Discovery Process in a Criminal Defense Case

In the United States, all criminal defendants have the constitutional right not only to face their accusers at trial but also to obtain from them beforehand any information that happens to pertain to the criminal case. Although the specifics will vary from one state to another, this information will change hands before the trial has begun during a period known as the discovery phase.

This is the phase during which the defense attorney attempts to unearth or discover evidence that the prosecution may or may not intend to put forth while cementing the case against his client. This can include such things as:

• Forensic evidence.
• Police documentation.
• Law enforcement testimony.
• Booking reports.
• Toxicology results.
• DNA.
• Expert witness verification.
• Other raw data potentially held by the prosecutor.

Although the state may provide the defense with copies of all documentation where possible, the law does not force it to turn over such non-reproducible items as guns and drugs. It must, however, make these things available to the defense for visual inspection. The defendant and his attorney may also ask the court for permission to test the evidence or make it accessible to experts for examination.

Keep in mind that while you as a defendant may feel that you have the right to access every piece of evidence against you, the law will not always allow this. For example, the state will normally protect witnesses and victims by redacting any identifying information before turning over applicable documentation to your attorney.

When the Prosecution Balks

In most cases, prosecutors will willingly disclose any evidence in their possession. They do this not necessarily in the spirit of good will but because court rules insist that they either disclose it or lose the right to use it at trial. In some cases, however, the prosecutor may choose to stonewall. This can occur in a complex case for which the disclosure of certain pieces of information could imperil an ongoing investigation.

If the prosecution does attempt to keep some of its evidence close to the chest, the defense attorney can attempt to force the issue via a motion to compel. At this point, the court will decide whether the defense has a legal right to look at the evidence. The more complicated the case, the more likely it is to be rife with objections and retaliatory motions to compel.

What Is Exculpatory Evidence?

During the discovery period, the prosecutor is responsible for turning over any information in its possession that might serve to prove the defendant’s innocence. This so-called exculpatory evidence could cast serious doubt on the defendant’s guilt and might, if kept under wraps, lead to an erroneous conviction. If this does happen and the defendant should choose to appeal the guilty verdict, the prosecutor’s failure to have made the evidence known could lead to an automatic overturn of the earlier conviction on appeal.

Defense attorneys must make every effort to obtain access to exculpatory evidence that might reside in the prosecutor’s hands, and due to the significance of such information, they will generally make the attempt at the very beginning of the discovery process. To learn of its potential existence, he or she will often interview witnesses and members of law enforcement.

Discovery Violations

The defendant has a constitutional right to learn of any evidence the prosecution might have against him, and if that evidence might materially affect the outcome of the case, any attempt on the prosecution’s part to illegally withhold it amounts to a discovery violation.

It is only a violation, however, if the evidence in question could directly lead to a finding of guilt or innocence. Therefore, while the withholding of DNA would constitute a violation, it would not necessarily be wrong to fail to disclose evidence that does nothing more than indicate a greater degree of guilt. While it is true that withholding the latter type of evidence could impede the defense attorney’s ability to adequately fight for his client’s rights, it would not automatically constitute a discovery violation.

Remedies for Discovery Violations

In appellate court, the proof of a discovery violation could lead to the reversal of an earlier conviction. This will not in any way equate to an acquittal. It merely means that the case will return to trial court where the previously withheld evidence will then come to light.

Some states provide alternative methods of redress for discovery violations. This may consist of:

• Evidence exclusion. Also known as a death penalty sanction, it holds that if the state has failed to produce a required evidentiary item, the court can exclude it from further consideration.
• A continuance. Under this type of state remedy, if the prosecution produces a previously undisclosed piece of evidence, the court can temporarily shelve proceedings while the defense attorney subjects the item to scrutiny.

When properly and thoroughly conducted, the discovery process has but one vital aim: to prevent any chance that surprise evidence presented at trial might lead to a defendant’s conviction. The attorneys at Weiner Law Group appreciate the importance of this phase and will leave no stone unturned in obtaining every piece of evidence related to its clients’ cases prior to their trials. Speak to a defense attorney today for your free consultation at 702-202-0500.