Criminal or civil litigation is the last resort for seeking justice from the system. Given the large number of litigation suits filed in democratic countries as the United States, there is a need to seek recompense in justice outside the legal system or before parties concerned agree to bring the issue to a court of law. These measures however need to be institutionalized so that both parties are satisfied with the processes and are encouraged to resolve the matter outside the court of law.
The mechanism of discovery rules is one such instrument which has provided for pre-trial phase in a law suit. The discovery procedure allows the parties in a law suit to request for evidence including documents from the other parties. The law provides for making such requests which could be for production as well as depositions. If required sub poenas can be issued for production of evidence. The discovery rules if used purposefully can lead to minimizing litigations as well as provide justice to litigants.
The aim of the prosecution is to collect sufficient evidence to establish veracity of the case and to ensure justice. However frequently the prosecution acts as an instrument to prove guilt of the accused. This mistaken notion results in subverting the very process that is required to be undertaken under the discovery rules. To avoid this anomaly it is essential that the prosecution discloses all evidence to the accused in a criminal case prior to the trial.
Having so displayed information in all respects, be it exculpatory or inculpatory by the prosecution, the defendant will be able to establish culpability of the offence and in turn decide either to challenge the case or to disclose as much evidence as possible for the prosecution to assess if the case is to be pursued or will achieve the ends of justice. The defendant is granted very justifiably protection under the Fifth Amendment, a privilege of attorney-client relationship as well as against self recrimination because of which he should not be required to disclose evidence to the prosecution.
This ensures that practical problems of implementing discovery rules are overcome. Prosecution can misuse discovery rules to extract maximum evidence regarding the case to strengthen arguments rather than seeking ends of justice. As Stracher (1998) has indicated the best legal minds are involved in manipulation of evidence rather than seeking ends of justice. Thus it would be appropriate for the defendant is able to exercise privileges granted in the present socio-legal environment.