MEMORANDUM OF LAW – EXCEPTIONS TO SCHMIDT DISCOVERY
Discovery is limited in misdemeanor cases as guided by People v. Schmidt 56 Ill. 2d 572. However, in People v. Williams, (4th Dist 1980), 90 Ill. App. 3d 158, 45 Ill. Dec. 785, 413 N.E.2d 118, United States v. Nixon, (1974) 418 U.S. 683, 945 Ct. 3090, 41 L.ed.2d 1039, People v. West, (1981), 102 Ill. App. 3d 50, 57 Ill. Dec. 701, 429 N.E.2d 599, and People v. Harris, 91 Ill. App. 3d 1, 46 Ill. Dec. 256 it was decided that courts have inherent discretionary authority to order discovery in a nonfelony case for purpose of seeing that criminal trial process is fair and achieves the goal of ascertaining the truth. It was also held that disobeyance of a court order to comply with a valid subpoena is not proper manner in which to test scope of subpoena but, rather, any claim that subpoena process is being abused should be presented to trial court in motion to quash.
In these cases tests have been adopted which allow pretrial discovery under certain limited conditions under the powers of judicial discretion. Under the suggested tests to be used for deciding if an exception to the Schmidt discovery rules should be granted:
“… a party must show (1) the material sought is evidentiary and relevant; (2) the material sought is not otherwise reasonably procurable by the exercise of due diligence in advance of trial; (3) the moving party cannot properly prepare for trial without such production and the failure to obtain the materials sought may tend to unreasonably delay the trial; and (4) the application is made in good faith and in is not intended as a general fishing expedition.” (Ibid)
Considering the relevance of evidence, there is other case law that provides cause for appeal if the subpoena of and use of evidence by the defense at trial is prohibited by the court:
“Evidence concerning acts which are so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances is admissible.” People v. Olivias, 354 N.E. 2d 242, 41 Ill. App. 3d 146.
“For suppression of evidence to involve a violation of right to due process, it must be shown that he evidence was suppressed after a request for it by defendant, that the evidence was favorable to him and that it was material.” People v. Jordan, 69 Ill. Dec. 777, 448 N.E. 2d 237, 114 Ill. App. 3d 16, affirmed in part, reversed in part 82 Ill. Dec. 925, 469 N.E.2d 569, 103 Ill. 2 192, habeas corpus dismissed by U.S. ex rel. Jordan v. Detella, 1995 WL 76913.
“Evidence having a natural tendency to establish the facts in controversy in a criminal prosecution should be admitted.” People v. Jenko, 102 N.E. 2d 783, 410 Ill. 478.
“Defendant is entitled to all reasonable opportunities to present evidence which might tend to create doubt as to his guilt.” People v. Johnson, 355 N.E. 2d 699, 42 Ill. App. 3d 425.
It would be a violation of Defendant’s due process rights if she was denied the use of relevant evidence and witnesses pertaining to affirmative defenses which are material and favorable to the Defendant. The above case law suggests that a judge has the discretionary authority to order recalcitrant witnesses for the defense to come to court and submit to interview by defense counsel so that defendant may prepare defense, and even to order them to submit to interview by deposition.