Prosecutor’s Open File Policy Extends To Sentencing Phase

In a remarkable and potentially significant decision, the Nevada Court of Appeals has held that a policy of open-file discovery extends to information obtained by the prosecutor after conviction and before sentencing. 

In the present case, the State maintained an open-file policy and was subject to an ongoing duty to disclose all evidence in its possession to Quisano. In light of the State’s open-file policy, repeated references to that policy, and regular discovery disclosures, Quisano could reasonably rely on the State’s promise under the open-file policy to provide discovery as it became available, just like the defendant in McKee who reasonably relied on the State’s open-file policy. Yet, similar to the prosecutor in McKee who failed to disclose a photograph before introducing it at trial, here also, the prosecutor failed to disclose the affidavit to Quisano prior to using it at Quisano’s sentencing hearing.

The court was “reluctant” to call the non-disclosure prosecutorial misconduct.

The court concluded that the defendant’s rights were not sufficiently prejudiced to warrant a new sentencing hearing.

Justice Tao had a contrary – and quite thoughtful- view

In this case, nobody contends that the policy violates any statute or is less protective of the defendant’s right to discovery than the Constitution requires under Brady or Giglio; everyone agrees that the policy here goes much further than required by those cases. If the elected district attorney decides that its voluntary discovery policy should be broader than required, but expire before sentencing, there is little that courts can do about that so long as the policy does not violate existing law or the constitution or intrude upon judicial functions, which the policy here did not.

Thus, in this case, the content and meaning, per se, of the prosecutor’s policy are none of our business and not ours to interpret. And even if they somehow were, our options would naturally be limited to invalidating the policy if it were illegal, imposing a sanction if it was violated, or possibly (but far from surely) identifying the drafter’s intent if it were ambiguous. But here, nobody asserts that the policy is illegal, unconstitutional, or ambiguous. Quite to the contrary, the majority specifically concludes that no due process violation occurred under Brady or Giglio and, furthermore, that no Nevada statute required the disclosure of the affidavit that the prosecutor used against Quisano. The majority does not even find the policy to be fundamentally unfair; rather, it affirms Quisano’s conviction and sentence precisely because it concludes that what happened at sentencing under the existing open-file policy was not all that unfair to Quisano.

Yet the majority concludes that the policy—despite not being ambiguous, illegal, or unfair—is in need of judicial construction nonetheless. It then imposes upon it a construction as a matter of law that reflects no deference to the district attorney and is unanchored to the drafter’s intention.

Where the constitutional power to do all of that comes from is entirely unclear. Perhaps one could argue that it exists under Article 3, Section 1(1) of the Nevada Constitution. But I am inclined to think it does not.

Because the majority sees things differently, I respectfully concur in much of the majority’s opinion but dissent from the portion relating to the scope and meaning of the open-file policy.

(Mike Frisch)