“Affirmative Acceptance Equals Waiver” – Delaware Supreme Court Clarifies Counsel-Induced Waiver and Remedies for Discovery Violations in Dillard v. State

Introduction

In Dillard v. State (Del. Supr. Ct. June 30, 2025), the Delaware Supreme Court (sitting en banc) addressed a recurring trial-management problem: What happens when the prosecution belatedly discloses material during trial and the defense initially seeks drastic relief (dismissal or mistrial) but then expressly agrees to a lesser remedial measure crafted by the court? The Court affirmed the Superior Court’s conviction of Bakr Dillard for attempted murder and related offenses, holding that:

• An express, on-the-record agreement by defense counsel that a proposed sanction “cures the problem” waives any subsequent appellate challenge to that remedy.
• Even absent waiver, exclusion of the tainted evidence coupled with a curative instruction is a “meaningful and practical alternative” to a mistrial or dismissal when significant independent evidence supports conviction.

The decision thus crystallises a two-pronged precedent: (1) the threshold doctrine of counsel-induced waiver in discovery-violation contexts, and (2) reaffirmation that trial courts retain wide remedial discretion, with mistrial or dismissal remaining “extraordinary” last resorts.

Summary of the Judgment

During Dillard’s 2024 jury trial, the State belatedly produced several police reports revealing that the defendant’s DNA was on a second extended magazine, not on the first magazine as previously believed. Defense counsel moved for dismissal or mistrial, arguing that his trial strategy hinged on the original representation. The Superior Court found a discovery violation, excluded the DNA evidence relating to the second magazine and gun, and issued a curative instruction directing jurors to disregard that DNA evidence. Counsel expressly agreed—three separate times—that the remedy “solved the issue.”

On appeal, Dillard contended that the remedy was inadequate and that prejudice could only be cured by dismissal or mistrial. The Supreme Court:

1. Found Waiver: Counsel’s repeated affirmative statements constituted an intentional relinquishment of the right to complain about the remedy.
2. Observed No Prejudice: Even if not waived, the case against Dillard was not “close”; overwhelming independent evidence (eyewitness identifications, pursuit narrative, firearm linkage, sweatshirt DNA) supported the verdict, and the exclusion+instruction effectively neutralised the belatedly disclosed DNA.
3. Affirmed Discretion: The Superior Court did not exceed its discretion; dismissal and mistrial remain drastic, rarely appropriate sanctions.

Analysis

1. Precedents Cited and Their Influence

• Purnell v. State, 254 A.3d 1053 (Del. 2021) – Defined waiver as “voluntary and intentional relinquishment of a known right.” The Court relied on this definition to characterise counsel’s assent as true waiver.
• Burrell v. State, 332 A.3d 412 (Del. 2024) – Stressed that courts presume against waiver in criminal cases and that the State bears the burden of proving it. The Court nevertheless found Burrell satisfied because defense counsel’s on-record statements were “stronger than mere silence.”
• Wright v. State, 980 A.2d 1020 (Del. 2009) – Established that deliberate tactical choices rather than oversight equate to waiver. Dillard’s counsel purposefully accepted exclusion because it left the State with a weaker case.
• Ryle v. State, 228 A.3d 1064 (Del. 2020) (TABLE) – Restated the abuse-of-discretion standard for discovery sanctions; provided framework for appellate scrutiny.
• Patterson v. State, 276 A.3d 1055 (Del. 2022); Oliver v. State, 60 A.3d 1093 (Del. 2013); Valentin v. State, 74 A.3d 645 (Del. 2013) – Supplied the three-factor prejudice test (centrality, closeness, mitigation). The Court distinguished Oliver and Valentin because those were “close” cases lacking substantial independent evidence.
• Williams v. State, 296 A.3d 895 (Del. 2023); Copper v. State, 85 A.3d 689 (Del. 2014) – Characterised mistrial as an “extraordinary remedy” justified only absent “meaningful and practical alternatives.”
• Morrison (U.S. Supreme Court, 449 U.S. 361) – Emphasised that the usual criminal-procedure remedy is to exclude the prosecution’s ill-gotten fruits, not to dismiss charges.

2. Court’s Legal Reasoning

The Court’s reasoning unfolded in two analytical tiers:

a) Waiver Analysis

Key elements:

• Intent: Counsel’s triply repeated assent reflected conscious tactical strategy.
• Benefit to Accused: Exclusion of the magazine DNA deprived the prosecution of potent evidence that could have strengthened its case in a retrial.
• Strong Demonstration: Affirmative statements surpass “mere absence of an objection,” meeting the high bar for waiver in criminal cases.

b) Prejudice & Remedy Analysis (Assuming No Waiver)

Applying the Patterson/Oliver three-factor test:

1. Centrality: While DNA evidence is significant, other direct and circumstantial evidence strongly tied Dillard to the gun, car, and shooting.
2. Closeness of Case: Not close. Eyewitness identifications, pursuit, ballistic matches, and sweatshirt DNA formed an overwhelming evidentiary mosaic.
3. Mitigation: Excluding the magazine DNA + tailored curative instruction sufficed. Jurors are presumed to follow such instructions (citing Revel).

Having found negligible prejudice and an appropriate remedy, the Court concluded the Superior Court acted within its “broad discretion” over discovery sanctions.

3. Impact on Future Litigation and Delaware Law

• Heightened Waiver Awareness: Defense counsel must now assume that affirmatively accepting a trial-court remedy will foreclose appellate review. Preservation of error demands explicit, contemporaneous objection, even after interim success.
• Practical Remedies Encouraged: Trial judges may confidently employ exclusionary sanctions and curative instructions rather than defaulting to mistrial/dismissal, knowing the Supreme Court will uphold such measures if they neutralise prejudice.
• Strategic Calculus for Defendants: The decision underscores the risk-reward trade-off inherent in accepting immediate suppression (beneficial in the moment) versus preserving issues for appeal.
• Discovery Management: Prosecutors are reminded that belated disclosure may result in exclusion of powerful evidence—an outcome potentially more damaging than mistrial—thus incentivising timely compliance.
• Clear Precedent Label: “Affirmative Acceptance Equals Waiver” will likely be cited in future Delaware briefs on waiver, discovery sanctions, and curative instructions.

Complex Concepts Simplified

• Discovery Violation: Failure by the prosecution to timely provide evidence or reports that it is obliged (by rule, order, or agreement) to disclose to the defense.
• Waiver vs. Forfeiture: • Waiver = Intentional relinquishment; cannot be reviewed on appeal.
  • Forfeiture = Inadvertent failure to object; may be reviewed for “plain error.”
• Curative Instruction: A directive by the judge to the jury to disregard certain evidence. Courts presume jurors follow such instructions.
• Level V Custody (Delaware): The highest level of incarceration within the Delaware Department of Correction, i.e., traditional prison time.
• Extended Magazine: A firearm magazine that holds more rounds than the standard capacity—often treated as circumstantial evidence of intent to inflict significant harm.

Conclusion

Dillard v. State sets a clear benchmark in Delaware criminal practice: when defense counsel overtly embraces a trial court’s remedial course, that embrace waives any appellate complaint about the discovery violation and its cure. Simultaneously, the decision reaffirms that exclusion of tainted evidence and curative jury instructions remain potent, sufficient remedies, reserving mistrial and dismissal for truly irremediable prejudice. The ruling therefore:

1. Fortifies the doctrine of counsel-induced waiver.
2. Empowers trial courts with flexible, graduated sanctions for discovery breaches.
3. Guides practitioners to preserve objections meticulously or live with the strategic consequences.

In the broader legal landscape, Dillard encourages procedural efficiency, discourages opportunistic mistrial requests, and balances the twin imperatives of fair trial rights and judicial economy. It will undoubtedly serve as a citation mainstay in Delaware for years to come.