Article by David A. Hyman
Why was the civil wrongful death suit against O.J. Simpson delayed until after his criminal trial was completed? Why was there pressure to amend the Freedom of Information Act (FOIA) when it appeared that FOIA was being used to make an end-run around restrictions on civil and criminal discovery?
Each of these problems of procedural intersection arose because of concurrent proceedings in which different procedural rules applied. In this setting, either party can attempt to exploit disparities in the applicable procedural rules to their own advantage. For example, criminal defendants could use a concurrent civil case to seek discovery far greater than that allowed by the Federal Rules of Criminal Procedure, with the likely result an increase in witness intimidation and perjured testimony in the criminal proceeding. Conversely, the prosecuting attorney in the criminal case could use civil discovery to force the criminal defendant to choose between incriminating himself and losing the civil case. Strictly speaking, neither party will have violated any procedural rules, but both will have effectively secured rights and privileges which are otherwise placed off-limits by the more restrictive procedural rule. Such issues are not limited to criminal/civil procedural intersections but are raised whenever there are concurrent proceedings with different procedural rules, such as concurrent federal/state, foreign/domestic, and administrative/civil cases.
Courts faced with such difficulties have generally taken the position that a party cannot use the less restrictive procedural rule to circumvent the more restrictive procedural rule—although they have made little effort to explain their preference for the more restrictive procedural rule beyond pointing to the fact of circumvention or undue risk of the same. Similarly, although courts have employed a wide variety of remedies to prevent such circumvention, they rarely explain the reasons for selecting a particular remedy. Professor Hyman explains why the more restrictive procedural rule has appropriately been enforced as a matter of policy, economics, and philosophy. He also explores why a number of courts have gone in the opposite direction and enforced the less restrictive procedural rule. Finally, Professor Hyman addresses the difficult trade-offs courts face when structuring rules to detect and deter circumvention in cases of procedural intersection.
About the Author
David A. Hyman. Associate Professor, University of Maryland School of Law. B.A. 1983, J.D. 1989, M.D. 1991, University of Chicago.
Citation
71 Tul. L. Rev. 1389 (1997)