A criminal jury trial is a very complex process, which requires talent, experience, and deep knowledge of various areas of law. This means that when a criminal case goes to trial, there are a lot of moving parts. But even before the start of the trial, an attorney must go through many steps to prepare for such a complex undertaking, which can be very time-consuming but necessary. Discovery is probably the most important such step, without reviewing it trial is not possible. 

What is Discovery in a Criminal Case?

Pre-trial discovery is a process in a criminal case where both parties are allotted a specific timeframe to gather, develop and exchange evidence they intend to use to support their case. Failure to adhere to these timelines may result in the case being dismissed, or in exclusion from trial evidence that was never provided or provided late.

What is the Purpose of Discovery?

The primary purpose of discovery is to prevent a situation called “trial by ambush.” That is a situation where one side does not learn of the other’s witnesses or evidence until the trial which does not give them adequate time to prepare for trial. Discovery allows both the defense and the prosecution to know what evidence might be presented before the trial begins.

Discovery is part of ensuring that a defendant has a fair trial and has the opportunity to answer all allegations made against him or her. In order to do that, he or she must be made aware of all the evidence that has been gathered to support the allegations.

What Evidence Can be Legally Obtained During Discovery

According to the basic rules of discovery, the defense and the prosecution are both allowed access to information that relates to the case, and which would incriminate or exonerate the Defendant of wrongdoing. It doesn’t matter if it is a major piece of evidence or a very small, seemingly minor one. The only exception to this is if the information is legally protected or is privileged.

Some of the types of evidence that an attorney gets in discovery include:

  • Evidence collected by law enforcement
  • Documents that relate to the case
  • The identity of any person or people who may have information about the case or know something about it
  • Information on expert witnesses including background, education, and professional information 
  • What defendant did in connection with the crime
  • Detailed technical information that is relevant to the case
  • Things that were discussed or said at a specific place and time such as the time leading up to the commission of the crime

The list is long, and attorneys can introduce all different kinds of evidence if it is relevant to the case and admissible.

What Cannot Be Obtained During Discovery

Many things related to a case and provided as part of discovery can be introduced at trial. There are, however, certain types of evidence that cannot be used during the trial due to its confidential nature or for some other reason. For example, information used for the sole purpose to humiliate or to embarrass a party cannot be used. 

Other types of information that are protected from disclosure include:

  • Privilege – Confidential Conversations in these relationships:
    • Husband and wife
    • Doctors and patients
    • Lawyers and their clients
    • Religious advisors and their advisees
  • Private matters that are not relevant to the case include:
    • A person’s sexual preference, sexual practices, sexuality, partners, etc.
    • Religious or spiritual beliefs
    • Information regarding family relationships
    • Body or health issues
  • Third-party privacy rights:
    • Protects individuals who are not involved in the case or directly related to the case, such as witnesses, family members, or co-workers

Sometimes during the discovery process information that is of a confidential or sensitive nature is revealed. A judge can issue a Protective Order that protects the information from being made public, ensuring that it is kept confidential. Both the defense and the prosecution are barred from disclosing this protected information to any third party.

Can a Party Refuse to Produce Certain Documents for Discovery?

Sometimes a defendant must provide information as part of Discovery that he or she does not want to provide. In these cases, the defense can contact the prosecution and let them know that they object to the disclosure of certain information and provide reasons why. 

The reasons must be valid, such as:

  • The information is not relevant to the case
  • If a request is made, the request is too broad and is not specific enough to provide information that is relevant to the case
  • The information requested is protected as a privilege

Federal Criminal Discovery Rules

The rules of discovery for federal criminal trials are found in the Federal Rules of Criminal Procedure under Title IV Rule 16 Discovery and Inspection.

Rule 16 is the primary law that governs federal criminal case discovery. Under this rule, when the defendant makes a demand on the government then the government must produce information and items such as the defendant’s criminal record, defendant’s statements, reports of any tests or examinations, documents, physical items, or other evidence that the prosecution is intending to introduce during the trial, and other relevant information.

However, it is a reciprocal rule, so when the defendant invokes the rule for discovery, then the government or prosecution has the right to demand the same types of information from the defendant.

There are also several Supreme Court decisions that have shaped how discovery is handled in a federal criminal case. Two of these decisions are Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).

The Jencks Act is another law that pertains to discovery and is relevant to criminal defendants. Under this act, recorded statements must be shared with the defendant. 

In real-world practice, Defense attorneys rarely make written discovery demands in criminal federal cases. Usually what happens is that a federal judge orders the government and the Defendants to provide all the discovery to each other as required by Rule 16, the court also sets a deadline by when this must be done

New York State Criminal Discovery Rules

In 2020, New York state reformed its discovery law and replaced what was previously called the “blindfold” law. The new statute requires that evidence is shared by default between the defense and prosecution on a strict timeline.

Under this law, all materials that are relevant to the case are subject to automatic discovery. This includes almost all the evidence the State has, and judges are required to apply a presumption of openness, which favors disclosure when interpreting discovery statutes. There is also a strict timeline that is immediate, 30 days after arraignment. If the material is voluminous or there is a viable reason why the prosecutor can’t provide them, then an additional 15 days is allowed.

The discoverable materials that prosecutors must turn over include the disclosure of names and contact information for any individual who has relevant information on the case, Brady disclosures (any information which tends to show that the defendant is innocent), electronic recordings, witness statements, and other information. There are 21 types of information on the list. Law enforcement is an extension of the prosecution, so any information or documentation in the possession of New York law enforcement is considered to be in possession of the prosecutor as well. 

A defendant now has a right to discovery before considering a plea offer, and the state cannot condition a plea offer on the defendant giving up his right to discovery. 

The defense is required to provide to the prosecution reciprocal discovery. The law also allows for some information to be withheld by requesting protective orders. This can be to protect the safety of witnesses or to preserve the constitutional rights of the defendant.

Once the prosecution has complied with all discovery requirements, they must submit a Certificate of Compliance (COC). A supplemental COC is filed by the prosecution in the event they share additional evidence even though they have announced that they are ready for trial. The supplemental COC must also justify why the prosecution has a delayed disclosure. Evidence or anything related to the case that law enforcement possesses is considered to be in the prosecutor’s custody and control. 

Under the reformed discovery laws, the State cannot announce ready for trial unless it has filed a COC. However, defendants have a constitutional right to a speedy trial and that clock does not stop just because the State did not file a COC. This means that after a certain amount of time if the prosecution is still not ready for trial, a criminal case may be dismissed.  

What are Discovery Sanctions?

Sanctions are penalties for failing to meet the requirements of discovery statutes. This can take many forms. The defense may allege that the prosecution has not submitted all the evidence or that there is missing evidence, that the prosecution is not ready for trial, or that a party has been prejudiced due to the prosecution’s failure to disclose evidence.

If the sanction results in the charge being dismissed, the prosecutor does have the ability to appeal it.

If you are facing a jury trial don’t do it alone. You need a criminal defense attorney who is willing to fight for you and use his years of education and experience to ensure that your rights are protected.

You need The Litvak Law Firm. Mr. Litvak has the experience and knowledge to handle your jury trial and to make sure that you have the best possible outcome. Call today at (718) 989-2908 for your free consultation and take the first steps to protect yourself. A criminal jury trial is no place to try to navigate alone. Call today and get the representation that you deserve.