Constitutional Limitations on Prosecutorial Discovery

39 Pages Posted: 29 Jan 2007


The purpose of this Article is to explore the constitutional implications of prosecutorial discovery and to define the limits that the Constitution imposes upon it. Following an examination of the impact of prosecutorial discovery on the accusatorial system of justice, this Article identifies and describes four constitutionally grounded principles which call into question whether prosecutorial discovery may permissibly be expanded beyond the scope of the rule upheld by the Supreme Court in Williams v. Florida. First, the fifth amendment privilege against self-incrimination, as interpreted by the Supreme Court in Williams, limits prosecutorial discovery to evidence that the defendant presently intends to use at trial, not evidence he potentially may introduce. Second, the defendant cannot be compelled before trial to disclose evidence which could support the government's case-in-chief, since otherwise she is unconstitutionally forced to choose between her sixth amendment right to present evidence and her fourteenth amendment right to defend by lack of government proof. Third, enforcement of prosecutorial discovery rules by the exclusion of undisclosed evidence may destroy the accuracy and fairness of the trial and abridge the defendant's sixth amendment right to present a defense. Finally, to the extent that the work product doctrine is incorporated in the constitutional right-to-counsel, compelled disclosure of witnesses' statements to defense counsel violates the defendant's sixth amendment rights.

Keywords: pretrial discovery, fifth amendment, self-incrimination, prosecutorial discovery, preclusion

Suggested Citation

Blumenson, Eric, Constitutional Limitations on Prosecutorial Discovery. Harvard Civil Rights-Civil Liberties Law Review, Vol. 18, p. 123, 1983, Available at SSRN:

Eric Blumenson (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States
(617) 305-1967 (Phone)
(617) 305-3087 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics