A Brief Guide to the Criminal Discovery Process

Did you know that most of the work performed by a criminal defense attorney is done outside of the courtroom? In a criminal case, discovery is the process used by a defendant to obtain information from the prosecution regarding the case filed against him or her.

The discovery process typically begins after formal charges are filed at arraignment. In most jurisdictions, the prosecution must disclose the evidence which they intend to rely upon at trial. In a criminal case, there are various types of information that can be included in discovery, including:

  • Police Reports – A summary of the investigation which contains the names of the victims, witnesses, and observations made by the arresting officer
  • Police recordings of interviews held with the defendants, witnesses, and victims
  • Photographs from the crime scene and people injured during the event in question
  • Documentary Evidence such as bank statements, phone records and any written documents which are relevant to the case
  • Scientific Evidence – DNA analysis, fingerprints, blood samples and the like
  • Reports of Expert Witnesses, for example medical examiners, doctors, forensic laboratory analysts

This list is not exhaustive, but is merely a sample of some of the types of information which will be disclosed during the discovery process.

Prosecutors may also obtain any relevant information or evidence from the defense as well. that is because the discovery process is reciprocal, meaning that both the prosecution and defense must disclose their evidence to one another. And the process is ongoing, and can continue up to and during the trial. However, there are specific time limits for disclosure which must be followed. A failure to disclose evidence may result in it being excluded from the trial.

So as to guarantee fairness in a proceeding, the prosecutor is also required to provide “exculpatory evidence” which can help establish the innocence of a defendant.

Exculpatory evidence is information that tends to negate the guilt of the accused. But prosecutors do not always disclose this evidence, for a myriad of reasons. Often, it is up to the defense attorney, through thorough investigation and analysis to determine the existence of this type of evidence, and demand its production from the prosecution.

In some states, defense counsel are permitted to take sworn witness statements of witnesses, otherwise known as a deposition. This is a golden opportunity to questions witnesses (police officers, eyewitnesses, etc.) under oath, probe their answers and determine exactly what their testimony will be at trial. It also gives counsel the opportunity to establish the weaknesses in the prosecution’s case which can result in a dismissal of the charges or a favorable plea negotiation. And the deposition can be used during the trial to impeach the witness if their trial testimony differs from what the stated in the deposition.  

The discovery process provides considerable benefits. For one thing, it affords the defendant’s attorney a preview of how the prosecution intends to prove its case. Most importantly, it assists in the preparation of an effective defense. By revealing both the good and bad evidence, it enables defense counsel to develop and present a defense which accounts for all of the variables in the case. But it also enables the accused to actually see and understand the evidence against him or her, and make choices which will determine the direction of the case.

The discovery process is a key aspect of any criminal court case, and its importance cannot be understated. It is vital that you enlist the services of a skilled criminal defense attorney who understands how to utilize the discovery process to your advantage and give you the best chance to win your case. To learn more, call the Law Offices of Barry M. Wax today.

Written by Law Offices of Barry M. Wax

Law Offices of Barry M. Wax

For 32 years, I have provided both State- and Federal-Level representation for those facing charges ranging from wire fraud, mortgage fraud, and healthcare fraud to identity theft, drug trafficking, money laundering, murder, DUI, domestic violence and numerous other criminal charges. In every case, it is my commitment to one-on-one service and support that has separated the Law Offices of Barry M. Wax from other criminal defense firms. When it comes to your future, you need a strong defense and the ability to make the right choices and regain control of your life.