NCJ Number
5278
Journal
Harvard Law Review Volume: 85 Issue: 5 Dated: (MARCH 1972) Pages: 994-1024
Date Published
1972
Length
30 pages
Annotation
PROPOSED AMENDMENT TO GIVE PROSECUTOR THE RIGHT TO DISCOVER, BEFORE TRIAL, EVIDENCE DEFENDANT INTENDED TO INTRODUCE, AND WITNESSES HE INTENDED TO CALL.
Abstract
THE PROPOSED AMENDMENT RAISES A SUBSTANTIAL CONSTITUTIONAL QUESTION, WOULD AN ORDER REQUIRING THE DEFENDANT TO PRODUCE A WITNESS LIST, A DOCUMENT, OR AN ITEM OF PHYSICAL EVIDENCE, CAUSE HIM TO BE COMPELLED TO BE A WITNESS AGAINST HIMSELF IN VIOLATION OF THE FIFTH AMENDMENT. THIS NOTE CONCLUDES THAT THE POLICIES INHERENT IN THE FIFTH AMENDMENT PRIVILEGE AGAINST SELFINCRIMINATION INDICATE THAT THE PROSECUTORIAL DISCOVERY PROVISIONS OF THE PROPOSED AMENDMENT ARE UNCONSTITUTIONAL. IT CONCLUDES THAT THE CONTENTION THAT INCREASED DEFENSE DISCOVERY MUST BE DEPENDENT UPON INCREASED PROSECUTORIAL DISCOVERY EXAGGERATES THE RISK OF DEFENSE DISCOVERY AND IS UNPERSUASIVE.