A defendant who’s charged with committing a crime must plan a defense for trial. In order to plan the best defense, he may need to know certain information that’s in the hands of the government. The defendant has the legal right to have access to many types of evidence before trial.

The process of obtaining relevant information that’s held by the other party is called discovery. There are certain types of information that the government must legally disclose to the defendant upon his request. However, there are certain types of information that doesn’t need to be legally disclosed.

Procedures for Obtaining Evidence

Once the defendant is charged with a crime, the court sets the time for when a request for discovery can be made. The defendant can then make a formal request, called a motion, for information. The government must then disclose the information requested by the defendant.

The government has a continuing duty to disclose evidence after a request for disclosure has been made. It must promptly disclose additional evidence whenever it discovers it, even during trial.

Evidence that Must Be Disclosed

Courts usually allow the discovery process to be very broad. The disclosure of evidence helps the defendant make informed decisions and minimizes surprise at trial. Some examples of evidence that must be disclosed by the government if requested by the defendant include:

  • Oral and written statements made by the defendant to police officers
  • Tape-recorded statements of the defendant
  • Testimony by the defendant at a grand jury
  • Defendant’s criminal record
  • Books, papers, documents and photographs
  • Information from a physical or mental examination
  • Information from a scientific test or experiment
  • Names and qualifications of experts and a summary of their testimony

The defendant has the right to the disclosure of any exculpatory evidence. This is evidence that favors the defendant and tends to clear him of guilt. Courts don’t want the government covering up any evidence that’ll help prove the defendant didn’t commit the crime.

The defendant also has a qualified right to the disclosure of any confidential informants. He must prove to the court that disclosure would be relevant and helpful. Mere suspicion of relevant information isn’t sufficient to allow disclosure since the government also has a qualified right in protecting an informant’s identity.

Evidence Exempt from Disclosure

There are certain types of evidence that the government doesn’t have to disclose to the defendant. These include:

  • Work product of the government
  • Statements by government witnesses

The work-product rule protects any documents made by the government in connection with investigating or prosecuting the case. The defendant isn’t entitled to know the theories and thought processes of the government.

The government doesn’t usually have to disclose statements made by prospective witnesses before trial. Such statements aren’t open for disclosure until after the witness has testified on direct examination.

Government Entitled to Disclosure

The government may only request disclosure if the defendant has first requested disclosure from the government. For example, if the government complied with a request from the defendant to disclose certain documents or photographs, the government is entitled, upon request, to inspect and copy the documents and the photographs. The two main criteria is that the item is within the defendant’s possession and he intends to use it at trial.

Discovery Misconduct

The defendant is guaranteed the right to a fair trial. The government must follow the law and respect the rights of the defendant. If it fails to do so, it commits misconduct. There are many different types of misconduct. One of the most common is the withholding of evidence.

If the government fails to disclose relevant information, the court may impose a punishment on the party. Some examples include:

  • Court may order the party to disclose the information at a specific time, place and manner
  • Court may grant more time to the other party to review the newly disclosed evidence and prepare for trial
  • Court many prevent the party from using the undisclosed evidence

If the government fails to disclose evidence that favors the defendant, he may be entitled to a new trial. The main question is whether the undisclosed evidence would have affected the outcome of the trial.

Questions for Your Attorney

  • How can I make sure that the government is disclosing all the evidence it finds in my favor?
  • Do I have to inform the government of any expert witnesses I may call during the trial? Do I have to inform the government of any physical or mental examinations?
  • Must the government disclose the reports of any experiments it took for the case? What if the reports contained information on the government’s theories of the case?