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State v. Diprete5/1/1998
ears to premise its "lack of authority" or "no authority" rule upon the suggested absence of any federal or state case precedent that has approved the dismissal of a criminal prosecution for prosecutorial misconduct during pretrial discovery proceedings. In so doing, it seizes upon language contained in several cited Ninth Circuit opinions that refer to a case dismissal sanction for violation of pretrial discovery as being "drastic" and "disfavored." The majority, however, overlooks that in those very same Ninth Circuit cases, the case holdings specifically recognize that case dismissal would be a proper and authorized discovery violation remedial sanction in a case in which both flagrant prosecutorial misconduct and substantial prejudice to the defendant are present. See, e.g., United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988) (citing United States v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir. 1985)), and United States v. Carrasco, 786 F.2d 1452, 1455 (9th Cir. 1986). In Jacobs the court there noted that " dismissal rooted in a failure to obey a discovery order lies within a court's supervisory powers" and "that this court [9th Circuit Court of Appeals] recognized supervisory power to dismiss for violation of discovery orders." Jacobs, 855 F.2d at 655. It should be noted that in this case the trial Justice specifically found both flagrant prosecutorial misconduct as well as irreparable and substantial prejudice resulting therefrom to the defendants to be present.
Accordingly the majority's suggestion that case dismissal was not a permitted Rule 16(i) sanction simply because there is no reported federal court precedent that has yet upheld case dismissal as an appropriate Rule 16 discovery violation sanction is not correct. A District Court may properly dismiss an indictment if the prosecutorial misconduct (1) was flagrant, Carrasco, 786 F.2d at 1455, and (2) caused substantial prejudice to the defendant, Rogers, 751 F.2d at 1077. Federal case law thus clearly recognizes the existence of case dismissal as an appropriate sanction but simply limits its application to those cases that involve flagrant prosecutorial discovery misconduct with resulting substantial prejudice to a defendant, such as was found in this case. United States v. Manthei, 979 F.2d 124, 126 (8th Cir. 1992).
It should also be noted that the federal courts follow United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). In doing so, they employ an outcome determinative approach that focuses on the impact of discovery nondisclosure upon the trial outcome. In that approach the federal courts consider the reason for the government's delay in producing requested pretrial discovery information including (1) whether noncompliance was intentional or in bad faith, (2) the degree of prejudice to the defendant, and (3) whether the prejudice to the defendant can be cured with a less severe sanction such as granting a case continuance. See United States v. Mayrokordatos, 933 F.2d 843, 847-48 (10th Cir. 1991); United States v. Wolak, 923 F.2d 1193, 1196-97 (6th Cir.), cert. denied, 501 U.S. 1217, 111 S.Ct. 2824, 115 L.Ed.2d 995 (1991); United States v. Glover, 846 F.2d 339, 342 (6th Cir.), cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 565 (1988); United States v. Euceda-Hernandez, 768 F.2d 1307, 1312 (11th Cir. 1985). We have opted to employ a similar yet different approach, namely, a sliding-scale approach based on the blame-worthiness of the prosecution in failing to furnish and disclose requested or court ordered pretrial discovery to a defendant. Brisson, 619 A.2d at 1102. Unlike the Bagley outcome-result approach, we permit pretrial nondisclosure that prevents a defendant from being able to adequately prep
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