It’s time to revisit the criminal defense subpoena. Too often, government disclosures aren’t getting defendants the information they need to meaningfully counter the prosecution’s version of the facts and avoid wrongful conviction or excessive punishment. Recent exonerations and disclosure shortfalls in state and federal courts highlight this risk. Rather than rely exclusively on prosecutors to remedy this problem, criminal defendants can and should be empowered to use compulsory process to uncover the truth themselves.
This is not just about prosecutorial misconduct. The National Registry of Exonerations, for example, found that official misconduct was a contributing factor in only slightly more than half of the wrongful convictions it analyzed, a statistic that includes misconduct by law enforcement agents which may have been hidden from prosecutors.
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