When formally facing criminal charges, defendants are entitled to certain information and evidence regarding the allegations against them. The prosecutor must turn over information relevant to the case through a process called “criminal discovery.” The defense must, in turn, provide similar information to the prosecution.
This article will review the criminal discovery process and what happens when one side violates the rules.
What Is Criminal Discovery?
Criminal discovery is a process of sharing information on a case by both sides—the government prosecutor and the defense.
Why Have Discovery?
One of the key purposes of discovery is to prevent unfairness in a criminal trial. A prosecutor’s job in pursuing criminal charges is to get to the truth of the matter and seek justice, not simply to secure a conviction. By gathering and sharing evidence and information (usually before trial), both attorneys can review the information, prepare for the case, and maybe even agree to a plea bargain and avoid the time and expense of a trial. (Despite what movies portray, surprises at trial are disfavored and likely to play out in sanctions or a continuance, not a blockbuster win.)
The discovery process also helps to level the playing field in criminal matters. The government tends to have the lion’s share of resources in a criminal case, including police reports, witness statements, forensic analysis, and criminal records. But discovery isn’t meant to be a free-for-all for the defense. The defense must request discovery from the prosecution (even if informally) and answer the government’s reciprocal discovery requests.
What Information Must Be Turned Over in Discovery?
Attorneys don’t need to turn over their entire files to answer a discovery request. In fact, certain information is not subject to discovery, such as attorney-work products (trial theories, strategies, and so on) and information subject to attorney-client privileges. Items that have no relevance to the case also don’t need to be turned over.
The prosecution must generally turn over items in their possession that are material to the case. Material information refers to documents, reports, tests, and other items that are relevant to developing a defense. The most important obligation of the prosecutor is a continuing duty to turn over “exculpatory” evidence. (More on this below in the section “What Is Brady Material?”)
What Are Common Criminal Discovery Requests?
The defense will typically ask the prosecutor to turn over the following information in a discovery request:
- police reports
- forensic analysis results (such as DNA results)
- results of physical or mental examinations
- relevant evidence seized or obtained during the criminal investigation (including photographs of the crime scene)
- names and addresses of trial witnesses
- relevant witness or victim statements
- statements made by the defendant to police
- summaries of expected expert witness testimony, and
- sometimes, criminal records of witnesses and the defendant.
The defense also has a duty to reciprocate in discovery. But, typically, the defense won’t have the same level of discovery duties as the prosecution simply based on the limited information in the defense's possession. The prosecution will usually ask the defense to turn over its witness lists, summaries of expected expert witness testimony, and test and exam results conducted by the defense. The defense must also notify the prosecution of any defenses it intends to raise, such as an alibi or self-defense.
What Is a Motion of Discovery?
Much of the discovery process takes place informally or through written requests (often called “notices for discovery”) between the defense and government. If a question arises regarding one side’s responsibility to turn over information or their failure to do so, the other side can file a motion of discovery with the court.
Parties Disagree or Need Additional Information
This situation might occur if the prosecutor doesn’t consider certain information “material” (and thus subject to discovery), but the defense disagrees. Or perhaps the information requested isn’t within the prosecutor’s control—here, the defense might ask the court to order the prosecutor to assist the defense in getting the materials from another government agency. On the flip side, the prosecutor might make a motion seeking certain discovery from the defendant that goes beyond witness lists, such as requesting the defendant submit to blood tests or provide handwriting samples.
Discovery Motions and Remedies
After a motion is filed, the judge must decide what’s discoverable and what’s not. And depending on what items are requested, the requesting party might need to show good cause as to why they need the evidence.
If the judge sides with the requesting party, the typical remedy is an order compelling discovery (making the party turn over the information). The judge might also grant a continuance (a set amount of time) for the requesting party to review the information. But if a party acted in bad faith or prejudiced the trial somehow, the judge can impose harsher sanctions, such as excluding certain evidence, declaring a mistrial, or dismissing the case.
What Is Brady Material?
For most discovery requests (those described above), state laws or court rules dictate what must be turned over and when. But one important piece of discovery is constitutionally required. As referenced above, prosecutors have a constitutional and continuing duty to turn over any "exculpatory" evidence to the defense. The Supreme Court established this rule in the case Brady v. Maryland—hence, why it’s referred to as Brady material. (373 U.S. 83 (1963).)
What Is Exculpatory Evidence?
Exculpatory generally means evidence that tends to contradict the defendant’s supposed guilt or that supports lesser punishment. The evidence doesn’t have to strongly indicate innocence in the way that an alibi, for example, would. It’s generally enough that the evidence provides significant aid to the defendant’s case. So, information that affects the credibility of a critical prosecution witness—like the fact that the prosecution offered its witness leniency in exchange for testimony—is among the kinds of evidence prosecutors have to disclose. (Giglio v. United States, 405 U.S. 150 (1972).) Another example would be evidence that points to alternative suspects in a case where the defendant's identity is at issue. (Maryland v. Adnan Syed, Case Nos. 199103042 to 046 (2022).)
What Is a Brady Violation?
A prosecutor violates the law by not turning over exculpatory evidence, even if the failure to disclose wasn’t intentional or was beyond the prosecution’s control. The remedy for a Brady violation generally depends on when the violation was discovered, its impact on fairness, and how guilty the prosecutor is.
If the evidence comes to light before trial, the defense attorney might ask for a continuance to investigate the new information. But say the prosecutor intentionally held off on turning over the evidence, the defendant may ask the judge to dismiss the case or instruct the jury on the prosecutor’s violation. Evidence discovered during the trial could lead to a motion for a new trial. After a conviction, the defendant can seek to overturn the conviction (or, albeit rare, the prosecution might do so). The more prejudicial the violation is to a fair trial, the more likely a judge is to toss the current case.
Talk to a Lawyer
If you have questions relating to evidence in a criminal case, talk to a criminal defense attorney. A local attorney can help you understand what is happening in your particular case.