Criminal Defenders On Trial – Making Discovery

Years ago, American courts generally allowed little or no discovery to be provided to people accused of a crime. Today that has changed. The federal court and all states now have rules that allow completely open discovery. This is one of the due process rights that makes the United States stand out as a shining beacon among most other criminal justice systems in the world today.

Under the landmark case Brady v. Maryland, 373 US 83 (1963), the United States Constitution requires the prosecution to openly provide all material that may contain exculpatory evidence useful to the Defense. In addition, the federal Freedom of Information Act [most states have enacted equivalent statutes] allows open discovery of information contained in public records. If the police officer went through a disciplinary process for falsifying police reports, for example, that should be made available to the Defense. Modern criminal discovery rules now allow the criminal defendant the same access to material and the openness of Discovery that has traditionally been available to civil litigants.

Receiving Discovery from the Prosecutor

Very early in the pre-trial phase of your case, the Assistant State’s Attorney will present a list of witnesses with their names and addresses. Before trial, they will also provide copies of police reports and a list of actual or physical evidence collected by crime scene investigators. This begins the discovery process. Your attorney should review this list with you. You will be able to add the names of other witnesses who could help your case. It can also provide the attorney with useful information about people the State has listed as witnesses.

The State will also indicate if it has documents, photographs, DNA, fingerprints, ballistic material, or confessions of the accused or co-accused, etc. Your attorney will meet with the prosecutor to observe and review all of these items prior to trial. The basic purpose of modern liberal discovery rules is to avoid surprises at trial. Each side must be fully aware of what lies ahead in order to properly assess their case and chances of success before trial begins.

If the State does not provide certain elements of discovery, your attorney will file a motion alleging a violation of discovery. The judge will have to determine if the violation was

(one) deliberate For the state;
(2) if it was a substantial violation; Y
(3) if it prevented adequate preparation for the Defense. In Florida, this is known as a Richardson hearing in Richardson v. State, 245 So.2d 771 (Fla. 1971).

This process will prevent the State from calling witnesses at trial who were previously undisclosed to the Defense.

Obtaining crime scene photographs

A picture is worth more than 1000 words! You’ve heard that old adage many times before. Selected photographs may better fix the image of the crime scene in the mind of the jury than lengthy explanations by attorneys and their witnesses. For example, the witness may say that he saw the defendant back out of the apartment door firing into the apartment where two victims were found shot to death. However, the photos clearly show that the victims had fallen face down with their heads toward the apartment door and away from the sliding glass doors at the rear of the apartment. Additionally, autopsy photos show that both were shot in the back. Here the photos are the best cross-examination of the “key witness” of the State.

The Defense would be wise to obtain color copies of all crime scene and other photographs well in advance of trial. It would be even smarter to send the Defense investigator to the scene to take more photos that can present a more accurate view of the geography of the crime scene.

Taking depositions from witness testimony

Today many states follow the federal rule that not allowed the taking of pretrial discovery statements in criminal cases. However, a preliminary evidentiary hearing is generally permitted in those jurisdictions. That gives the defense a pre-trial opportunity to cross-examine witnesses.

Florida currently allows discovery statements prior to trial. This is a useful tool. In states that still allow depositions, there is no excuse for the defense not to be fully prepared by the time the jury trial begins.

The attorney will likely tell the witness, “I was not present at the crime scene. All the information you have about this crime is in your mind and this statement is to allow the attorneys to get your information into our minds. That way you can better evaluate our respective case. This helps reassure the witness to open up and fully describe what they observed and know about the case. It also allows the attorney and witness to come to a common ground before the pressures of the trial set in. What the witness is not told is that the most effective cross-examination tool is the inconsistent prior statement. If the witness testifies differently at trial than at deposition, a skilled trial attorney will focus the jury’s attention on these inconsistencies. The attorney will be quick to point out that the witness may not be telling the truth in his testimony at trial. This can be devastating if he comes across cleverly.

Conducting an evidence review

Experience shows that very few defense attorneys conduct a evidence review. This review is a set time to go to the police evidence locker and open each package of crime scene evidence so it can be viewed and photographed prior to trial. If a lawyer does not do this, he will only see the evidence for the first time when the prosecutor introduces it into evidence. That’s too late. It is a failure to prepare adequately. could be the basis for a ineffective assistance claim later against that lawyer. How many trials could have been won or even avoided altogether if the attorney had done this evidence review with his investigator before announcing that he was “ready” for trial?

Work closely with the private investigator

From the discussion above, you can probably tell how critically important it is for the criminal defense attorney to hire and work closely with an experienced private investigator. If your attorney says he won’t need to hire an investigator on your case, get another attorney who will. Lawyers are highly educated in the law. They read, study, analyze and discuss topics with other lawyers and judges. However, they are not usually street savvy. A good private investigator is street smart. A lawyer probably won’t be running stakeouts in a bad neighborhood at 2:00 am and may not feel comfortable knocking on doors looking for leads on an unpopular case. Lawyers need experienced investigators, and investigators must work for an experienced attorney.

In short, the discovery stage of your case can be a good indicator of whether you will win at trial. It is essential that your attorney conduct this phase of your trial with attention to detail. If things look bleak after Discovery, you should have a candid conversation with your attorney and family about whether you might benefit from considering a plea deal rather than the high stakes of going to trial.

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