Criminal Pretrial Discovery

The discovery sought depends on the type of criminal case being prosecuted. For example, if the case being prosecuted is drunk driving, the defense will seek discovery of the police report, witness statements, video, and the breathalyzer results. The defense will also request the maintenance and calibration records of the subject breathalyzer to determine if there were any irregularities that might bring into question the accuracy of the test results.

Pretrial Production of Discovery

Informal Discovery Usually Begins At Arraignment

Discovery usually commences at arraignment and continues until the date set for trial. Most of the time, especially in misdemeanor cases, the prosecutor will hand the defense a copy of the police report at the time of arraignment or shortly after that.

In the early stages of discovery, the defense will usually informally confer with the prosecution about the case and informally request the prosecution produce certain discovery items. Most of the time, the prosecutor will deliver the requested discovery without the defense needing to file a formal motion to produce discovery.

Prosecutor Objects to Producing Specific Evidence

The defense Must File a Formal Discovery Motion

Sometimes the prosecution is unwilling to produce specific evidence on legal grounds and will force the criminal defense lawyer to prepare and file a formal motion asking the court to order the prosecution to produce the requested discovery.

The defense discovery motion serves two purposes. First, it forces the prosecution to admit or deny whether such evidence exists and, if so, whether the evidence is under the control or possession of the prosecution.

Second, if the evidence exists, whether the prosecution will assert a privilege or some other protective measure to challenge the defendant’s right to such discovery.

Defense Requests For Prior Complaints of Officer Misconduct

Prosecutor Always Objects To Producing Past Complaints Against Officer

The defense seeks to learn whether an investigating officer has used deceptive or dishonest behavior or other past conduct that calls into question the officer’s credibility as a witness.

As part of its discovery, the defense may wish to discover whether the investigating officer has a history of police misconduct—specifically, former citizen complaints of fabrication and deceit, internal investigation reports, and official reprimands.

States Differ on Permitting Discovery of Past Police Misconduct

Most states have rules concerning whether such discovery requests are permitted and, if so, under what conditions and circumstances. In the California Penal Code, for example, the defense must allege a factual basis of relevant police misconduct in their own case before requesting similar histories from other cases. Such discovery motions are rarely granted except under extraordinary circumstances like the one noted below.

In the infamous California double-murder case, People v. O.J. Simpson, the defense team brought such a discovery motion alleging that a primary detective in the Simpson case, Mark Fuhrman had a long history of racist prejudice against black suspects both inside and outside the official scope of his law enforcement duties. The defense motion was granted.

Trial By Ambush is Not Permitted

Since courts abhor trial by ambush, the prosecution must engage in meaningful discovery with the defense. Cases should be tried based on the facts and the law – not through surprise.

The discovery not only prevents surprises at trial. It also helps the court narrow and manage the admission of evidence during the trial. Also, since the evidence is disclosed before the trial, both the defense and the prosecution can reasonably predict the likely outcome of the trial. Knowing what the evidence will show encourages the parties to negotiate a settlement and resolve the matter through a plea bargain.

Discovery of Witnesses Statements

Among the most important types of evidence are witness statements. Sometimes witness statements are in the form of transcripts, signed statements, or actual recordings. Almost all out-of-court statements (no matter how they are recorded) will be considered hearsay under the rules of evidence.

Trial Stage

While out-of-court witness statements at the trial stage will be excluded as hearsay unless such statement falls within an established exception to the hearsay rule, such as an  Admission Against Interest, however, hearsay does not apply to the pretrial discovery stage.

Pretrial Discovery Stage

At the pretrial discovery phase, all written or recorded witness statements that are objected to solely on hearsay grounds, will normally be discoverable and must be turned over to the defense during discovery.

Consult A Criminal Defense Lawyer

For more information on the criminal discovery process, consider connecting online with a Criminal Defense Lawyer