RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – Surprise Testimony

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A Practice Manual, 4th Edition
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Surprise Testimony



State v. Darcy, 442 A.2d 900 (R.I. 1982). In a DWI death resulting case, the prosecutor elicited a damaging admission from its witness during direct examination not previously disclosed in discovery. (The witness testified that after the accident defendant had asked him if he would admit to driving). R.I.S.C. ordered a new trial.

“It would be unfair to allow the state the tactical advantage of surprise gained by violating, whether intentionally or unintentionally, the rules of discovery.” Id. at 903.
“An attorney who expects, by reason of reliance upon the rules, that honest, accurate and complete answers will be given in response to discovery requests can scarcely be effective if his expectations are wholly shattered in the course of a trial. Id.
“When the failure of discovery results in complete surprise on a crucial issue, then we believe that due process and effective assistance of counsel will be impacted.” Id.
“Curative instructions would have been of no assistance, and even a continuance within the trial itself (a remedy that was not requested) would not have given counsel the requisite time to reassess his defense in the light of this new evidence. Once this extremely prejudicial and unanticipated evidence was admitted, only a mistrial would have placed the defendant in a position to prepare to need its effect at a subsequent trial.” Id.
State v. Ashness, 461 A.2d 659 (R.I. 1983). At trial, the state called two witnesses not named in their answer to discovery. Court allowed their testimony over defendant’s objection. R.I.S.C. affirmed.

While calling such a witness is a violation of discovery rules, forbidding a party to call a witness is such a drastic sanction that should be imposed only if the discovery violation has or will result in prejudice to the opposing party.
Here there was no prejudice. One witness’ testimony could be gleaned from the discovery afforded and the other witness was merely for purposes of chain of custody.
State v. Diaz, 456 A.2d 256 (R.I. 1983). In a murder trial, a state witness testified for the first time about the defendant’s statement that “something bad was going to happen.’ The state had not previously disclosed the existence of this statement and nothing in their response to discovery could have alerted the defense to this statement. R.I.S.C. ordered a new trial.

“The trial of a criminal case is not to be considered a poker game in which each player holds his cards close to his vest. It is, as are all trials, a search for the truth. The prosecutor’s conduct is inexcusable. It was well aware in late April what Angel was going to say in May, but it summarized his future testimony in such a fashion that nobody but a psychic could foresee that Angel’s job was to establish the element of premeditation.” Id. at 258.
State v. Pona, 810 A.2d 245 (R.I. 2002). On appeal, defendant argued that the trial judge should have prohibited the testimony of a state’s witness on the basis of undue surprise because he was not disclosed until the day before trial, and his testimony went beyond the scope of his witness statement. (The witness statement concluded with the police officer stating that he responded to a call for backup; however, he testified about what happened at the scene after his arrival.) R.I.S.C. affirmed.

No violation by the state because defendant’s initial discovery request was late and the state’s response was within the required time. Furthermore, the state disclosed the witness in a supplemental notice the day after he was interviewed by the state. To find a violation would discourage good faith compliance with the continuing duty of disclosure.
The witness statement was adequate for defendant to determine what the testimony might be. Moreover, defendant failed to make a discovery objection at trial and also denied the court’s offer of a continuance, conduct that undercuts any argument of prejudice to defendant.
Observe all discovery deadlines;
Object to discovery violations at trial;
Accept a continuance if offered in response to surprise testimony.
State v. Werner, 831 A.2d 183 (R.I. 2003). The trial court allowed the state to call a witness whose existence and area of expertise were made known to defendant even though the substance of his testimony was not disclosed. R.I.S.C. upheld finding that Rule 16 was not violated.

In an attempt to satisfy admissibility requirements for introducing photographs seized from the defendant, the state relied upon testimony of a firearms expert to establish a nexus between the weapon in the photos and the crime weapon. The judge found that defendant could not have been surprised by the testimony because the judge stated that the pictures would not be admitted until the nexus was established, the prosecution informed the court of its intent to establish the nexus, and defendant knew the witness would be called as a firearms expert.
Although the state has a continuing duty to update its discovery during the course of the trial, it appears that defendant should have inferred the substance of the testimony.

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