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Why? Intuitively, one would assume that the criminal rules of discovery should if anything be more permissive than the civil rules, given that liberty rather than money is at stake. But the reverse is true. How did this happen?
The roots of the split between the civil and criminal rules are examined by Professor Ion Meyn in his article Why Civil and Criminal Procedure Are So Different: A Forgotten History, 86 Fordham L. Rev. 697 (2017)(“Meyn”). For centuries, under the common law, federal criminal and civil proce- dure operated under the same rules – that did not include depositions. Litigation was a two-step process: pleading, then trial. But the adoption of the Federal Rules of Civil Procedure in 1938 radically expanded the process – for civil cases – by adding a third step – discovery – which became whatwenowunderstandasthe“heart”oflitigation.
The reforms embodied in the Rules of Civil Procedure were warmly received and widely praised. The U.S. Supreme Court, in Hickman v. Taylor, 329 U.S. 495, 501 (1947), praised the fact that “civil trials in the federal courts no lon- ger need be carried on in the dark. The way is now clear, con- sistent with recognized privileges, for parties to obtain the fullest possible knowledge of the issues and facts before trial.”
With the enactment of the civil rules complete, Congress authorized the Supreme Court to draft rules of criminal pro-
cedure in 1940. The Supreme Court delegated its authority to a new advisory committee, just as it had done for the civil rules. The Supreme Court appointed New York Universi- ty Law Professor Arthur Vanderbilt as Chairman, Professor James Robinson as Reporter, and Alexander Holtzoff, a Special Assistant to the U.S. Attorney General, as Secretary. The committee members were all prosecutors or academics.
There was not a single member from the defense bar.
In a slice of history largely buried until Professor Meyn’s research, it appears that the Committee’s initial approach to drafting the criminal rules was to mirror the reforms embodied in the recently enacted civil rules. The first draft of the criminal procedure rules, written in 1941, adopted the civil rules “almost [in] whole cloth.” Meyn at 720. As the Reporter, Professor Robinson, explained: “[the] criminal rules follow as closely as possible in organization, in numbering and in substance the Federal Rules of Civil Procedure.” “[T]he civil rules . . . have won a deserved prestige. There is no reason why the criminal rules might not well follow as closely as possible the plan and content of the civil rules and in that way gain some of the same confidence that has been afforded the criminal rules.” The mirroring included key aspects of the newly created discovery phase, such as “depositions, document requests, physical and mental examinations, and requests for admission.”
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