In a criminal law case, the term “discovery” refers to the process of discovering and obtaining evidence the other side plans to present. Both the prosecutor and the criminal defense lawyer engage in discovery. Each side can make a criminal discovery request.
If prosecutors find exculpatory evidence that is material to the case, they have a Constitutional duty to disclose it to the defense. Sharing evidence found in discovery:
- prevents surprises during trial and
- increases the odds of a plea bargain.
What is the criminal discovery process?
The discovery process in a criminal case is when the criminal defense attorney and the district attorney obtain copies of the evidence that the other side has gathered. It begins right after the defendant’s arrest – sometimes even before the defendant’s arraignment and can continue days before trial.
During discovery, both the defense attorney and the prosecutor will:
- interview witnesses and the defendant,
- gather physical evidence, like tangible objects, documents, and computer files,
- speak with expert witnesses, and
- review the police report and witness statements.
The discovery process in a criminal case is when the criminal defense attorney and the district attorney obtain copies of the evidence that the other side has gathered.
As discovery progresses, both sides will begin to see which pieces of evidence will be important at trial. They will put together a list of the potential witnesses they intend to call and the exhibits they intend to show. These lists are filed in criminal court. Each side can see what evidence their opponent will be presenting, as well as prior recorded statements by witnesses.1 This lets each side prepare for trial.
Not all evidence is shared. While the prosecutor has a legal obligation to share material exculpatory evidence with the defense, attorney work product is rarely released. Other evidence may be disclosable, but only if the defense lawyer makes a discovery request for it during the pretrial stage.
This includes any of the defendant’s recorded statements that are in the government’s possession, including those before a grand jury for the criminal charges at issue.
Hiring an attorney from a criminal defense law firm is the best way to ensure these discovery procedures are fully utilized and supported by good cause.
How does the process tend to impact the outcome of criminal cases?
The criminal discovery process tends to even the playing field between the prosecutor and the defense. It also likely increases the likelihood of a criminal case ending in a plea bargain. This is because the defense counsel can see how strong of a case the prosecutor has. Knowing the strength of the case against the defendant can help the defense make an informed decision about a plea deal, rather than take the case to trial.
District attorneys have numerous advantages over criminal defense lawyers. They can use governmental agencies for forensic analyses of physical evidence. They have ample staff to comb through reams of documentary evidence. They have other attorneys that they can brainstorm with and who have special areas of experience. They also have easy access to law enforcement, allowing them to speak with the police officers involved in the case at a moment’s notice. All of these factors mean that prosecutors tend to gather more evidence of an alleged crime than the defense attorney.
What evidence does the prosecutor have to share with the defense?
The prosecutor has a legal obligation under criminal law to disclose exculpatory evidence that is material to the defendant’s case. This is known as the Brady Rule after the Supreme Court case that created it.2 The act of sharing this exculpatory evidence with the defense is known as a Brady Disclosure.
Exculpatory evidence is any evidence that:
- tends to show that the defendant did not commit the crime that he/she has been accused of committing,
- would reduce the defendant’s sentence by, for example, reducing a felony case to a misdemeanor, or
- can be used as impeachment evidence to attack the credibility of a prosecution witness, for example, his/her criminal records.
This can be evidence that:
- the defendant was not at the scene of the crime when it happened,
- someone else committed the offense,
- certain aggravating factors to the offense were not present,
- the alleged victim wrongfully identified the defendant, or
- a witness could not have seen what he/she claims to have seen.
Evidence is material to the case if, in the aggregate, it likely would have affected the trial’s outcome.3
If the prosecutor hides evidence that would be subject to the Brady Rule, it can violate the defendant’s right to a fair trial. These Brady Violations go against the Due Process Clause.4 The conviction can be overturned.
It is the defense who has the burden of proving that a Brady Violation has occurred. This can be difficult to do, as the opposing party often has possession of the relevant evidence. It may require the use of a subpoena to get the evidence.
What evidence can the prosecutor withhold?
Not all evidence is subject to a Brady Disclosure or has to be filed in court. Prosecutors are under no obligation to turn over their theory of the case or questions they will actually ask a witness in court.
Much of this is considered attorney work product and does not have to be disclosed, even if requested.
Does the defense have to share evidence with the district attorney?
Defense lawyers are often legally obligated to turn over evidence that they find. This is known as reciprocal discovery. Even when not required, defense lawyers will use exculpatory evidence found to urge law enforcement to dismiss the case.
An example of evidence that the defense has to share with the district attorney is alibi evidence. An alibi defense is a claim that the defendant could not have committed the crime because he/she was with someone else at the time. If the defense is going to raise an alibi defense, they have to notify the district attorney and provide information about the alibi witness.5 This allows the prosecutor to investigate the defense during discovery.
How does the discovery process help the criminal justice system?
By gathering evidence of the alleged crime, both law enforcement and the defense can better understand what happened. By divulging evidence like witness lists and physical exhibits early on, each side knows what they are up against and can better prepare for trial.
This is in sharp contrast to the way the criminal discovery process used to be. Surprise witnesses used to get called during the trial and send the opposing side into a scramble to counter their testimony. Hiding evidence to ambush the opposition in a trial was a way to win cases without having strong evidence. This was unfair to the losing side.
Modern discovery rules also facilitate plea bargaining. When the prosecutor knows what evidence the defense has, they may know that it will be wise to dismiss the case. If the criminal defendant can see that the prosecutor’s case is strong, he or she may be more inclined to take a plea agreement. This reduces the strain on the court system by resolving cases quickly and without the need for a trial.
