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In all state and federal courts, statutes provide civil litigants with the ability to learn almost everything about an opponent and their case. Litigants in slip-and-fall lawsuits, medical malpractice actions, and breach of contract cases may serve interrogatories and requests for admissions on opposing parties; may use depositions to force their opponents, and the opponents’ witnesses, to testify under oath prior to trial; and may use the civil discovery process to force their opponents to provide reams of documents and records that may or may not have a direct bearing on the litigation.

However, in criminal actions, when personal liberty and sometimes life itself are at stake, citizens are left to chance regarding the jurisdiction in which they are charged and whether they are allowed access to the evidence in the possession of the prosecution before going to trial. And although there remains the constitutional protections afforded by Brady v. Maryland¹ and its progeny, one need only review reports from organizations such as the Innocence Project² and the Northern California Innocence Project³ to understand that Brady violations remain a systemic problem within the American criminal justice system. A study by the North California Innocence Project of Santa Clara University School of Law, found Brady violations to be “among the most pervasive forms of prosecutorial misconduct.”⁴ 

This article explores the problems inherent in current discovery systems still in place in some states, problems with relying on Brady v. Maryland as a means of obtaining discovery, and effective arguments that can be advanced to force open the files of the prosecution.

Open-File Discovery Around the U.S.

Prior to 2004, discovery procedures in criminal cases in North Carolina and several other states operated in much the same manner as the federal discovery system. The North Carolina system of discovery tracked Federal Rule of Criminal Procedure 16, which was premised upon the Jencks Act. Under the Federal Rule and North Carolina’s previous rules of discovery, a defendant was entitled to receive copies of his statements, the statements of any co-defendants (provided the State intended to offer a co-defendant’s statement at trial), and the reports of any examinations and tests made in connection with the case.

In North Carolina, the defendant was not entitled to receive the statements of witnesses for the prosecution until the witnesses had testified at trial.⁵ Even under that scenario, if the prosecution contended that any part of a witness’ statement was irrelevant to the trial, the prosecution could request that the court excise certain portions of the statement before disclosing it to the defense.⁶ 

However, with the advent of exonerations through DNA evidence and a more concentrated focus on the reasons behind wrongful convictions, a few states began to review the discovery rules in criminal cases. As a result, reforms directed at ensuring full and fair disclosure of evidence began to move forward.

As of 2004, approximately one-third of the states (including California, Florida, New Jersey, Illinois, Michigan, and Pennsylvania) had implemented relatively broad discovery rules modeled on the American Bar Association standards.⁷ These standards include:

(1) requiring prosecutors to promptly respond to, and make a diligent effort to comply with, legally proper discovery requests;

(2) requiring prosecutors to “promptly seek to identify all information in the possession of the prosecution or its agents that tends to negate the guilt of the accused, mitigate the offense charged, impeach the government’s witnesses or evidence, or reduce the likely punishment of the accused if convicted”; and

(3) requiring prosecutors, before the trial of a criminal case, to make timely disclosure to the defense of information described in paragraph (2) that is known to the prosecutor, regardless of whether the prosecutor believes it is likely to change the result of the proceeding.⁸ 

In 2004, North Carolina became the first state to enact legislation requiring prosecutors to provide full open-file discovery, which requires automatic disclosure of all nonprivileged information in the prosecution’s entire file.⁹ In 2010, Ohio, which operated under a rule similar to Fed. R. Crim Pro. 16,¹⁰ adopted a new version of its Criminal Rule 16 with the stated purpose of providing more open discovery in criminal cases.

Still, as of 2004, about a dozen states adhered to the highly restrictive federal rule, “which is premised in part on the idea that a defendant should not be entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case ever get to that stage.”¹¹ The remaining states fell somewhere in between the Federal Rule 16 and the ABA standards.¹² 

In 2009, The Legal Aid Society, headquartered in New York, New York, noted that a leading treatise identified 14 states that provided criminal defendants with the least discovery in the nation (New York, Alabama, Georgia, Iowa, Kansas, Kentucky, Louisiana, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Wyoming, and Virginia).¹³ In those states, and the states that do not have open-file discovery laws or discovery laws modeled on the ABA standards, criminal defendants and their attorneys are often left to fight for discovery under the constitutional discovery provisions provided by Brady v. Maryland.¹⁴ 

The Problem With Relying on Brady v. Maryland to Procure Discovery

The struggle for pretrial discovery in criminal cases almost inevitably leads to the prosecution-centric argument that any concerns related to the discovery of exculpatory or impeachment material are cured by a prosecutor’s obligations to disclose such information under the dictates of Brady v. Maryland and its progeny.¹⁵ However, as studies like those conducted by the North California Innocence Project¹⁶ and the Innocence Project¹⁷ have illustrated, Brady violations remain among the most pervasive forms of prosecutorial misconduct. One needs look no further than the U.S. Supreme Court decisions of the last three to four years — involving prosecutors’ failures to turn over exculpatory evidence¹⁸ — to comprehend that Brady violations remain a systemic problem. Additionally, when reviewing the number of cases involving the prosecution’s failure to disclose exculpatory evidence addressed by the Supreme Court since the Brady decision, there appears to be at least one case involving Brady violations for every decade since Brady was decided. For a judicial body that accepts less than one percent of cases for review, it would seem that the number of cases involving Brady claims, and for which relief was granted, signifies a systemic problem with prosecutors failing to disclose Brady material.

Violations of the Brady doctrine remain a pervasive problem within the American criminal justice system, particularly in those jurisdictions that adhere to the same philosophy as that which created Fed. R. Crim. Pro. 16. As recently as March 2012, a report released by Special Prosecutor Henry F. Schuelke III, investigating prosecutorial misconduct in the prosecution of Alaska Sen. Ted Stevens, revealed that federal prosecutors and an FBI agent deliberately and wrongfully attempted to convict a sitting U.S. Senator on corruption charges that they knew, or should have known, were unfounded in fact. The report indicated that federal prosecutors engaged in “systematic concealment of significant exculpatory evidence which would have independently corroborated [the senator’s] defense.”¹⁹ The constitutional requirement to disclose exculpatory evidence, remains a quantum leap in the rights of criminal defendants under the due process clause of the 14th Amendment.²⁰ This article is in no way intended as a criticism of the principles espoused in Brady or its progeny. However, relying on Brady, in the hope that prosecutors will follow its constitutional mandate, is not realistic given the nature of the adversarial system of justice.

Brady Creates Conflicting Roles for Prosecutors

The criminal justice system is designed to be adversarial. Because of that adversarial culture, prosecutors inherently bring to the system a perspective that is in direct contrast to that of defense attorneys. In criminal cases, prosecutors must shoulder the dual responsibilities of ensuring that justice is served and of securing convictions.²¹ Given the adversarial nature of the criminal courts and the dual roles prosecutors must fulfill within that system, it is unrealistic to expect them to review evidence with a mindset directed towards obtaining a conviction and then, at the same time, switch thought processes to that of defense attorneys in order to ensure that they meet Brady obligations. Under a system in which Brady provides the primary means by which favorable evidence is provided to defendants, prosecutors are forced play competing roles within the criminal justice system. On one hand, the prosecutor is the zealous advocate for the State, while on the other the prosecutor must pretend to have the mind of a defense lawyer in order to determine whether any evidence in his possession falls within the parameters of what is considered Brady material.²² 

The prosecutor is a zealous advocate who is tasked with aggressively seeking convictions on behalf of the state. However, as a representative of the state, the prosecutor is also charged with the task of seeking the truth.²³ Thus, at the trial level, the prosecutor’s duty to effectuate compliance with Brady devolves into the duty of the prosecutor as an advocate for the state. This competing role, in which the prosecution must engage, poses a serious impediment to the implementation of the Brady rules.²⁴ 

It is through the role of truth seeker that the prosecutor must relinquish his competing role as a zealous advocate and review the evidence in criminal cases with a mindset directed at identifying materials that will ultimately undermine his own case.²⁵ Engaging in this type of mental gymnastics and role reversal is entirely counterintuitive to the role as advocate. Thus, this “conflicting duality,” coupled with the political and public pressures for convictions at any cost, provides the impetus for some prosecutors to opt for dishonest conduct and downplay or fail to disclose evidence that is potentially favorable to the defense.

This conflicting duality may also explain why some otherwise ethical prosecutors fail to turn over potentially favorable evidence. As an advocate, a prosecutor, like a defense attorney, brings a certain mindset and biases to the process. Within this mindset, a prosecutor may view certain evidence and decide that it is favorable to the prosecution, whereas a defense attorney may view the same piece of evidence as favorable to the defense. What may appear exculpatory to a defense attorney — or lead to the discovery of exculpatory evidence through additional investigation — may appear only tangentially relevant to a prosecutor.²⁶ Even though the prosecutor has the duty to disclose favorable evidence, unless he can determine what evidence is, or is not, favorable to the defense, the prosecutor may not view a particular piece or type of evidence as being potentially favorable to the defense and will thus choose the path of nondisclosure.²⁷ In other words, the particular value placed upon evidence by either side depends upon the role of the advocate who considers the evidence.

The Problems of Open-File Policies In Jurisdictions Lacking Statutory Open-File Discovery

In some prosecutorial agencies, an attempted solution to the problem of the lack of disclosure in criminal cases has been the creation of the open-file discovery policy. For instance, prior to the advent of true open-file discovery in North Carolina, the practice of “open-file” discovery was executed on an ad hoc basis from one prosecutorial office to another. When true open-file discovery was practiced by a particular prosecutorial office, it could be a wonderful privilege. However, it was only a privilege. Prior to 2004 in North Carolina, the right to open-file discovery was not established by statute or through case law. Additionally, because it was an informal procedural policy, and therefore implemented differently among prosecutorial districts, the term “open-file discovery” did not have a clear definition. The phrase was typically used to suggest that defense attorneys were entitled to see the materials provided to the prosecution by law enforcement. However, open-file discovery in North Carolina before 2004 did not equal complete and total access to all information or case materials provided by law enforcement; nor did it mean that the defense was allowed to view everything within the prosecution’s files. “Open-file” simply meant that the defense was allowed to view what the prosecution and law enforcement had decided to place in their files and what the prosecution would allow the defense to see.

The nature of open-file discovery in North Carolina during that time also meant that defendants’ ability to procure discovery was subject to the particular inclinations of prosecutors in any particular district. For instance, a prosecutor in District A may have allowed the defense unfettered access to the state’s file, including allowing the defense to copy all documentation in the file. A prosecutor in neighboring District B may have allowed unfettered access to the file, while maintaining a policy that the defense was only allowed to look at the file but was not allowed to have a copy of the contents of the file. A prosecutor in District C may have allowed the defense to look at certain documents in the file, but not others, and may have required that the defense ask permission to copy documents or only allowed certain documents to be copied.

The same was true in Ohio before the 2010 reform of its discovery rules. The biggest changes to Ohio’s discovery rules, in 2010, concerned the availability of witness statements and police reports in advance of trial. In certain jurisdictions within Ohio, availability of that type of documentation was the standard practice. However, in other jurisdictions prosecutors were free to conduct the prosecution “strictly by the book.” It was a patchwork across the state.²⁸ 

Consequently, defendants in states where “open-file” discovery is only an informal procedure that varies between prosecutorial offices will likely find that in a jurisdiction where a prosecutor’s office adheres to a true “open-file” policy defendants will receive more information with which to evaluate their cases than defendants charged in districts where the prosecutor either closes the files or dispenses information pursuant to that particular state’s rules of discovery. The result is that the level of information provided and the ability to evaluate and strategize the best way to defend a client will depend entirely upon the jurisdiction in which the defendant is charged.

Arguing the Existence Of a Constitutional Right to Full Disclosure in Criminal Cases

Pretrial discovery in criminal cases can be mandated by any of five different authorities: statute, court rule, the judiciary’s “inherent right to grant discovery when necessary to achieve justice, common law, and the Constitution.”²⁹ While the prosecutors of many states, including North Carolina before 2004, have set forth the argument that no right to discovery existed at common law,³⁰ as a means to convince the courts to deny defendants access to information about their cases prior to trial, an effective argument can be made that the Sixth and Fourteenth Amendments to the U.S. Constitution require full disclosure to the defense of all records and materials prior to trial in a criminal case. What follows are arguments the writer used in pretrial motions and found effective before open-file discovery reform in North Carolina to (1) obtain rulings from the trial courts requiring the prosecution to provide true open-file discovery or (2) convince prosecutors to provide true open-file discovery by impressing upon them the possibility for appellate court reversal such as building a case for a prosecutorial misconduct claim if they only provided discovery selectively.

The Confrontation Clause: The Link Between the Need for Full Pretrial Disclosure and the Right Of Cross-Examination

The U.S. Supreme Court has long recognized that the primary interest secured by the Confrontation Clause of the Sixth Amendment is the right of cross-examination,³¹ one of the most zealously guarded rights in the administration of justice.³² However, while most recitations of the Sixth Amendment include the phrase “the right to confront and cross-examine witnesses,” the Confrontation Clause has not been found to be so narrow as to allow only the right of confrontation and cross-examination. Instead, the U.S. Supreme Court has held that the Confrontation Clause provides “the opportunity for effective cross-examination.”³³ That phrase must become the mantra of defense attorneys when using Confrontation Clause jurisprudence to move trial courts to order full disclosure in criminal cases. The reasoning behind utilizing the Confrontation Clause in order to obtain full disclosure is based upon the following inquiry: How does a defense attorney have the opportunity for effective cross-examination without being given the tools to prepare for cross-examination (i.e., true open-file discovery)?

Perhaps the most critical component of effective cross-examination is the opportunity to prepare for cross-examination by outlining and/or writing out the questions to be asked on cross-examination. From that principle flows the concept that the most critical component of preparation for cross-examination is complete information about the case. The ability to study, dissect, analyze and reanalyze the statements of witnesses — to learn about the witnesses character, their potential for bias, their ability to observe, and their credibility — is the very essence of effective cross-examination. Thus, the ability to prepare for cross-examination must be recognized as a primary component of the Confrontation Clause.

Without the information with which to prepare, cross-examination cannot be effective. Without effective cross-examination, the rights to a fair trial and due process become a sham. In the expanse of writings and treatises on the subject of trial advocacy and cross-examination, one theme presents itself time and again as the critical component of effective cross-examination: the ability to prepare for cross-examination.³⁴ 

Confrontation Clause jurisprudence not only grants a criminal defendant the right to face his accusers and adverse witnesses at trial, it also ensures that the defendant has the opportunity to test the recollection of witnesses and sift their conscience.³⁵ Inherent in the Confrontation Clause is the principle that testing the accuracy of testimony is so important that the absence of proper confrontation calls into question the ultimate integrity of the trial itself.³⁶ 

These principles relate directly to the basic premise of preparation for cross-examination. How can an advocate properly test the recollection of witnesses and their conscience without a basic understanding of what they stated to law enforcement and the prosecution during the investigation? How is the accuracy of testimony tested if the defense attorney does not have the ability to review the prior statements of witnesses before they testify? Clearly, the primary method for preparing to cross-examine a State’s witness is to have the information relating to the witness and her recollection of the facts in advance of trial.

Effective cross-examination is entirely destroyed by the denial of access to information that would serve as the basis for cross-examination. As Justice Brennan observed, “[w]here denial of access is complete, counsel is in no position to formulate a line of inquiry potentially grounded on the material sought.”³⁷ 

The impetus to hinder a defense counsel’s ability to effectively cross-examine prosecution witnesses has been argued by some scholars as the driving force behind the enactment of the Jencks Act and the influence it had on the discovery procedures in the states:

Clearly, both the federal and the old Ohio rules were designed for no other purpose than to limit effectiveness of defense counsel, despite condemnation going back to at least 1807. The idea that the prosecution could thwart the defense from preparing for cross-examination was no doubt popular, especially immediately after Jencks was decided. This was, after all, during the height of anti-communist sentiment in the United States. …

That the rule survives should be considered anathema. The argument, reduced to its basics, is two-fold. First, the rule operates to deny a defendant the right to counsel. The assistance of counsel necessarily means the assistance of effective counsel. Jencks Act-type rules are specifically promulgated to hinder preparation for trial by denying counsel copies of witness statements until after the witness has testified on direct examination.³⁸ 

Thus, it follows that any deprivation of the right to prepare for cross-examination violates the fundamental right to the opportunity for effective cross-examination. A breach of that right, such as that committed by the proscription against pretrial disclosure of prosecution witnesses’ identities, statements, police reports, etc., calls the entire trial process into question and deprives defendants of a basic constitutional right. Without recognition of the right to prepare for cross-examination and the right to access to the materials for such preparation, the right of cross-examination is itself rendered void of any meaning.

Full Pretrial Disclosure and the Right to a Fair Trial and Effective Assistance of Counsel

Full pretrial disclosure of discovery in a criminal case also implicates a defendant’s right to effective assistance of counsel under the Sixth Amendment. While most of the discourse concerning the effectiveness or ineffectiveness of trial counsel centers on actual negligence of trial counsel,³⁹ full pretrial discovery is implicated through the principle of “presumed ineffectiveness.” The U.S. Supreme Court has recognized those occasions when, although an attorney is available to assist a defendant, the circumstances surrounding that representation are such that any lawyer, even a fully competent one, would fail to provide effective assistance. In these cases, prejudice is presumed without inquiry into the actual conduct of the trial attorney.⁴⁰ 

Such circumstances are present when trial counsel in a criminal case does not receive full pretrial access to police reports, memoranda, witness statements, and myriad other materials generated by a criminal investigation for preparation of cross-examination and for preparation of the trial itself.

Under strict adherence to discovery statutes patterned after the Jencks Act, the defense must wait until a witness has testified before being allowed to view the witness’s statements. The defense is further prohibited from viewing any of the reports or other documents created by law enforcement. In those districts in which the prosecution follows the discovery statutes strictly, the defense is required to ask for a continuance or recess in order to review a witness’s statement and then proceed with cross-examination.

This process ignores the realities of trial work. In order for a trial to be fair and for cross-examination to be effective, information concerning a criminal case must be viewed in its entirety and not in its individual parts. For defense counsel to be effective, she must be allowed to have Witness A’s statement to determine its value to the State’s case and the defense case. But, counsel must also be allowed to determine how Witness A’s statement relates to the statements of Witness B, the report of the investigating officer, and how the statements of A, B, and C relate to each other and the investigating officer and so forth. Metaphorically speaking, a defense attorney needs access to all the trees in order to make an effective evaluation of the entire forest.

Effective advocacy and the right to a fair trial demand that the defendant and the defense attorney have the ability to view all of the evidence prior to trial. These rights require the ability to look at certain pieces of evidence repeatedly and at a time when the defense attorney is not embroiled in the heated exchange of a criminal trial. In essence, the rights to effective assistance of counsel, fair trial, and the opportunity for meaningful cross-examination require the ability to view all of the evidence in a criminal case before trial.

The Supreme Court emphasized the importance of fact development in criminal cases.

The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.⁴¹ 

There is perhaps no function of defense counsel more critical than the pretrial investigation of the prosecution’s case and of possible defenses.⁴² The vast majority of cases never proceed to trial, so while a defense attorney’s ability to cross-examine and her work in the courtroom are of great importance, it is the attorney’s work in the preparation of the case that is as important as the courtroom performance.⁴³ 

If we truly value the presumption of innocence and we recognize the reality that many defendants are not equipped to provide their attorneys with the information needed for an effective investigation, then the role of discovery in the investigatory process is clear. The highly restrictive discovery that exists in a significant number of jurisdictions constitutes government interference with the effective assistance of counsel.⁴⁴ 

As a result of the problem of prosecutorial misconduct involving the nondisclosure of favorable, material evidence, the time has arrived for criminal defense attorneys in every jurisdiction to demand full and total access to the prosecution’s file in order to effectively and zealously advocate on behalf of their clients. Requiring full disclosure of the prosecution’s file and requiring law enforcement and prosecutorial agencies to turn over their files for review would not only protect the defendants’ rights to effective assistance of counsel, confrontation and cross-examination, and due process, but would also help to advance the ultimate endeavors of the criminal justice system — the protection of the innocent, the punishment of the guilty, and the revelation of the truth.

Notes

1. Brady v. Maryland, 373 U.S. 83 (1963).
2. Emily M. West, Court Findings of Prosecutorial Misconduct Claims in Post-Conviction Appeals and Civil Suits Among the First 255 DNA Exoneration Cases (2010).
3. Kathleen M. Ridolfi & Maurice Possley, Preventable Error: A Report on Prosecutorial Misconduct in California 1997 — 2009 (2010).
4. Id.
5. N.C. Gen. Stat. § 15A-903(f)(1).
6. N.C. Gen. Stat. § 15A-903(f)(3).
7. The Justice Project, Expanded Discovery in Criminal Cases: A Policy Review (2007) (citing Jenny Roberts, Too Little Too Late: Ineffective Assistance of Counsel, the Duty to Investigate, and Pretrial Discovery in Criminal Cases, 31 Fordham Urb. L.J. 1097, 1100 (2004)).
8. Standards for Criminal Justice: Prosecution Function § 3-5.5 (Proposed Revisions 2010).
9. N.C. Gen. Stat. § 15A-903 (2010). North Carolina moved to an open-file system of discovery in 2004. S.L. 2004-154, S.B. No. 52 (N.C. 2004).
10. Charles L. Grove, Criminal Discovery in Ohio: ‘Civilizing’ Criminal Rule 16, 36 U. Dayton L. Rev. 143 (2011).
11. Jenny Roberts, Too Little Too Late: Ineffective Assistance of Counsel, the Duty to Investigate, and Pretrial Discovery in Criminal Cases, 31 Fordham Urb. L.J. 1097, 1100 (2003).
12. Id.
13. The Legal Aid Society, Criminal Discovery Reform in New York: A Proposal to Repeal C.P.L. Article 240 and to Enact a New C.P.L. Article 245 (2009) (citing 5 Wayne R. Lafave et al., Criminal Procedure, § 20.2(b), n.31 (3d ed. 2008)).
14. Brady, supra note 1.
15. Brady, supra note 1; United States v. Agurs, 427 U.S. 97; United States v. Bagley, 473 U.S. 667, (1985); Kyles v. Whitley, 514 U.S. 419 (1995); Cone v. Bell, 556 U.S. 449 (2009); Smith v. Cain, 132 S. Ct. 627 (2012).
16. Emily West, supra note 2.
17. Id.
18. See Smith v. Cain, supra note 15; Connick v. Thompson, 131 S. Ct. 1350 (2011); Cone v. Bell, supra note 15.
19. Henry F. Shuelke III, Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009, at 1, available at http://www.nacdl.org/discoveryreform.
20. U.S. Const. amend. XIV.
21. The Justice Project, supra note 7.
22. Scott E. Sundby, Fallen Superheroes and Constitutional Mirages: The Tale of Brady v. Maryland, Washington and Lee University School of Law Public Law and Legal Theory Research Paper Series, Research Paper No. 02-12 (Nov. 2002).
23. Id.
24. Id.
25. Id.
26. The Justice Project, supra note 7.
27. Id.
28. Charles Grove, supra note 10.
29. The Justice Project, supra note 7 (citing Palermo v. United States, 360 U.S. 343 (1959).
30. State v. Harden, 42 N.C.App. 677, 257 S.E.2d 635 (1979); (See also Britt v. North Carolina, 404 U.S. 226 (1971); North Carolina v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 (1964); New Jersey v. Tune, 13 N.J. 203, 98 A.2d 881, (1953); Rex v. Holland, 4 TR 691, 100 Eng.Reprint 1248; 2 Wharton’s Criminal Evidence § 671 (12th ed.).
31. Douglas v. Alabama, 380 U.S. 415 (1965); Smith v. Illinois, 390 U.S. 129 (1968); Pointer v. Texas, 380 U.S. 400 (1965); Davis v. Alaska, 415 U.S. 308 (1974); Delaware v. Fensterer, 474 U.S. 15 (1985); Crawford v. Washington, 541 U.S. 36 (2004); Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011).
32. Hannah v. Larche, 363 U.S. 420 (1960); Davis v. Alaska, 415 U.S. 308 (1974); Delaware v. Fensterer, supra note 31; Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
33. Deleware v. Fensterer, supra note 31.
34. “Better preparation of the case will inevitably produce cross-examinations. … If the lawyer wishes to give better cross-examinations, preparation is essential.” (Larry S. Posner & Roger J. Dodd, Cross-Examination Science and Techniques, 2d (2004)). Preparation before trial is the only soil from which, in the day-to-day run of cases, successful cross-examination can grow. (McCormick, Treatise on Evidence 60 (Cleary ed. 1972)). “Most lawyers who tell you of brilliant cross-examination will not confess this: We are entranced by a brilliant flash of insight which broke the witness, but the plain truth of the matter is, as brother to brother, that 99 percent of effective cross-examination is once more our old friend ‘thorough preparation,’ which places in your hand a written document with which to contradict the witness. That is usually the great gift of cross-examination.” (Louis Nizer, The Art of Jury Trial, 32 Cornell L.Q.59, 68 (1946)).
35. Douglas v. Alabama, supra note 31 (citing Mattox v. United States, 156 U.S. 237 (1895)).
36. Ohio v. Roberts, 448 U.S. 56 (1980).
37. Pennsylvania v. Ritchie, supra note 32.
38. Charles Grove, supra note 10.
39. Strickland v. Washington, 466 U.S. 668 (1984).
40. United States v. Cronic, 466 U.S. 648 (1984); Powell v. Alabama, 287 U.S. 45 (1932).
41. Jenny Roberts, supra note 11 (citing United States v. Nixon, 418 U.S. 683, 709 (1974) and Taylor v. Illinois, 484 U.S. 400, 408-09 (1988).
42. Id.
43. Id.
44. Id.

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