Criminal discovery is the process by which a criminal defendant can get information about their case held by the prosecutor.  The process of "discovering" the information is sometimes referred to as "disclosure."  Each state can have its own criminal discovery procedure, but it must comply with Constitutional laws.  As such, most states model their criminal discovery procedures after the Federal Rule of Criminal Procedure 16.

What Things Can be Discovered?

Generally, if the prosecution intends to use any of the following at trial, a defendant has the right to copy, photograph, or inspect information pertaining to them.  Information that is subject to criminal discovery includes:

  • Any oral statements made by the defendant before of after arrest, for example in an interrogation by a law enforcement officer,
  • Written or recorded statements of the defendant,
  • Any prior criminal records the defendant might have,
  • Documents, data, photographs, tangible objects, buildings, or places the prosecution plans on using in its case,
  • Personnel files of the police involved in the case,
  • Reports or test results, and
  • Summary of any expert witness' testimony,

It might seem like a criminal defendant has access to all of the prosecution's evidence.  This is not exactly true.  Generally speaking, in order to discover any of the information above, the information must also be:

  1. Material to preparing any criminal defense,
  2. The prosecution plans to use the information in its case-in-chief at trial, and
  3. The government or prosecution has possession, custody, or control over the information.

Generally, the reverse is true for the prosecution.  That is, if a criminal defendant requests disclosure of any of the information, the government must be allowed to inspect, copy, or photograph any of the information.  Additionally, a criminal defendant must give the prosecution a written summary of any expert witness testimony that they intend to use in their defense at trial.

What Things Cannot be Discovered?

Generally speaking, a criminal defendant does not have the ability to inspect, copy, or photograph information if it is in:

  • An internal government document between an attorney for the government and another government agent, or
  • A transcript of a grand jury.

The reverse is true as well.  The prosecution cannot inspect, copy, or photograph any information of the criminal defendant if it is in:

  • Reports, memorandums, or documents between the criminal defendant and their attorney, or
  • Statements made between the criminal defendant and their attorney.

Do I Need an Attorney to Handle my Criminal Discovery?

If you are a criminal defendant, and are trying to gain access to certain information held by the prosecution, it is highly recommended for you to contact a criminal defense attorney because such information could be critical to your defense.  Only an attorney will be able to adequately explain the issues, guide you through the process, and help in your defense.