RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – To Prepare for Late Discovery or Severance

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A Practice Manual, 4th Edition
© John E. MacDonald



To Prepare for Late Discovery or Severance



State v. Coelho, 454 A.2d 241 (R.I. 1982). The state filed an 11th hour supplemental discovery. The trial judge abused discretion when he denied the continuance, severed the case, and forced defendant to proceed to trial.

Factors to consider request for continuance in wake of untimely discovery:
Reason for non-disclosure;
Extent of prejudice to opposing party;
Feasibility of rectifying prejudice by a continuance;
Any other relevant factors. Id. at 245.
State v. Simpson, 595 A.2d 803 (R.I. 1991). In a trial of multiple defendants, it was not learned that all defendants were subjected to a neutron-activation test to determine the residue of gunpowder until the cross-examination of the lead detective. Defendants’ request for a mistrial or a continuance to secure an expert was denied. R.I.S.C. reversed.

“When, because of a failure to furnish discovery on the part of the state, a highly significant piece of information, hitherto unexpected, becomes available and when that information has a potential to alter the course of the defense completely, counsel is entitled to an effective remedy. The remedy may either be a mistrial or a continuance of sufficient duration to seek expert testimony of their own choosing and to reevaluate all the discovery material that may have a bearing upon use of the information. To require that this be done in the heat and hurly-burly of the trial process is to place a burden upon counsel that, as illustrated in this case, can scarcely be successfully borne.” Id. at 808.
State v. Chalk, 816 A.2d 413 (R.I. 2002). Trial court denied defendant’s motion for a continuance despite the state’s failure to disclose 700 (out of 800) pages of material that the defendant could have used to impeach one of three complaining witnesses. R.I.S.C. upheld.

“Ordinarily, the receipt of more than 800 pages of documents relating to a key witness late in the afternoon on the day before the witness will be cross-examined would signal that a continuance would be appropriate.” Id. at 421.
Defendant was uniquely aware of the information within the documents, and had sufficient time (six months) to determine that the 100-page disclosure was incomplete.
The trial justice examined the documents, many of which were boilerplate, and determined that the balance of the afternoon and evening was sufficient to examine them.
State v. Gordon, 880 A.2d 825 (R.I. 2005). After firing his attorney, defendant motioned for a continuance claiming insufficient time to familiarize himself with discovery materials. R.I.S.C. upheld trial court’s denial.

The trial court doubted defendant’s claim of unfamiliarity with the material because he was able to knowledgeably cross-examine one of the state’s witnesses. It further noted that defendant’s firing of eight different court appointed attorneys was more likely the cause of any unfamiliarity than the court’s denial of a continuance.

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