united-states criminal-law fifth-amendment discovery
Defendant&#39;s Cherry-Picking
<p>In <a href="https://en.wikipedia.org/wiki/Discovery_(law)" rel="nofollow noreferrer">Discovery</a>, &quot;the prosecutor is obligated to provide to the defendant any information that is exculpatory or potentially exculpatory&quot;.</p>
<p>I am looking for cases where the defendant, on the other hand, can withhold incriminating evidence.</p>
<p>In particular, suppose that the defendant is accused of committing a crime in a manner which is scientifically debatable.  The defendant directly hires 10 independent scientists to re-enact the crime, of which 9 are successful.</p>
<p>Can the defendant then ignore those 9, bringing only the 1 scientist in line with his defense to trial?  The jury thereby never knows that 9 re-enactments worked, and only knows that 1 re-enactment failed.  Going beyond the defendant, does the defendant's lawyer, if aware of all 10, have a duty to disclose all 10 to the prosecutor?</p>
<p>The crime occurs in Los Angeles, California, USA.</p>

<h2>The defendant in a criminal trial has no obligation to present <em>any</em> evidence</h2>
<p>In the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="united-states-container">united-states</a> this right is absolute and no inference can be drawn from a passive defendant. In other common law jurisdictions, judges and juries are permitted to draw conclusions from the defendant’s silence.</p>
<p>In general, they are not required to share their evidence or case with the prosecution. However, certain avenues of defence may be closed if they don’t: for example, self-defence or insanity must be disclosed so that the prosecution can investigate and perhaps withdraw or modify the charges. In some jurisdictions, this extends to alibi defences and expert reports. Note that this only applies to evidence the defence intends to introduce.</p>
<p>For your specific example, there is nothing stopping this but it is a poor strategy. The outlier’s evidence will need to be given to the prosecution who will be able to show that the scientific consensus is the opposite: this may mean the court does not accept the person as an expert and excludes all their evidence. Even if this doesn’t happen, the prosecution is likely to make the “expert” look silly.</p>
