Discovery: Must the State Act?

I recently gave a presentation at the S.C. Summary Court Judge's Association on discovery, Rule 5, and Brady. I’ve attached the PowerPoint presentation I used, as well as the materials, in case they might be helpful. One issue that was raised during the presentation, was the question of whether or not a judge could order law enforcement/prosecution to go get a piece of evidence. There seemed to be two schools of thought.

The first is that law enforcement cannot go get a piece of evidence without a subpoena duces tecum (magistrate can’t issue these types of subpoenas). It would also be a separation of powers issue if a judge forced law enforcement (executive branch) to go act in a certain way regarding the prosecution of their case. If the prosecution does not go get the piece of evidence, then the proper remedy is cross examination and a full and thorough airing of the issue in front of the jury.

The interpretation urged by Baker would transform the implied consent statute into a tool by which an accused could compel the State to gather what might be exculpatory evidence in his behalf. See People v. Culp, 189 Colo. 76, 537 P.2d 746 (1975).

State v. Baker, 310 S.C. 510, 513, 427 S.E.2d 670, 672 (1993).

The second school of thought is that if the State is on notice about the evidence (assuming it’s exculpatory, material, etc.), and they do not go get it, then the State has violated the due process rights of the defendant under Brady. Assuming arguendo that the judge cannot force the State to act, it would still be a violation of due process and the proper remedy would be found under Brady and not through cross examination.

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215 (1963).

These were some of the arguments made about the issue. What are your thoughts?