file, copy whatever I wanted, have a cup of coffee, and we would discuss the case openly. We were actually able to resolve a fair number of cases this way.

It is only fair to the person who faces the power of the government to have the benefit of open file discovery. It would eliminate problems that we see over and over like the example above of a lawyer writing about non-disclosed case details in his book. The criminal process needs to be made more transparent, and open file discovery should be adopted in Tennessee.