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Suppose a person is put on trial for a crime, but he has video evidence showing his innocence. Out of malice or spite of a personal nature towards his accuser, he allows the trial to proceed, and then at the last possible moment "discovers" and presents the evidence, leading to his acquittal and the accuser's extreme shock, dismay, and embarrassment.

Are there any sanctions that could be applied to the defendant if the court were convinced he had withheld that evidence in order to prolong the trial?

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    I just rewrote this question to make it acceptable for this site. Previous comments noted that unnecessary offensive and distasteful details are, well, unnecessary. – feetwet Dec 13 '15 at 20:07
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    Incidentally, this was the plot of at least two Agatha Christie stories - one of them was successful, the other was foiled by Hercule Poirot. – Nate Eldredge Dec 14 '15 at 5:09
  • @feetwet As much as I dislike having your words put in my mouth (i.e. under my name), I'm in no position to fight it. If you insist, so be it. – JesseTG Dec 14 '15 at 15:55
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    @JesseTG - You can "disown" a question by sending a request to anonymize it via the "contact us" form. Then it will appear as "anonymous," though you'll miss out on all the delicious rep it earns ;) – feetwet Dec 14 '15 at 17:04
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    @feetwet Hm...which do I have more pride in? The veracity of my own words, or an integer? – JesseTG Dec 14 '15 at 18:09
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This is a good question, although it discusses crimes. This answer generalizes the question by giving a response for civil violations.

In the , where federal is followed and provided the tape isn't solely for impeachment purposes (i.e. it also documents other elements), there are certain disclosures required at the beginning of discovery governed by Rule 26(a)(1)(A)(ii).

If a party withholds one of these disclosures, under Rule 37(c)(1), the court is able to take a number of actions, including throwing the evidence out. This could, of course, result in the withholder's conviction. Yet, if the court does not go to that extreme, it may impose the sanctions in Rule 37(b).

So the withholder's attorney might try to make a case that the evidence is, indeed, solely for impeachment purposes.

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    +1 for citing rules of procedure and stating that the above only applies in civil violations. The above would be incorrect in criminal court. – Viktor Dec 13 '15 at 21:20
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In the UK, when you are read your rights you are told that you don't have to say anything, but that it may harm your defence if you later rely in court on anything that you haven't mentioned.

The obvious reason is that if you make any claims that might prove you are innocent, the cops want to be able to verify those claims, which they can't if they hear of it in court for the first time. So that video could have been forged, but the cops can't prove it if it first shows up in court. I can't say what will happen, but I wouldn't be entirely surprised if a UK court threw that evidence out. If it happened, it couldn't happen to a more pleasant guy.

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    The warning is there so the arrested person knows that if he invokes his right to remain silent this fact can be introduced as evidence in against at trial if he tries use something as evidence he didn't disclose to the police. Rather than warning that withholding evidence makes it inadmissible, it's warning that withholding exculpatory evidence is incriminating. At trial the prosecution wouldn't argue that the tape should be thrown out. Instead they'd argue that not showing the tape to the police is only something a guilty person would do. – Ross Ridge Dec 13 '15 at 22:32
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Yes, sanctions are possible. But not automatic.

"Trial by ambush" is not allowed in the U.S. Both sides have the right to know the evidence of the other side prior to trial. This process is called discovery and it is governed by a set of rules.

I suspect any possible sanctions in this case would be discretionary by the judge and legally justified by the defendant breaking the rules of discovery.

Surely any competent prosecutor would have asked the defendant to produce all exculpatory evidence using all the available tools of discovery. The defendant then would have had to have lied and claimed the evidence did not exist or produce the evidence prior to trial. Otherwise, the defendant risks sanctions including but not limited to having the evidence being ruled inadmissible or at least giving the prosector additional time to review the (previously withheld) evidence.

So, yes, the defendant is exposed to possible sanctions — subject to the judge's discretion — if they broke the rules of discovery.

  • To whom it may concern: Why the downvote? Please explain yourself. – Mowzer Dec 13 '15 at 21:04
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    The federal rules of criminal procedure do not require significant discovery. Rule 12 requires disclosure of alibi witnesses and evidence. Rule 16.b) requires some defense discovery, however, most of the discovery is required only if the defense first requests discovery from the prosecution. Additionally rule 16.b.2) specifically excludes some evidence from discovery, which the defense can use to "surprise" the prosecution. In other jurisdictions your mileage may vary with disclosure laws. – Viktor Dec 13 '15 at 21:10
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    @Viktor: If this were a federal case 16.b would apply because any defense attorney would be open to malpractice if they did not request discovery from the prosecution. However, since this is a state case, let's look at a typical state. Take California, for example. Rule 1054.3.(a)(2) requires "The defendant and his or her attorney shall disclose to the prosecuting attorney: ... Any real evidence which the defendant intends to offer inevidence at the trial." All other states have similar rules. – Mowzer Dec 13 '15 at 21:47

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