What is the discovery phase in a criminal case?

| Feb 23, 2021 | Firm News

Once a person enters a “Not Guilty” plea to the charges filed against them, the next phase of a criminal case is called the discovery phase. Defense counsel files a written motion demanding discovery from the prosecutor. Discovery is the fancy lawyer word for finding out about the prosecution’s case, and what evidence they plan to present. This information often includes law enforcement reports and records, as well as statements from any witnesses who may testify for the prosecution. It may also include lab reports from any scientific testing conducted. Finally, it often includes any photos, any recorded witness statements, and any dashboard or body camera video used by law enforcement officers. A good defense lawyer will then thoroughly review the evidence to properly evaluate the strength or weakness of the prosecution’s case. This is done in order to make an informed decision on whether to proceed to trial, or to enter in to plea negotiations. With these things in mind, it must be remembered that the prosecution is NOT required to share its theory of the case, its strategy, nor its notes taken on the case. These things are often called “work product”, which is not discoverable. Once the defense obtains discovery from the prosecution, it is then obligated to provide reciprocal discovery to the prosecutor. This often includes any witness names, any scientific testing conducted by the defense, and any photos, video, audio or documentary evidence to be offered at trial. Unless a case is very simple, discovery is usually an ongoing process rather than a single exchange of information.