This comment asserts that a prosecutor's office may charge privately-retained defense counsel for the costs the prosecutor's office may incur as a result of reproducing material that may be requested via discovery. Although the evolution of discovery has resulted in rules or statutes that differ with respect to a particular jurisdiction's scope of discovery or its adopted approach, the overwhelming majority of discovery provisions regarding the prosecutor's duty of disclosure are very similar. The duty essentially requires that the prosecutor make the particular material available and permit its inspection and reproduction. Consequently, to forbid a prosecutor from seeking reimbursement for the costs of reproduction is not only contrary to the plain language of the discovery provisions, but it would also be reading an exception or limitation into the provisions because it would be implicitly requiring the prosecutor to make the copies of the material. Such an action violates the rule of statutory construction - an undertaking courts should avoid. Furthermore, public policy supports the contention that taxpayers should not have to bear the costs of reproducing material for a defendant's criminal defense when the defendant can afford the costs of that defense, even if the defendant has a statutory or constitutional right to the material. This policy is reflected in statutes that govern access to public records, the imposition of costs of criminal proceedings upon defendants, and reimbursement of the costs of court-appointed counsel. However, because discovery is almost exclusively promulgated by statute or court rule, this comment recommends that legislators amend their current discovery provisions to provide for the reimbursement of discovery reproduction costs. Such a measure will help alleviate the present and future burden placed on the public revenue.
College of Law
Northern Illinois University Law Review
Pinter, Gary C.
"Criminal Discovery and the Costs of Reproduction: A Burden Taxpayers Should Not Have to Bear,"
Northern Illinois University Law Review: Vol. 26:
3, Article 1.
Gary C. Pinter, Comment, Criminal Discovery and the Costs of Reproduction: A Burden Taxpayers Should Not Have to Bear, 26 N. Ill. U. L. Rev. 623 (2006).