Criminal Discovery: What it is and How it is Used by the Defense

In the United States, the discovery process in the criminal justice system is governed by federal and state laws and rules of criminal procedure. For example, Federal Rule of Criminal Procedure 16 sets out the requirements for discovery in federal criminal cases. State criminal procedure rules may vary depending on the jurisdiction.

In general, the prosecution in a felony case is required to disclose to the defense any evidence or information that is material to the case. This includes witness statements, police reports, crime scene images, forensic reports, expert witness reports, and other documents. This is known as “disclosure” or “discovery” by the prosecution. The prosecutor must also disclose exculpatory evidence.

The criminal defense attorney is also required to disclose to the prosecution any evidence or information that they plan to use at trial. This also includes witness lists, expert reports, and other documents. This is known as “reciprocal discovery” or “reciprocal disclosure” by the defense. However, attorney work product is protected and not subject to disclosure.

It’s important to note that there may be limitations on the types of materials that are available through discovery. There may also be restrictions on how the materials can be used in court. Additionally, the prosecutor may also have the right to request discovery from the defense. This means that the defense may need to provide certain materials as well.

Discovery in a DUI Case

In a DUI case discovery will typically consist of the narrative police report or written description by the police officer of everything observed at the roadside. There may also be witness statements. Your lawyer may also request the booking and/or inventory sheet from you or your car.

If there was an accident will be an OD-10, which is a form the police use to describe what happened. In the case of injury or death, there may also be an accident reconstruction report. In most cases, your lawyer will receive copies of any video recordings from the patrol vehicle or the body cam of the police officers involved.

If a chemical test was involved, then your lawyer will also be given a copy of the report from the breath, blood or urine alcohol or drug test. In some cases, your lawyer may also seek to obtain the maintenance and calibration records of the instrument used to test your bodily alcohol or drug content.

Most often your attorney will be able to obtain all these things by providing the prosecutor with a written request. Rarely, judges need to become involved, and where necessary and appropriate will order the prosecutor to produce a discovery.

If you were given a blood test, then your lawyer may send a FOIA request to the lab that did the testing. The purpose is to obtain their records.

At the Barone Defense Firm our FOIA request is quite detailed because we want to be sure that the State can prove that the blood test result is reliable, accurate, precise, and traceable. Also, that the lab has prepared an appropriate uncertainty budget demonstrating the range within which the test result falls has scientific merit.

For more information about uncertainty, and this scientific concept applies to a blood test in a drunk driving or intoxicated case, see Mr. Barone’s and Attorney Ted Vosk’s article explaining why breath and blood testing is not reliable.

Discovery in a Sex Crimes Case

In a sex crime case, the prosecution may present different types of evidence to support its case, such as:

• Victim statements: The prosecution may have statements from the alleged victim or other witnesses that describe the events leading up to the alleged sexual assault or abuse.
• Physical evidence: The prosecution may have physical evidence, such as DNA samples or medical records, that could support the victim’s allegations of sexual assault or abuse.
• Forensic evidence: The prosecution may present forensic evidence, such as evidence from a sexual assault kit or other forensic testing, to establish the defendant’s involvement in the alleged crime.
• Prior bad acts: In some cases, the prosecution may try to introduce evidence of the defendant’s prior bad acts or sexual misconduct to show a pattern of behavior or motive.
• Other evidence: The prosecution may also have other evidence, such as surveillance footage, text messages, or social media posts, that could be relevant to the case.

Discovery in a Federal Prescription Fraud Case

Discovery in a prescription fraud case at the federal level would consist of evidence that is material to the district attorney’s case. This might include witness statements, police reports, forensic reports, and other documents. In a prescription fraud case, the prosecution may present different types of evidence to support its case, such as:

Prescriptions and medical records: The prosecution may have prescriptions, medical records, and other documents related to the alleged fraudulent activity. This could include records of prescriptions filled, information about doctors and pharmacies involved, and other relevant medical information.

Financial records: The prosecution may have financial records related to the alleged fraud, such as records of payments or reimbursements related to prescription drugs.

Witness statements: The prosecution may have statements from witnesses who can testify about the alleged fraud, including pharmacists, doctors, patients, and other individuals involved in the case.

Surveillance footage: The prosecution may have surveillance footage or other evidence of the defendant’s activities related to the alleged fraud.

Forensic evidence: The prosecution may present forensic evidence, such as evidence of altered prescriptions or forged documents, to support its case.

Other evidence: The prosecution may also have other evidence, such as text messages or emails, that could be relevant to the case.

It’s important to note that the specific evidence presented in a prescription fraud case will depend on the facts and circumstances of the case. A skilled criminal defense lawyer can review the evidence and help their client prepare a defense strategy that challenges the prosecution’s case and protects their client’s rights.

It’s important to note that the specific evidence presented in a sex crime case will depend on the facts and circumstances of the case. A skilled criminal defense lawyer can review the evidence and help their client prepare a defense strategy that challenges the prosecution’s case and protects their client’s rights.

How a Defense Attorney Uses the Discovery

Here are some ways a defense attorney may use the discovery:

1. Evaluate the strength of the prosecution’s case: By reviewing the discovery, the defense attorney can evaluate the strength of the prosecution’s case and determine what evidence the prosecution has against their client.
2. Identify potential defenses: The discovery may reveal information that can help the defense attorney identify potential defenses to the charges. For example, if the discovery reveals that the police conducted an illegal search or obtained evidence through coercion, the defense attorney may be able to challenge the admissibility of that evidence in court.
3. Prepare for trial: The discovery allows the defense attorney to prepare for trial by identifying potential witnesses, evaluating the strength of the prosecution’s case, and developing a defense strategy.
4. Negotiate a plea deal: The discovery can help the defense attorney negotiate a plea deal with the prosecution, as it provides insight into the strength of the case and the evidence against their client.
5. Challenge the prosecution’s case: The discovery can be used to challenge the prosecution’s case in court, by pointing out inconsistencies or weaknesses in the evidence or by presenting evidence that contradicts the prosecution’s case.

Overall, the discovery obtained from the prosecution is a critical component of a defense attorney’s work, as it provides the information necessary to build a strong defense and protect their client’s rights.