In the United States there are two types of laws which are meant to punish wrongdoing and/or compensate victims of illegal and harmful acts. These two branches of law are known as criminal law and civil law. Civil law addresses behaviors that cause some sort of injury or harm to an individual or other private party, who is known as a plaintiff.
Plaintiffs are then able to seek compensation for their injuries from the wrongdoer through civil lawsuits. The penalties for any parties that are found liable for such acts are generally monetary in nature, but may also include court-ordered remedies such as injunctions or restraining orders.
Criminal law addresses behaviors that are considered to be an offense against society, the state, or public. As such, it does not matter if the victim is an individual person or a piece of property. An individual who is convicted of a crime may be forced to pay criminal fines, imprisoned in jail or prison, or a combination of both. Regardless of whether someone is being charged with a serious crime or a minor crime, the accused still has the right to a trial, a right to receive information about the crime they are charged with, and other legal protections.
What Is Criminal Discovery?
Criminal discovery is the legal process by which a criminal defendant can obtain information about their case that is held by the prosecutor. The process of discovering the information is sometimes referred to as the act of disclosure. It is important to note that each state has its own set of criminal procedure laws regarding the criminal discovery procedure. However, all states must comply with Constitutional laws. Under the Sixth Amendment of the United States Constitution, an individual that is accused of committing an offense is guaranteed the right to a fair trial.
One of the main purposes of the criminal discovery phase is to ensure that this constitutional right is protected. As such, most state laws will contain an outline of a defendant’s rights to discovery in their criminal procedure laws on pretrial proceedings. Additionally, most states have modeled their criminal discovery procedures after Rule 16 of the Federal Rules of Criminal Procedure in order to ensure compliance with the Constitution.
Rule 16 of the Federal Rules of Criminal Procedure is the federal rule that regulates criminal discovery by the defendant of evidence that is in possession of the state prosecution. Additionally, it also regulates the discovery by the prosecution of evidence in possession of the defendant. The rule permits the defendant to request the court to discover certain materials that are relevant to the crime the defendant is being charged with.
The state prosecution is limited and reciprocal to the defendant’s prosecution. This means that if the defendant is granted discovery of certain items, then the prosecution may also move the court for discovery of similar items that are under the defendant’s control.
What Things Can Be Discovered?
As noted above, the criminal discovery phase is an important part of the criminal trial process. During the criminal discovery phase, both the prosecution and the defendant (including their attorney) must generally share all of the information that they have regarding the criminal charge being prosecuted. The criminal discovery phase will typically occur prior to the case at hand beginning, i.e. during the pre-trial phase of the criminal trial process.
In general, if the prosecution intends to use evidence at trial, a defendant has the right to copy, photograph, or inspect such information that pertains to the crimes that they are being charged with. Examples of common information that is subject to criminal discovery includes, but is not limited to:
- Any oral statements that were made by the defendant before or after arrest that were recorded.
- For example, any statements that were made in an interrogation by a law enforcement officer or captured by a police officer’s body cam should be provided to the defendant;
- Any other written or recorded statements that were made the defendant, such as a signed witness statement or accounting of events;
- Any prior criminal records that the defendant might have on their record that may be utilized in criminal sentencing;
- Any documents, data, photographs, tangible objects, buildings, or places the prosecution plans on utilizing in the prosecution of the case
- Any witness statements that were made by the police at the scene or during a resulting investigation;
- Personnel files of all the police that were involved in the case;
- Copies of any and all reports or test results, such as breathalyzer or blood tests; and
- A summary of any expert witness’ testimony that may be utilized at trial.
Although it may seem like a criminal defendant has access to all of the prosecution’s evidence, that is not necessarily true. In general, in order to discover any of the information above, the information possessed by the state must be:
- Material to the defendant in preparing a sound criminal defense;
- Information that the prosecution plans to use in the prosecution of its case-in-chief at trial; and
- Information that the government or prosecution has actual possession, custody, or control over.
In general, the reverse of the above is also true for the prosecution. This means that if a criminal defendant requests disclosure of any information, the government may also be allowed to inspect, copy, or photograph the same requested information. In some cases, the allowance of the prosecution to possess additional information may actually result in the prosecution dropping the criminal case. Additionally, a criminal defendant must also give the prosecution a written summary of any expert witness testimony that they intend to utilize in their legal defense at trial.
In addition to the requirement of disclosure present in Rule 16 of the Federal Rules of Criminal Procedure, all prosecutors must also follow the Brady rule. The Brady rule is a rule of disclosure that is named after the 1963 federal case Brady v. Maryland. The rule requires prosecutors to disclose materially exculpatory evidence that is in the government’s possession to the defense. These materially exculpatory pieces of evidence are commonly referred to as “Brady material.”
In short, “Brady material” is any evidence that is favorable to the accused. This includes any evidence that goes towards negating a defendant’s guilt, towards reducing the defendant’s potential sentence, or evidence that affects the credibility of a witness to the crime.
It is important to note that if the prosecution does not disclose Brady material, the evidence may be suppressed by the court as the defendant may be considered to be prejudiced. The evidence will be suppressed regardless of whether or not the prosecutor knew the evidence was in their possession, or whether or not the prosecutor intentionally or inadvertently withheld the evidence.
What Things Cannot Be Discovered?
Although state laws may differ slightly regarding criminal discovery, typically a criminal defendant does not have the ability to inspect, copy, or photograph information if it is:
- An internal government document between an attorney that works for the government and another governmental agent; or
- A transcript of a grand jury.
The opposite of the above is true as well. Thus, the prosecution cannot inspect, copy, or photograph any information of the criminal defendant if it is contained in:
- Reports, memorandums, or documents between the criminal defendant and their attorney; or
- Statements that were made between the criminal defendant and their attorney.
Do I Need an Attorney for Help With Criminal Discovery?
If you have been charged with a crime and are trying to gain access to certain information held by the prosecution, it is in your best interests to immediately contact an experienced criminal defense attorney.
An experienced attorney will be able to ensure that you gain all evidence that is crucial to forming a solid legal defense on your behalf. Additionally, an attorney will also be able to raise any relevant legal defenses on your behalf. Finally, an attorney will also be able to represent you in court, as needed.
