Key Takeaways

  • The Illinois Supreme Court recently revised the rules that apply to all criminal proceedings in the state to allow criminal defendants, upon motion, to access discovery materials without the presence of counsel.
  • The revised rule continues to protect confidential information by requiring redaction of contact information and other sensitive personal data for witnesses, mental health professionals, and victim’s advocates before discovery can be shared with criminal defendants.
  • The rule change, which took effect during COVID 19’s global pandemic, recognizes the impracticalities of requiring the presence of counsel, the need for defendants to review discovery materials, and notes that ethical and professional decisions regarding discovery are best left to counsel and their clients.

On October 23, 2020, the Illinois Supreme Court amended its rules, which apply to all criminal proceedings in the state of Illinois, to expand criminal defendants’ access to discovery materials. Specifically, the court revised Illinois Supreme Court Rule 415, which had previously dictated that materials furnished to an attorney had to remain in that attorney’s “exclusive custody,” meaning that attorneys had to remain with their clients (who were often in jail) during their review of government-provided discovery. The amended rule removes this requirement, creating a default rule that, upon motion by counsel, criminal defendants “shall” be granted access to discovery material unless the state shows “good cause” why they should not.1

The prior version of Rule 415 had faced criticism from courts and defendants because it created differing rights for defendants with counsel compared to pro se defendants, who would have personal access to discovery as their own counsel.2 In People v. Shores, the court noted its “concern about defense counsel’s need to share discovery materials” and recognized that jurisdictions outside of Illinois “have used other, less burdensome means to protect information.”3 In another case, People v. Savage, the court also commented on “the impossibility of enforcing Supreme Court Rule 415(c)” because it depended on the state somehow becoming aware that a defendant had discovery material, which it lacked mechanisms to monitor.4

The amended rule alleviates many of these burdens, as well as the due process and equal-protection concerns expressed by both defendants and courts. As discussed by the revised committee comments, the changes resulted largely from practical considerations, noting that “most discovery in the overwhelming majority of cases has little to no information that is of any interest to anyone except the parties and their counsel.”5 The committee comments also recognize the “compelling need” for “counsel to share discovery in whole or in party with their client and for their client to review without supervision of counsel” and that counsel is best positioned to grapple with the professional or ethical decisions related to the review of evidence with a client.6 Before its amendment, Rule 415(c) frequently hindered incarcerated defendants from accessing case materials and impacted defendants’ preparation in those cases where a defendant’s attorney could not regularly accompany their client.

The amended rule still provides meaningful protections against inappropriate disclosure. Of note, the revised rule still requires counsel to retain materials in their exclusive custody unless and until they have moved the court for permission to share with the defendant.7 Any evidence provided by an attorney to his or her client must also be scrubbed of contact information or “personal identifiers” of witnesses, mental health professionals, or other victim’s advocates.8 This is defined to include dates of birth; Social Security numbers; financial institution information; driver’s license numbers; checking, credit, or debit card information; medical or mental health records; and photographs or videos of victims of sexual assault, sexual abuse, or child pornography.9 Moreover, if the state or a third-party sharing discovery moves for a protective order to prevent further disclosure, the amended rule provides that such further disclosure shall be prohibited during the pendency of the motion.10 If a party violates any of these protections, the revised Rule 415 now allows for contempt proceedings or other sanctions against the attorney or the defendant.11

This rule change is the latest in a series of state and federal actions designed to ensure that criminal defendants have adequate access to evidence to defend themselves. It comes on the heels of the United States Congress overwhelmingly passing, and the President signing into law, the Due Process Protections Act (which we write about here)—an act requiring federal courts at the beginning of every criminal case to issue an order to the prosecution and defense confirming the disclosure obligations of prosecutors under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. The revised Rule 415 also brings Illinois more in line with national guidance for criminal procedures and the rules of other states that have already allowed criminal defendants to directly access discovery.12 In short, as also reported by the Chicago Daily Law Bulletin, Illinois has taken an important step to enhance criminal defendants’ ability to present evidence while still protecting sensitive material that the state might justifiably be concerned about disseminating in a jailhouse setting.