In criminal law, the discovery process is when the parties gather and share evidence about the case. It lasts from the time that law enforcement starts their investigation until just before trial. As the prosecutor and your defense attorney uncover evidence, they may have to disclose some of it to the other side. This prevents surprises at trial.
The criminal discovery process
During the pretrial stage of criminal cases, the district attorney and the criminal defense team engage in reciprocal discovery. As they investigate the case and gather evidence, they must disclose many findings to the other side.
This ensures that the criminal defendant receives their constitutional right to a fair trial. The discovery process is a part of the defendant’s right to Due Process under the Fifth Amendment to the U.S. Constitution. According to the Fifth Amendment:
“No person shall be… deprived of life, liberty, or property, without due process of law.”[1]
The discovery process ensures there are no surprises at trial. Each side is aware of the evidence that the other side will present.[2] The criminal defense attorneys at our law firm have also found that it makes plea bargains more common. When you have a firm understanding of the strength of the case against you, you can better understand how it would go if you took your case to trial.
Examples of evidence disclosed in a criminal case
Some examples of the types of evidence that are frequently disclosed in a criminal case during discovery are:
- a list of the potential witnesses that each side intends to call during trial,
- the defendant’s statements to a grand jury,
- police reports,
- any prior recorded witness statements,
- the criminal records of any witnesses who have a prior conviction,
- police personnel reports,
- physical evidence or other tangible objects related to the case, like documents or the instruments of the crime,
- DNA evidence,
- toxicology reports,
- reports by expert witnesses,
- forensics, and
- results of drug tests.
If either the prosecutor or the defense attorney fails to disclose evidence in the discovery process, the court may exclude it from trial. The court may even impose sanctions for noncompliance.
The Brady Rule: Prosecutors must disclose exculpatory evidence
The prosecutor or district attorney is legally obligated to disclose material, exculpatory evidence to the defense. This is known as the Brady Rule, after the Supreme Court case that created it.[3]
Exculpatory evidence is anything that:
- tends to show that you did not commit the crime that you have been accused of committing,
- would reduce your sentence by, for example, reducing a felony case to a misdemeanor, or
- could be used as impeachment evidence against a witness.
Evidence is material if, altogether, it would likely have affected the trial’s outcome.[4]
If the prosecutor fails to disclose evidence under the Brady Rule, it can violate your right to a fair trial. If you are convicted of a criminal charge, your conviction can be overturned, and you can receive a new trial.[5]
However, you must prove that there has been a Brady violation, which can be difficult. Our criminal defense lawyers have found that this often requires using a subpoena to obtain the evidence that was not disclosed.
The Brady Rule only applies to the prosecutor. However, it is common for your defense counsel to disclose exculpatory evidence to the district attorney, even though they do not have to do so. Disclosing this exculpatory evidence is one method our defense team uses to end the case against you. Presenting evidence that you did not commit the crime can persuade the prosecutor to drop the charges.
What does not need to be disclosed
Neither the prosecutor nor the defense needs to turn over everything related to the case.
Attorney work product does not need to be disclosed during the discovery process. This includes things like:
- the attorney’s theory of the case, or the narrative about what happened that each lawyer intends to create during the trial,
- questions to ask each witness,
- notes about issues to look for,
- concerns about weaknesses in their own case, and
- weakness to note in the opponent’s theory of the case.
Timeline
The timeline of the discovery process depends on the complexity and nature of the case. It can change even based on the prosecutor, the district attorney’s office, or the law enforcement agency that is prosecuting the case. However, certain types of evidence, like the police report and any of your recorded statements, are typically disclosed soon after the arraignment. The prosecution witness list is often disclosed much later, often in the last months before the criminal trial. It is very rare for all of the discovery evidence to be disclosed at once.
Our defense lawyers have found that some prosecutors wait for discovery requests to be made before complying with the court’s discovery rules to get ahead on trial preparation. If the prosecutor still delays after the request has been filed, a criminal court order can be obtained to require them to provide the discovery materials.
Legal Citations
[1] U.S. Constitution, Fifth Amendment.
[2] The Jencks Act, 18 USC 3500.
[3] Brady v. Maryland, 83 S.Ct. 1194 (1963).
