NCJ Number
77704
Journal
Tulane Law Review Volume: 52 Dated: (1977-1978) Pages: 769-792
Date Published
1978
Length
24 pages
Annotation
This article examines the dangers to a defendant in concurrent criminal and civil proceedings under the present Federal rules of discovery and proposes a possible solution.
Abstract
In concurrent proceedings the difference between the scopes of discovery permitted by the Federal criminal and civil rules of procedure threatens to strain the integrity of both proceedings. The possibility exists that a party to a criminal proceeding will use the liberal civil discovery provisions to enlarge the scope of discovery in the criminal case, while the opponent is denied the same benefit. If the prosecutor is able to circumvent the discovery restrictions imposed by the criminal rules, two harms may result. For example, by use of depositions or other testimonial evidence gathered through civil discovery, the prosecutor may be able to negate the criminal defendant's privilege against self-incrimination. Also, by destroying the balance of information made available to the parties by the criminal discovery rules, the prosecutor may subject the criminal defendant to a fundamentally unfair trial. Similarly, if the criminal defendant is able to circumvent the criminal discovery provisions, the inordinate knowledge of the prosecutor's case obtained through civil discovery may hamper the Government's prosecution. Thus, a provision should be incorporated into the Federal Rules of Civil Procedure which would prevent information gathered through civil discovery from leaking into a criminal proceeding. Such a provision should limit the discretion of the trial judge to grant or deny protection to the offended litigants, operating automatically when concurrent criminal proceedings arise during the course of a civil case. The article includes 108 footnotes. (Author abstract modified)