Fifth & Sixth Amendment

The Sixth Amendment’s confrontation clause provides the defendant with the right to confront witnesses and dispute evidence against him. [1] In order to be better able to craft arguments against opposing witness testimony and evidence, the defense relies on the discovery process to gain advance notice about the evidence and witnesses the prosecution intends to use against the defendant, and because the criminal justice system aims to give both sides a fair chance when presenting their arguments, the prosecution is also entitled to use the discovery process to obtain information about the evidence and witnesses the defense intends to use to defend the defendant.[2]

The Fifth Amendment guarantees that no person shall be compelled to be a witness against himself. [3]  Because of this fact, the Fifth Amendment issues regarding defense reciprocal discovery obligations are that the defense must be careful that information given to the prosecution pursuant to the discovery process does not violate the Fifth Amendment’s guarantee against self incrimination. This means that to protect the defendants constitutional rights, the defense must scrutinize the information it might consider releasing under the reciprocal discovery doctrine for its appropriateness. 

For instance, information that will be introduced at trial such as the defendant’s alibi, or any affirmative defenses are pieces of information that do not violate the fifth amendment self-incrimination clause in that not only are the alibis and defenses are exculpatory in nature, but they are pieces of evidence that will ultimately be introduced into the trial and the prosecution will have a chance to rebut. As such, pursuant to the Federal Rules of Criminal procedure, rule 16(b), they can be subject to discovery in order to allow the prosecution a chance to prepare arguments to refute this evidence. [4]

Other evidence that is allowable under rule 16 includes giving notice of witnesses who are to testify, including what they plan to testify about and real or documentary evidence about the crime which will be introduced at trial. [5] Williams, supports the constitutionality of allowing this type of discovery. [6] In Williams, the court held that Florida’s notice of alibi statute which called for the defense to permit discovery of alibi defenses and the witnesses who would testify in support of the alibis did not violate the defendant’s constitutional protections against self-incrimination.

Rather, the court held that the evidence was exculpatory in nature. [7] From Williams, we can extrapolate the rule that when the evidence is exculpatory in nature, there cannot be a Fifth Amendment self-incrimination violation. The rationale is that exculpatory evidence is simply the opposite of incriminating evidence. We can then also apply this rule to other situations where the defendant intends to claim affirmative defenses such as self-defense, entrapment, insanity, and necessity because they fit into the category of being exculpatory in nature.  

Compelling the defense to disclose whether the defendant intends to testify violates the Fifth Amendment, as well as compelling the defendant to identify witnesses who will not testify at trial. Also being compelled to disclose evidence that will not be introduced at trial is a violation because this evidence is protected by attorney client privilege. [8]

[1] U.S. Const. amend. VI.

[2] John L. Worrall, Criminal Procedure: From First Contact To Appeal 294 (2010).

[3] U.S. Const. amend. V.

[4] Fed. R. Civ. P. 16.

[5] Id. 

[6] Williams v. Florida, 399 U.S. 78 (1970).

[7] Id. [8] Worrall, supra, at 298.

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