What is ‘discovery’ in a criminal case?


Attorneys frequently use uncommon terminology, which leaves non-attorneys scratching their heads. The term “discovery” is one of those words that attorneys use all the time. It is as if the rest of the world is supposed to understand what they are talking about.

Discovery is what attorneys do in the pretrial phase of all legal cases, including criminal cases. There are rules laid out in the law that direct attorneys in their investigation of the case. The defense can make general and specific discovery requests for evidence that the prosecution may (or may not) have. Prosecutors either comply with the request, or lodge a formal objection with the court to the request. If the prosecutor objects, then the defense can file a motion to compel the prosecutor to comply with the request. The court will decide whether the law affords the defense a right to view the evidence sought for.

Sometimes you hear an attorney say something like “we have received discovery in your case”. That means they received the evidence requested in the formal discovery requests sent to opposing counsel.

Generally the prosecution will disclose everything they have to the defense. For this reason, they are required by the court rules to disclose any evidence they may use during the trial. If not, they forfeit the right to use it at trial. Also the prosecution is required to disclose any information that may tend to show that the defendant is innocent. As well as anything that may tend to mitigate the defendant’s culpability. Attorneys call this exculpatory evidence. If the prosecution fails to disclose exculpatory evidence, the court can dismiss the case for prosecutorial misconduct.

Since the stakes are so high for the prosecution when it comes to disclosing evidence, they tend to err on the side of full disclosure. However that isn’t always the case. Some cases are very complex, for example drug trafficking cases. Sometimes the state will not want to disclose certain information that may jeopardize an ongoing drug trafficking investigation. So, in those cases they will not be so forthcoming with the evidence. Furthermore, discovery requests, objections, and motions to compel will be common.

If you are currently going through a criminal case yourself, and wondering where the discovery is in your case, ask your attorney. Attorneys are required to share a copy of discovery with their clients, but not necessarily all the discovery. New rules allow the prosecution to redact discovery to take out certain identifying information of the victims and witnesses. The prosecution will provide a redacted copy of the discovery to the criminal defense attorney. Then the defense attorney will provide that to the defendant.

Once a discovery request is made by the defense attorney, the prosecution will usually comply with the request within 20 days. If you have not seen your discovery, and it hasn’t been that long, just hold tight, the wheels of justice move slowly.