Supreme Court of Nevada Finds Prosecutors Must Disclose Information About Prospective Jurors Obtained From Government-Only Databases

Assume that the prosecution in a criminal case accesses the criminal histories of prospective jurors by using government databases that are not available to defendants? In such a case, does the prosecution have an obligation to disclose these criminal histories to the defense? This was the question of first impression addressed by the Supreme Court of Nevada in its recent opinion in State v. Second Judicial District Court of the State of Nevada in and for County of Washoe, 2018 WL 6423961 (Nev. 2018).

In Washoe, 

Francisco Ojeda await[ed] trial for murder in the Second Judicial District Court. In a pretrial motion, he sought an order compelling the State to disclose the criminal histories of veniremembers before jury selection. Ojeda alleged—and the State did not dispute—that courts in the Second Judicial District release a list of veniremembers to both parties several days before jury selection commences. Ojeda further alleged—and again the State did not dispute—that the State using government databases then accesses criminal histories for those veniremembers that are not available to defendants. Ojeda contended that the resulting disparity in information would put him at a disadvantage during jury selection. The State disputed this point, claiming that Ojeda would not be disadvantaged because he could obtain equivalent information either from commercial databases or through voir dire.

The Supreme Court of Nevada agreed with Ojeda that he was disadvantaged by the prosecution’s exclusive access to these databases. It therefore ruled in his favor, concluding as follows:

As the State concedes in its petition, this court has the inherent authority to make procedural rules that remedy systematic unfairness in the way that judicial proceedings are conducted….Pursuant to that authority, we hold as follows: Upon motion by the defense, the district court must order the State to disclose any veniremember criminal history information it acquires from a government database that is unavailable to the defense. This holding does not require the State to access such databases; if the State refrains from doing so, then there is no disparity of information and nothing to share. Nor does this holding require the State to disclose all veniremember information it possesses—only criminal history information derived from databases unavailable to the defense.

I agree with this conclusion and think it can be defended by reference to the Supreme Court’s opinion in Wardius v. Oregon. In Wardius, the Court held that 

Although the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded,… it does speak to the balance of forces between the accused and his accuser.

Therefore, if a state requires a defendant to file an alibi notice, that state must also require the prosecution to give pre-trial notice of alibi rebuttal witnesses. In other words, in such a case, the Due Process Clause requires reciprocal discovery. The same thinking would seem to apply here.

-CM