Have you heard the word “discovery” in relation to your criminal case but don't know what that means? To put it must simply, “discovery” in your criminal case refers to the exchange of evidence between the State (the prosecutors) and the defense (your defense attorney). The following will explain everything you need to know.
The Prosecution Produces Discovery (or Evidence)
Most of the “discovery” in a criminal case is produced by the prosecutors to the defense, which includes police reports, videos (such as body camera videos), and other evidence the State intends to rely upon to prove that the defendant committed the charged crime.
- Police reports are written documents which describe what the relevant law enforcement officers did during the investigation of the case. These are usually the first documents produced by the prosecution in discovery.
- Police reports provide the first indication of what legal issues are likely to arise in the case, including the first indications of whether law enforcement broke any rules (although, because the police write the reports, there is always the possibility that they simply omit any misconduct from their own reports).
- The police reports will also usually provide indication of the likely witnesses in the case, including identifying who police spoke to. If witnesses provided written statements, those will also be provided along with the police reports.
There are three types of video files which are most often provided in discovery: body camera videos, dashcam videos, and security camera videos.
- Body camera videos are captured by video cameras worn by the law enforcement officers. They will often show what happened during an arrest, or capture law enforcement's conversation with witnesses at the scene of the investigation.
- Dashcam video are videos recorded from cameras on the front of law enforcement vehicles. These videos (if they exist) will show, for example, a law enforcement traffic stop initiated by an officer on a defendant's vehicle.
- Security camera videos might also exist. These could be public security videos, such as cameras belonging to the local government, like traffic cameras. Alternatively, they could be cameras operated by local businesses, such as Walmart's cameras inside or outside its stores. Lastly, they could be cameras from a private residence, such as a Ring doorbell camera which captured evidence of a crime.
Seized Digital Evidence
- Depending on what crime you are accused of committing, law enforcement might have obtained search warrants for your cell phone, laptop, desktop computer, or other electronic devices. Obviously, this can be very bad for the Defendant if they engaged in electronic communications which discussed the criminal activity.
- If the prosecution has obtained access to your digital property, they will produce that evidence in discovery. Most often they will create digital copies, or “Images,” of the hard drives they have seized from your computers.
- The prosecution can also get digital evidence against you from other sources. If you maintain social media accounts on Facebook, Google, Instagram, Tik Tok, or on other applications, the prosecution might subpoena those companies, demanding that they produce all your records. This might even include records of all your online communications and messages. If the government obtains these documents, copies will also be produced in pretrial discovery.
What is Not Produced in Discovery?
Not everything obtained by law enforcement, or created by the prosecutors, is disclosed to the defense prior to trial. The prosecutor only has a legal obligation to share material exculpatory evidence with the defendant's attorney. This means that non-exculpatory evidence might not always be disclosed by the prosecution. Furthermore, “work product” created by the prosecution is protected, and is almost never subject to discovery in a criminal case.
What is Exculpatory Evidence?
As just noted, the defendant's rights are often limited to obtaining exculpatory evidence from the prosecution. But what is exculpatory evidence? Exculpatory evidence is, most simply, evidence which casts doubt on the prosecution's theory that the defendant is guilty, or which tends to make the defendant's guilty less likely. The prosecution must also disclose evidence which, although itself not exculpatory, is likely to lead to the discovery of exculpatory evidence.
What must the Defense Disclose to the Prosecution?
The defense also has legal obligations to disclose evidence that the defense intends to use at trial to the prosecution. This is known as reciprocal discovery.
- Your defense attorney must disclose, for example, evidence of an alibi defense. An alibi defense is a defense that the defendant could not have been committed the crime because they were somewhere else at the time the crime occurred. For example, if you were at a movie theater in Reno at the same time a murder occurred in Las Vegas, that would evidence of an alibi.
- The defense must disclose other evidence. For example, if the defense intends to utilize an expert witness, they must disclose that expert witness, and any report created by that expert witness, prior to trial. One example would be an expert in ballistics, who might testify that a gun used in a particular crime does not match a gun found in your possession by comparing distinct markings each gun leaves on fired projectiles.
- Your defense attorney must also disclose a list of witnesses, and proposed exhibits, the defense intends to rely upon or admit into evidence at the time of trial.
What if the Prosecution Hides Evidence?
If the prosecution has not disclosed evidence, and defense counsel believes the prosecution has that evidence, the first step is to simply contact the prosecutor and request that they disclose the evidence. If they agree, then the issue is resolved.
If not, defense counsel must go to the Court on your behalf and file what is called a Motion for Discovery. This type of Motion asks the Court to require the prosecution to turn over evidence, in its possession, that they do not want to disclose.
If the prosecution hides the evidence in the case, but this is only discovered during or after trial, a few things could happen. A mistrial could be declared, and if the prosecution did something wrong on purpose (such as intentionally hiding evidence), then it might even create a mistrial with prejudice, which would prevent retrial and end the case with a total dismissal. If you have already been convicted, and it is later learned that the prosecution hid evidence, your attorney can do various things to seek relief, including filing a motion for a new trial.
The only way to ensure that you receive all of the evidence in your case is with the help of a Las Vegas criminal defense attorney. Contact Liberators Criminal Defense today so that we can help defend your case and protect your right to receive all relevant discovery in your case.