Legal Definitions - reverse discovery

Reverse discovery, in the context of criminal law, refers to the limited situations where the defense is legally obligated to disclose certain information, documents, or witness identities to the prosecution before or during a trial. Unlike the broad discovery obligations placed on the prosecution to ensure a fair trial for the defendant, the defense's duty to disclose is much narrower, primarily due to constitutional protections like the Fifth Amendment right against self-incrimination and the Sixth Amendment right to counsel. These disclosures are typically triggered by specific defense strategies or court rules, aiming to prevent surprise and ensure the prosecution has a fair opportunity to respond to certain defense claims.

• Example 1: Alibi Defense Notification

  Scenario: A defendant in a robbery case plans to argue that they were at a different location with a specific friend when the crime occurred.

  Illustration: Many jurisdictions have rules requiring the defense to notify the prosecution in advance if they intend to present an alibi defense. This notification typically includes the location the defendant claims to have been and the names and addresses of any witnesses who will support that alibi. This "reverse discovery" allows the prosecution to investigate the alibi and its witnesses before trial, preventing a "trial by ambush."

• Example 2: Expert Witness Disclosure

  Scenario: In a case involving forensic evidence, the defense hires an independent ballistics expert who will testify that the bullet found at the crime scene could not have come from the defendant's gun.

  Illustration: If the defense intends to call an expert witness, court rules often mandate that they provide the prosecution with a summary of the expert's expected testimony, their qualifications, and any reports they have prepared. This "reverse discovery" allows the prosecution to understand the expert's findings, prepare for cross-examination, and potentially call their own rebuttal expert.

• Example 3: Intent to Use Specific Evidence

  Scenario: The defense in a fraud case discovers a series of emails between the victim and a third party that they believe will prove the victim was aware of the alleged fraud and was complicit. The defense plans to introduce these emails as evidence during the trial.

  Illustration: Some court rules require the defense to disclose any documents, recordings, or physical evidence they intend to introduce at trial, especially if they were not previously provided by the prosecution. This "reverse discovery" ensures the prosecution is aware of the evidence the defense plans to present, giving them an opportunity to verify its authenticity or prepare arguments against its admission.