Sunday, September 6, 2009

I came across the following article in the Salt Lake Tribune:

"DA making defense attorneys pay for paperwork (Lawyers complain that the fee schedule is unfair)"
By Stephen Hunt
The Salt Lake Tribune

Here is a small excerpt from the article (the full articlate can be found at

Salt Lake County District Attorney Lohra Miller says the budget crunch has her office charging defendants in criminal cases for materials they had been getting for free.

Starting this month, defense attorneys are paying for copies of police reports, photographs, videotapes and witness interviews.

Miller argues the administrative cost of processing such materials should be borne by defendants rather than taxpayers. But defense attorneys on Wednesday said they worry the multitiered fee schedule Miller has devised will mean delays in getting information needed to build their cases.

Added defense attorney Clayton Simms: "There is something fundamentally unfair about having to pay to see the evidence against you."

I know Clayton Simms. He's not just a sharp attorney, he's a good man. And he's right. There is something fundamentally unfair about requiring you to pay the government (which is prosecuting you) to divulge the evidence it has against you.

The Utah Rules of Criminal Procedure on the subject of discovery are surprisingly straightforward:

Rule 16. Discovery.

(a) Except as otherwise provided, the prosecutor shall disclose to the defense upon request the following material or information of which he has knowledge:

(1) relevant written or recorded statements of the defendant or codefendants;

(2) the criminal record of the defendant;

(3) physical evidence seized from the defendant or codefendant;

(4) evidence known to the prosecutor that tends to negate the guilt of the accused, mitigate the guilt of the defendant, or mitigate the degree of the offense for reduced punishment; and

(5) any other item of evidence which the court determines on good cause shown should be made available to the defendant in order for the defendant to adequately prepare his defense.

(b) The prosecutor shall make all disclosures as soon as practicable following the filing of charges and before the defendant is required to plead. The prosecutor has a continuing duty to make disclosure.

I don’t do as much criminal defense work as I once did, but I do enough, and when I read the article about the SLC D.A. charging for discovery, I was angered (there’s no other appropriate word for it). There is just something (on various levels) perverse about making someone charged with a crime pay for the evidence the State has against him/her.

Worse, giving discovery documents to the public defender, but making defendants who hire private counsel pay only makes this bitter pill that much harder to swallow. But it gets even worse if the D.A. plans to charge attorney time for preparing and producing discovery as well. Mr. Xais, as quoted in the Tribune article ( is right: the D.A.’s office cannot in good conscience charge for attorney time for doing the job its attorneys are already paid to do.

Even worse, to hide behind the excuse that:

“In setting our fees, we held a public hearing in front of the council which was duly noticed. We also set these fees at an amount that merely covers our costs, they are not intended (nor do they) actually raise revenue,”

- Lohra Miller,

is a bit insulting (yes, insulting; sure, I could be more diplomatic, but that would only result in being more vague and/or appearing more weak in my position too) to the majority of us who don’t follow the schedule of the Salt Lake County Council and who don’t have the option of charging opposing counsel for our time when we ourselves produce documents in discovery.

What about these possible compromises?:

1. Charge a reasonasble fee for discovery, and if the case settles or the defendant is not convicted, refund the fee to the defendant.

2. For the majority of criminal prosecutions, discoverable evidence that is stored digitally (even if primarily for the D.A.’s own internal use) can, as part of the same system, also be produced to criminal defense attorneys free of charge or virtually free of charge, if the D.A. is willing to implement the extremely simple and relatively inexpensive policies and procedures involved. And virtually all discovery documentation can be stored and produced digitally. If we limit the scope of attorneys who practice in Salt Lake County (whether they live in Salt Lake County or not) to $100 per attorney donated (yes, donated) to the D.A. to outfit itself with equipment to digitize its criminal case files prospectively, including all documents, audio, photographs, video images, and other discoverable data, this can be done. Rather than charging $25 per “initial discovery packet” per case, for every case, we can, by paying a nominal fee up front (and yes, $100 is nominal) to equip the D.A.’s office with basic, reliable equipment for digitizing its files for good. Once it has the equipment, the D.A.’s office would be responsible for maintaining the infrastructure.

- A robust scanner for documents can be purchased at retail for $350. Each secretary in the D.A.’s office would get one of these to scan paper documents and hard copies of photographs for each case file.

- .pdf document production and manipulation/editing software could be purchased as a bulk government order for every attorney at the rate of about $100.

- I can’t imagine that the Salt Lake County Sheriff’s office or the D.A.’s office uses (or wants to use) film cameras or film video cameras anymore. I can’t imagine that the Salt Lake County Sheriff’s office or the D.A.’s office uses (or wants to use) tape to record audio anymore either. Virtually any computer equipped with Microsoft Windows can store photograph, video, and audio files, without the need to purchase any new equipment, and can e-mail these files without the need to purchase any new equipment.

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