Criminal Discovery

Civil and criminal discovery refers to the process of receiving knowledge of the evidence for or against a defendant. In civil discovery, both sides can request relevant evidence or calculated to lead to the discovery of relevant evidence. Criminal discovery is different because defendants do not have an automatic right to discovery. State agencies are not required to obtain evidence the defense would like to have. Learn more about criminal discovery by using our free legal help tool below.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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The Constitution guarantees every defendant the right to face the accuser at trial. Because they have this right, many defendants assume that they also have the right to receive information about their case prior to trial.

The process of receiving knowledge of the evidence for or against a defendant is called discovery. Unfortunately, many states adhere to the principle that defendants have no automatic right to discovery. Despite this general idea, relief for obtaining discovery is still available. The extent, form, timing, and remedies for discovery violations will vary depending on each state’s criminal discovery rules. Read on to learn how these rules apply in different states.

Criminal Discovery Process

Nearly everyone has been involved in a civil suit like a divorce or car accident case. In those cases, both sides were allowed to conduct discovery with a minimal showing that the request could possibly lead to the discovery of evidence. In essence, civil discovery is often referred to as a fishing expedition because both sides can request information that is relevant evidence or calculated to lead to the discovery of relevant evidence, which could be almost anything. Many states have automatic discovery rules for certain items. If a party requests it, then the other side has to give it or face sanctions.

Criminal discovery is much different. Defendants do not have an automatic right to discovery. Many states require a defendant to file a motion and to make a request or a basic showing in court before the state is ordered to produce discovery. Unlike civil discovery, fishing expeditions are not permitted in criminal discovery. State agencies are required to make what evidence they have available for inspection by the defense. They are not required to obtain evidence the defense would like to have.

State codes of criminal procedure govern how a defendant can obtain criminal discovery, the extent of the discovery to be obtained, and when they may receive the discovery.

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Obtaining Criminal Discovery

The procedure for obtaining discovery varies by state. Some states require state attorneys to produce relevant evidence automatically. Kansas, for example, requires the state to produce certain discovery materials within 20 days after arraignment. Other states require a motion and a showing similar to the federal standard of materiality, which means that the evidence to be discovered must be shown to be relevant or important in some way.

To properly give a discovery request, a defendant usually has to make a basic showing that the evidence requested is material to the defense case, is in the possession of the state, and that there is good cause for requiring the state to produce the evidence. Most prosecuting agencies will agree to the production of certain items.

However, the defendant must make the criminal discovery request in the form of a written motion and then obtain a ruling on the request at a hearing. If the defense doesn’t ask for discovery, then the defense won’t get it, and will not be allowed to complain about the lack of discovery on appeal.

Constitutional Rights to Criminal Discovery

If a defendant lives in a state with limited discovery or procedures that strictly adhere to the principle of no discovery, a defendant still has certain constitutional  rights to discovery. Brady v. Maryland was the landmark case which set out conditions under which a defendant should received discovery. Regardless of a state’s procedures and rules, a defendant is always entitled to exculpatory evidence. Exculpatory evidence, or Brady material, is evidence possessed by the state that is material to a person’s defense. Failure to comply with this obligation is often referred to as a Brady violation.

Many of the items used in a criminal prosecution are paper documents or digital records. State statutes may authorize the state to charge a reasonable fee for copying any of these materials. If a defendant has been deemed indigent by the court and cannot pay the fee, the state is required to produce the discovery at no expense to the defendant.

Extent of Criminal Discovery

Because of the Brady v. Maryland decision, a defendant is always entitled to exculpatory evidence, sometimes called Brady material. Brady material is usually limited to evidence that would be favorable to the defendant. It does not apply to evidence that shows guilt. Many defendants have rejected plea bargains based on their perception of the state’s evidence, only to go to trial and discover that the evidence was much more convincing. Many state appellate courts have commented that even though this tactic impedes a defendant’s ability to make an educated decision, failure to produce extra evidence of guilt is not a constitutional violation. That means the extent of discovery depends on a state’s discovery rules.

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State Discovery Procedures

Most states have procedures that provide for the discovery of witness statements, grand jury testimony, patrol videos, offense report, and any scientific testing. Some states have very broad discovery provisions that allow a defendant access to more than Brady material. Kansas for example, requires the routine disclosure of statements, reports, and grand jury testimony without any showing that it is exculpatory. Other states place limits on the extent of discovery. To get his or her own grand jury testimony, a defendant in Texas must demonstrate a particular need for the testimony. Witness statements are not necessarily required to be produced until the witness testifies at trial. These limitations can significantly impact a defendant’s ability to prepare a defense. Regardless of the state, a defendant should request discovery as soon as possible to ensure that the defense has the information in time to prepare for trial.

Items of Criminal Discovery

Documents and digital data are easily copied and reproduced. However, evidentiary items such as weapons, vehicles, and drugs cannot be reproduced. States are not required to turn over such items of evidence to a defendant but are required to make these items “available for inspection.” This means that a defendant and the defense attorney have the right to look and inspect the evidence visually. If they want the evidence retested, they must make a motion to the court to authorize the re-testing and ask the court for access to the evidence by the defense expert as well.

Timing of Discovery

The timing of discovery depends on a state’s discovery rules. States with automatic or routine discovery procedures tend to have specific timelines for when a defendant should receive discovery, like the 20-day-after-arraignment requirement in Kansas. Other states require the discovery to be given a certain number of days prior to trial, or at a time mutually agreed to by the state and the defense. If an agreement cannot be reached, the court will set a time and place for the exchange of information or the inspection of evidence. Even though specific timelines are set, most states have a continuing duty to supplement any discovery responses up to the day of trial.

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Remedies for Discovery Violations

Discovery remedies depend on the nature and extent of the violation. A Brady violation is considered a violation of a constitutional right to discovery and can result in the reversal of a defendant’s conviction. To obtain a reversal, it’s not enough to show that information was withheld, but also that the information would have had material impact on the outcome of a defendant’s case. Material impact means that a defendant must show that the introduction of the evidence could have resulted in them being found not guilty. For example, many sexual assault convictions have been reversed over the last several years because defendants were not advised that DNA evidence existed proving that the defendant was not responsible for the assault. The absence of this evidence had a direct impact on determining the identity of the offender, and, as such, was considered Brady evidence that should have been turned over.

Material impact does not include withheld evidence that only shows that the defendant is guiltier. This is frustrating for many defendants who claim that they would have changed their trial strategy if they had known that the evidence against them was stronger. For example, if a defendant knew that the state had fingerprint evidence proving they were in the house during a burglary trial, a defendant may have chosen to plea guilty and let the jury decide punishment) rather than contesting the evidence and creating the appearance that he was lying about his innocence.

Even though several appellate courts have commented that the prosecutor should disclose all of the evidence ahead of time, these courts will not automatically consider the withholding of evidence a Brady violation just because a defendant would have made a different decision at or before trial. Evidence will only be considered material when it could have resulted in a defendant’s acquittal.

Once a defendant proves a Brady violation, the appellate courts do not generally guess what the result would have been. Instead, a Brady violation only results in a reversal on appeal. It does not result in an immediate acquittal. The case will be returned to the trial court for a new trial so that the new evidence can be presented to a jury to review.

State Remedies for Discovery Violations

States also prescribe their own discovery remedies for discovery violations. The first type of state remedy is the exclusion of evidence, also called a death penalty sanction. If the state was required to produce a statement or picture, but failed to do so, the court can exclude the evidence. The second type of state remedy is a continuance. If the state surprises a defendant with new evidence at trial, the court can suspend the trial to give the defendant’s attorney an opportunity to review the newly produced evidence.

Criminal Discovery Requirements for Defendants

A defendant in a criminal proceeding has the right to remain silent and is never required to give self-incriminating testimony. However, in some limited state provisions, a defendant may be required to participate in discovery. Some states require the defense, upon a motion by the state, to disclose the names and addresses of any expert witnesses they intend to call at trial. A defendant who wants to use an insanity defense may also be required to produce any psychological reports that support his or her insanity claim.

The second provision is through the civil system. If the state files a civil forfeiture suit to forfeit property to the state, as when a large amount of cash is seized during a drug raid, forfeiture petitions are usually filed through the civil system. A defendant is not required to file an answer and participate in the civil lawsuit, but any defendant that does may be compelled to engage in civil discovery or face civil sanctions for failure to comply.

Remedies for discovery violations are similar to those applied in criminal proceedings. Evidence can be excluded or a continuance can be granted for a failure to disclose certain information pursuant to a court’s discovery order.

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