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Criminal Law Quarterly

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statutory law, discovery, Rule 16, exculpatory information


Criminal Law | Criminal Procedure | Law


In R. v. Stinchcombe, the Supreme Court of Canada held that the Crown has a legal duty to disclose all relevant information, exculpatory and inculpatory, to a defendant charged with an indictable offence. Left undiscussed by the decision, and by Canadian decisional and statutory law generally, is the scope of discovery against the defence. A description and analysis of the American experience in this regard may be of interest to Canadian practitioners and academics.

Prior to the middle of this century, defence attorneys and prosecutors in the United States depended on preliminary hearings and informal exchanges to obtain information about the other side's investigative efforts. Since the adoption of Rule 16 in the Federal Rules of Criminal Procedure, in 1946, the scope of discovery has expanded considerably, in an effort to eliminate surprise and improve the accuracy of the fact-finding process. All of the states have followed the federal lead and in many cases have gone far beyond it.

The law concerning defence discovery against the government has been the most uniform. The U.S. Supreme Court has held, as a constitutional matter, that information which has a "reasonable probability" of changing the "result" of a case in the defence's favour must be disclosed to the defence.



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