The Open File

The crucible of Anglo-American law is the "adversary" trial, in which rival lawyers fight for their clients' claims before an impartial tribunal in a contest that idealists bill as a search for truth. In U.S. criminal trials, however, the search can be more of a game of bluff, suspense and surprise, with both sides trying to spring unexpected evidence that can demolish the unwary. Among many examples was the recent Candy Mossier murder case: a Texas convict testified that Candy had given him $7,000 to kill her husband--whereupon Defense Lawyer Percy Foreman dramatically produced the man's wife to swear that he was a dope addict and a compulsive liar.

In civil cases, truth is often far better served by means of pretrial "discovery," which makes each side equally aware of the other's evidence before the trial begins. In criminal cases without such accommodation, many critics argue, the prosecutor has all the cards. Not only does he have the police on his side, but in most states the prosecutor can hale the defendant's probable witnesses before a secret grand jury, thus discover his case before the trial, and even pressure him into pleading guilty and skipping the trial altogether. By contrast, the prosecutor's case may remain unknown until his witnesses testify in open court, perhaps too late for the defense to mount an effective cross-examination or rebuttal.

For all that, many defense lawyers are loath to change the system--at least to the extent of fully disclosing their own evidence in exchange for the prosecutor's information. As things stand now, they point out, the defendant has quite a few constitutional advantages of his own: the burden of proof is on the prosecutor and the defendant cannot be compelled to say a word that might incriminate himself.

Equal Evidence. Last week this increasingly debated impasse was broken in Connecticut's federal courts by Yale-trained U.S. Attorney Jon O. Newman, 34, a rising protege of U.S. Senator Abraham Ribicoff and a former law clerk of Chief Justice Earl Warren. Laying down a new rule that startled many crime-conscious citizens and many disappointed prosecutors, Newman announced that in his district, "full disclosure of the prosecution's evidence will be made to defense counsel a week before trial, provided defense counsel discloses to the prosecution the evidence to be presented by the defense."

Pioneered by two California Supreme Court decisions in 1956 and 1961, the "open file" concept of criminal trials received considerable impetus in 1963 when the U.S. Supreme Court ruled in Brady v. Maryland that before any verdict, the prosecutor is constitutionally compelled to disclose all information "favorable" to the defendant. Pretrial discovery, which is now being actively considered by New Jersey's high court, took one of its biggest steps forward in federal courts last July under the Supreme Court's sweeping revision of the Federal Rules of Criminal Procedure, which had previously entitled federal defendants to discover little more than the charges against them. Now, before a federal trial, lawyers can demand such prosecution evidence as the defendant's confession, his own grand jury testimony, scientific tests and other relevant documents.

Even so, the new federal rules require comparable disclosure from the defense, or there is no deal. And until the trial, the defense still cannot obtain some truly crucial evidence: the prosecution witnesses' pretrial statements--unless, of course, the prosecutor has such a strong case that he decides to reveal it in order to induce a guilty plea.

Lambasting Reciprocity. Going well beyond the minimal federal rules, Prosecutor Newman is attempting almost complete reciprocity of witnesses' statements on the theory that "the prosecution either has a case or it does not." But Newman will still bar prosecution disclosure in "any case where there exists a realistic possibility of witness intimidation," and in "cases involving complicated financial transactions," in which the defendant could "tailor" his records to rebut prosecution evidence.

Knowledgeable lawyers note other potential dangers. Once the names of the Government's witnesses are made known, the defense may attempt to bribe them, or the Government may try to cow defense witnesses. Many defense lawyers also lambaste the reciprocity requirement. As Houston Criminal Lawyer William F. Walsh puts it: "Why should the defense have to disclose anything in advance when the burden of proof is on the prosecution?"

To some extent, the impasse remains. The defense has a choice: unless it agrees to a reciprocal trade of information, the new rules leave the prosecutor's relatively limited discovery rights almost useless. Yet some defense disclosures cannot be compelled without violating a defendant's privilege against selfincrimination. All of which may still leave a trial less of a search for truth than a game of give-and-take among lawyers.

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