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In Discovery, "the prosecutor is obligated to provide to the defendant any information that is exculpatory or potentially exculpatory".

I am looking for cases where the defendant, on the other hand, can withhold incriminating evidence.

In particular, suppose that the defendant is accused of committing a crime in a manner which is scientifically debatable. The defendant directly hires 10 independent scientists to re-enact the crime, of which 9 are successful.

Can the defendant then ignore those 9, bringing only the 1 scientist in line with his defense to trial? The jury thereby never knows that 9 re-enactments worked, and only knows that 1 re-enactment failed. Going beyond the defendant, does the defendant's lawyer, if aware of all 10, have a duty to disclose all 10 to the prosecutor?

The crime occurs in Los Angeles, California, USA.

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  • This scenario occurred in the dramatization of the trial about the plane that was safely landed in the Hudson river. It was a civil case and one side reenacted in simulation trying to fly instead to the nearest airport and showed it was successful. They didn’t mention the number of unsuccessful simulated tries until specifically asked.
    – George White
    Dec 30, 2022 at 7:03
  • The lack of answers here makes me think that yes, the defendant can cherry pick (introducing only the 1 as evidence), and it is the prosecutor's job then to counter with his/her own scientist re-enactments (so there might be 12 re-enactments in total in the end, but 9 get hidden from the jury). Really?
    – bobuhito
    Dec 30, 2022 at 16:13
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    @bobuhito lack of answers can mean a lot of things, but doesn't need to mean agreeing to the premise. Do note that for experts, the prosecution can and will use cross examination to destroy that one scientist if he is an outlier in scientific standard.
    – Trish
    Dec 30, 2022 at 17:08

2 Answers 2

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The defendant in a criminal trial has no obligation to present any evidence

In the this right is absolute and no inference can be drawn from a passive defendant. In other common law jurisdictions, judges and juries are permitted to draw conclusions from the defendant’s silence.

In general, they are not required to share their evidence or case with the prosecution. However, certain avenues of defence may be closed if they don’t: for example, self-defence or insanity must be disclosed so that the prosecution can investigate and perhaps withdraw or modify the charges. In some jurisdictions, this extends to alibi defences and expert reports. Note that this only applies to evidence the defence intends to introduce.

For your specific example, there is nothing stopping this but it is a poor strategy. The outlier’s evidence will need to be given to the prosecution who will be able to show that the scientific consensus is the opposite: this may mean the court does not accept the person as an expert and excludes all their evidence. Even if this doesn’t happen, the prosecution is likely to make the “expert” look silly.

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It is true, that you do not have to incriminate yourself.

Discovery rules would still require you to turn over documents in some senarios.

Discovery rules in many states require reports made by an expert to be turned over to the prosecutor in discovery.

The prosecutor can also subpeona anything that is not prohibited otherwise.

Under those two senarios, the prosecutor would get the report if it was done by an expert.

A report would be exempt from that if it includes statements from the accused or some other exempted information.

It depends on the circumstances.

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    On this site, if you are going to rely on a source, you should proide an actual citaation, not just "look it up" preferably a cition that includes a link.
    – David Siegel
    Dec 31, 2022 at 3:02
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    Go to the supreme Court of Illinois's site. Look at rule 413. Reports being handed over is done all the time in court.
    – Jason Michaels
    Dec 31, 2022 at 3:04
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    when you give an answer on this site saying "The law is X" you are expected to cite authority to support it. It is not up to those who might post comments questioning this to cite contrary authority. This is true however well established the law might be.
    – David Siegel
    Dec 31, 2022 at 3:22
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    – Community Bot
    Dec 31, 2022 at 8:26
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    [citation needed] - you point to the discovery rules. Please quote the relevant passages.
    – Trish
    Dec 31, 2022 at 15:48

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