The discovery process is the exchange of information that takes place between the prosecutor and the defense attorney after the filing of the charging document. The process is initiated at the option of the accused. It is usually, but not solely, started by filing with the court and serving on the prosecuting attorney a “Notice of (Request for) Discovery.” Once the accused is deemed to have started the discovery process, he or she is obligated to reciprocate within the limits of the rules.
Within 15 days after service of the Notice of (Request for) Discovery, the prosecutor is obligated to disclose and permit to be inspected, copied, tested and photographed, certain information and material within the State’s possession or control. The response includes, but is not limited to, a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged, or any defense thereto, or to any similar fact or evidence to be presented at trial.
A partial listing of items to be provided by the government is as follows:
(1.) any written or recorded statements and the substance of any oral statements made by the accused;
(2.) tangible papers or objects taken from, or belonging to, the accused;
(3.) co-defendant statements;
(4.) information obtained through electronic surveillance;
(5.) items recovered from a search and seizure;
(6.) reports and/or statements from experts;
(7.) items in the possession of law enforcement that can be tested for DNA;
(8.) tangible papers or objects not obtained from, or belonging to, the accused and intended to be used at trial.
There is also the requirement that the prosecutor notify the accused if there is material or information that was provided by a confidential informant (C.I.). However, the identity of the C.I. can only be disclosed by the defense filing and winning a pretrial motion for disclosure of identity. While a C.I. can be used in any criminal investigation, a C.I. is routinely used during serious drug trafficking investigations. He or she sometimes receives money or other benefits, such as the reduction of his/her own charges or a lighter sentence, in exchange for his/her cooperation.
Sometimes a C.I. is a close friend or family member of the accused.
One particular provision of the discovery process that LHJ LAW considers a “strong shield” for clients is the government’s obligation to disclose to the accused any material information within the government’s
possession or control that tends to negate the guilt of the accused as to any offense charged, regardless of whether the accused has incurred reciprocal discovery obligations.
At any time after the filing of the charging document, any party may take the deposition by oral examination of any person authorized by the Rules of Criminal Procedure. A deposition is a question and answer session that takes place between a witness and the attorney who will be opposing the witness at trial. The witness is sworn to tell the truth. Any deposition taken pursuant to the rules may be used by either party for the purpose of contradicting or impeaching the testimony of the deponent as a witness at trial.
LHJ LAW believes that a client often knows the facts of his or her case as well as, or better than, law enforcement. Clients are therefore invaluable resources. A client should have the opportunity to not only view and assess the material obtained during discovery, but should help his or her attorney identify other possible materials, or witnesses that may exist, even if the material or witnesses are unknown to the government. After completing the discovery process, the attorney should then strategically marry the facts to the law in a way that provides the best defense for the client.
