Help Wanted: Seeking One Good Appellate Brief that Forces the Arkansas Supreme Court to Clarify its Criminal Discovery Jurisprudence

Abstract:     
This Essay first argues that Arkansas has yet to conclusively articulate when a prosecutorial suppression of evidence in response to defense counsel's discovery request violates either the federal or state due process clauses, or the state rules of criminal procedure. More importantly, however, this Essay contends that the Arkansas Supreme Court should require prosecutors to turn over all statements in response to a specific discovery request even if those statements are only arguably “material” and “favorable to the accused.” Doing so would provide to defendants more protection pursuant to the Arkansas Constitution than they now enjoy under the Federal Constitution.

Part I outlines current Arkansas discovery practice pursuant to state rules of criminal procedure, the Federal Constitution, and pertinent judicial pronouncements addressing relevant discovery issues. Part II then briefly suggests to defense counsel a conceptual map designed to force the Arkansas Supreme Court to plug the numerous and ambiguous holes in its criminal discovery jurisprudence. The Essay concludes by arguing that Arkansas prosecutors should turn over to defense counsel all arguably favorable evidence where there is a reasonable possibility that non-disclosure could be outcome determinative.

Keywords: Arkansas, criminal discovery, discovery, due process, disclosure, prosecutorial suppression

JEL Classifications: K00, K10, K14, K19

Accepted Paper Series