Understanding the Criminal Discovery Process

When a person is accused of a crime, both the defense and prosecution teams may be entitled to receive information that one side has about the other side’s case. “Discovery” is this general process of exchanging information between both sides, and in some ways it’s meant to make the criminal process fairer for the defense. The rules differ depending on what state your case is in – and it’s important to note that in federal courts, discovery is usually much more limited than it is in state courts. Nevertheless, if you’ve been accused of a crime, you should make sure you’re playing with a full deck of cards – at least in those cases where the rules allow it. Here’s what you need to understand about the discovery process and the role it will play in your case:

What is the discovery process?

As a defendant, you usually have the right to obtain (at least some of) the information the prosecution has about your case. Discovery typically means exchanging information and/or obtaining evidence that a prosecutor may use against you in trial. Prosecutors can sometimes gain access to your information as well. While the discovery period usually takes place before a trial, it can extend into the trial as new evidence comes to the surface.

What kind of evidence does it involve?

The following types of evidence may come up in the discovery period:

  • Evidence from the crime scene, like photographs and forensics
  • Police reports, booking reports, witnesses and law enforcement toxicology results and DNA evidence
  • Testimony from witnesses, law enforcement, and the defendant
  • Testimony from expert witnesses

It’s important to distinguish between “raw evidence” and other information you might receive from a prosecutor’s office. Raw evidence is presented as-is, meaning the prosecution doesn’t have to explain whether they will actually present this evidence in court or how it may factor into their legal strategy. In other words, while you will receive all the evidence they might potentially use, you won’t explicitly learn how the prosecution intends to use that information.

How is this information obtained?

Attorneys will use all the tools at their disposal to get a full set of information from the other side. A few examples include:

  • Depositions: Depositions allow each party to ask questions from a witness who is under oath.
  • Disclosures: Depending on your state, each party may be required to make certain disclosures. For example, if the defense intends to use a special defense like insanity, they might be required to tell the prosecutor.
  • Document Production Requests: When it comes to criminal cases, the prosecution must deliver certain documents to the defense, with or without a request. They might provide police reports, transcripts of wiretaps, or corporate records (in white collar cases).

In cases of white collar crime, investigating agents may need to get documents from suspects as well as from third parties. They can obtain a search warrant from a judge, or a subpoena from a grand jury, to search a particular site for any evidence relevant to the case.

How can this benefit the defendant?

Aside from helping your lawyers assess the strength of the prosecution’s case against you, discovery can make a huge difference in your case. Prosecutors are legally compelled to disclose evidence that can potentially benefit you. This includes “exculpatory” evidence, or evidence that casts doubt upon your guilt—and therefore helps to establish your innocence.

When the discovery process is done correctly, it can give your defense a great advantage. Your attorney should start requesting information from the outset of your case. To speak with a thorough, detail-minded white collar defense attorney, get in touch with Cove Law. We will make sure your case is supported by strong arguments, a solid strategy, and a complete set of information.

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Written by Andrew Cove

Cove Law has significant experience defending federal investigations and formal actions by the Federal Trade Commission, the Consumer Finance Protection Board and the U.S. Department of Justice, as well as similar matters on the state level by the respective state Attorney General’s Offices and other local agencies.