Too Little, Too Late: Ineffective Assistance of Counsel, the Duty to Investigate, and Pretrial Discovery in Criminal Cases

60 Pages Posted: 30 Apr 2008

See all articles by Jenny Roberts

Jenny Roberts

American University - Washington College of Law

Date Written: 2004


Unlike rules governing discovery in civil cases, which require that the two sides exchange most information about their respective cases, criminal discovery results in a highly limited flow of information. This is particularly true in the dozen or so states that follow the restrictive federal rule, which is premised in part on the idea that a defendant is not entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case ever get to that stage. In these jurisdictions, defense counsel gets almost no information about the state's case.

Yet pre-trial investigation of the prosecution's case and possible defenses has long been recognized as a core function of defense counsel, one that is necessary to the testing of the facts in our adversarial system. Indeed, counsel's Sixth Amendment duty to provide effective assistance of counsel encompasses the duty to "make reasonable investigations or . . .make a reasonable decision that makes particular investigations unnecessary."

The right to effective assistance rings hollow when restrictive discovery rules render an attorney unable to investigate the facts of the case. The situation is presented most starkly with an innocent defendant, who knows nothing about the facts of the case against him and thus has no information to share. How can counsel investigate enough to make informed choices about trial defenses when the client can say no more than "I know nothing about these charges"? An assumption that a defendant has enough information about the case to allow for investigation flies in the face of the constitutional right to a presumption of innocence.

There are clear connections among the effective assistance of counsel, the duty to investigate and discovery. It is the aim of this article to both explore those connections and to urge a Sixth Amendment analysis of restrictive discovery rules.

The Supreme Court has considered discovery almost exclusively through the lens of due process under the Fourteenth Amendment. Scholarship on discovery also largely fails to explore the validity of restrictive discovery under such a Sixth Amendment analysis.

Reconsideration of the discovery framework is timely for two reasons. First, the Supreme Court has injected new life into defense counsel's constitutional duty to investigate in two recent decisions which reversed death sentences. In Williams v. Taylor, for the first time the Supreme Court found ineffective assistance of counsel based on defense counsel's inadequate investigation. In Wiggins v. Smith, the Court found that defense counsel's paltry investigation into mitigation evidence for Wiggins's capital sentencing hearing did not comport with "prevailing professional norms."The second reason that reconsideration of the analytic framework is timely is that the recent debate over fairness in the death penalty has led to a greater understanding of the causes of wrongful convictions and to the identification of inadequate investigation as a core cause. This is perhaps the driving force behind the Court's renewed attention, in Williams and Wiggins, to failures to investigate. If adequate investigation can help protect against wrongful conviction, then courts must give the constitutional duty to investigate real meaning by giving defense counsel the discovery they need in order to investigate.

In Parts I and II, this Article explores counsel's duty to investigate in the context of the Sixth Amendment and links the duty to the discovery process. Part III summarizes the purpose of pretrial discovery in criminal cases and discusses why the three major contentions in support of restrictive discovery--likely perjury by the defendant, lack of reciprocity in the discovery process, and potential witness intimidation - lack validity. The Article concludes by suggesting that the prophylactic rule of open file discovery is an appropriate remedy for the constitutional conflict between the duty to investigate and state barriers to the information necessary to carry out that duty.

Suggested Citation

Roberts, Jenny, Too Little, Too Late: Ineffective Assistance of Counsel, the Duty to Investigate, and Pretrial Discovery in Criminal Cases (2004). Available at SSRN: or

Jenny Roberts (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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