Per Its “Policy,” Solicitors Allowed to Circumvent State Statute Mandating Discovery, Travis Hines v. State of South Carolina (Ct. App. 2021), filed December 8, 2021.

This case implicates an issue that has long existed in this state and has caused untold amounts of heartburn to criminal defendants and their attorneys alike.  And for good reason—there does not appear to be any statutory or other legal support for the manner in which the State handles this issue but the courts seem perfectly content to allow solicitors to dictate the law in this area even in the absence of any authority (and contrary to a state statute).

In York County, as in other areas of the state, the solicitor’s office has a “policy” of not releasing certain discovery to criminal defendants unless the defendant exercises his right to a jury trial.  In other words, in a drug distribution case, if a defendant attempts to evaluate the strength of the State’s case, it will have to do so without video evidence showing the drug distribution which is typically obtained by use a camera during the actual drug transaction.  A defendant’s lawyer may have access to still shots of the video, but the video itself will not be released to the defendant.  The policy behind this makes a fair amount of sense—the State is trying to protect the confidential informant who may be revealed in the video.

So, we have a state statute that dictates how discovery is to be produced.  These videos certainly seem to be within the ambit of Rule 5(a)(C):  Upon request of the defendant the prosecution shall permit the defendant to inspect and copy books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the prosecution, and which are material to the preparation of his defendant or are intended for use by the prosecution as evidence in chief at the trial, or were obtained from or belong to the defendant.  It looks pretty clear to me that, under the plain reading of the statute, the State has to turn over these videos, whether they like it or not.

But this case, like another case that addresses the same issue, Hyman v. State, 397 S.C. 35, 723 S.E.2d 375 (2012), addresses the issue as one of potential prosecutorial misconduct or a Brady violation.  Those approaches seem to me to be wrong.  First, I don’t see it as a prosecutorial misconduct issue because the duty to disclose these videotapes is legally ambiguous (statute says yes, case law says no).  It’s not a Brady claim because Brady would impose an additional obligation to disclose the videotapes if it shows the defendant is not guilty.  But also, the claim here is that a defendant should be able to view the evidence whether it’s exculpatory or not.  But Hyman, however, the Court also addressed the Rule 5 issue, and found (by citing to a case that did not involve a Rule 5 issue) that the State had an interest in not revealing the identity of confidential informants. See State v. Humphries, 354 S.C. 87, 579 S.E.2d 613 (2003).

I think the tension here is clear—that statute requires the production of these videotapes.   The State doesn’t want to disclose them because they’re concerned about CI safety and so they make up these policies as they go along and which feel very arbitrary if you’re a criminal defendant (or lawyer) and you get access to this information in some jurisdictions but not in others.  The tension is further heightened by these solicitors’ conditioning the right to review the material on whether a defendant intends to plead guilty or go to trial. Now it feels (from the defendant’s perspective or the lawyer’s perspective) that the bedrock constitutional right to a jury trial is being premised on access to discovery.  This gets everyone angry and is where things go completely off the tracks.  Hyman is a 2012 case.  Hines is a 2021 case.  Obviously, this issue and these tensions are not resolved.  I think in this context, our state solicitors should take a page from the federal system—standing discovery orders to provide as much protection for CI’s as possible but, at the end of the day, criminal defendants need to know the evidence against them so they can make informed decisions.  And that means a criminal defendant actually gets to see the discovery, not rely on his lawyer to interpret the images for him.  A criminal defendant’s interest in making knowing and intelligent decisions to plead guilty or exercise a right to trial supersedes a solicitor’s office’s policy of conditioning discovery on that defendant’s decision.  There are other ways to protect CI’s other than keeping discovery from criminal defendants as they’re trying to make life changing decisions in regards to their criminal charges.