By: Frances Prizzia | Criminal & DUI Defense

It has been a few months since my last entry in this series, detailing the anatomy of a criminal case. In case, you missed the previous entries, you can find them here:

Today, I will be discussing the process of discovery and investigation.

Discovery, is the process of “discovering” what cards the opposition is holding. Generally, in a criminal case in California, that the prosecution will provide the defense with the police reports written during the investigation. This is the first time the defense is able to really get a sense of what work the government has done leading up to the filing of criminal charges and to assess the strength of the government’s case.

Often, there is additional discovery outside of the initial police reports. For example, dash and body worn camera footage from arresting officer’s is increasingly common. Additionally, after the defense attorney reviews the initial discovery, they may decide that things like the 911 recordings, recordings of witness interviews, criminal backgrounds of witnesses, surveillance footage, or other items of discovery are necessary to their assessment and preparation of the case. These items are generally not provided without the request from the defense attorney.

In California, discovery is governed by Penal Code 1054 which provides for an informal system of discovery in which the courts hope the lawyers can work out discovery issues amongst themselves. When an attorney believes they are entitled to additional discovery from the other side, they are required, initially, to make an informal request to the opposing lawyer. That is often sufficient and the other party will often provide it without any fuss.

When that is not the case, for example if the item in question is controversial, the prosecution doesn’t agree that the item is subject to discovery or when either the prosecution or police agency is dragging its feet, the attorney then files a formal motion for discovery with the court. If the court agrees that the item is subject to discovery, they will then order the other side to provide the item in a set time frame.  Failure to comply with such an order can lead to sanctions for the attorney not in compliance.

It is important to know that discovery is an ongoing obligation. Often, the government will continue its investigation even after a case is filed. The prosecution is obligated to provide the names and statements of any witnesses they intend to call at trial. They are also obligated to provide all exculpatory evidence, which means evidence that points to the innocence of the defendant. As such, prosecutors will generally provide all witness statements, even those of people they do not intend to call at trial.

The defense also has discovery obligations, though they are less broad than the prosecution’s obligations. The defense must disclose witnesses and witness statements for the people they intend to call at trial, however this obligation is not triggered until they have made the decision to call someone at trial. Often, if a witness appears in a police report, the defense’s intent to call that witness cannot be determined until they receive a prosecution witness list for trial. If a person appears on a prosecution witness list, the defense would then not have an intent to call that person until and/or if the prosecution rests its case without calling that witness. Importantly, the defense is not required to provide witness statements that it intends to use to impeach (attack the credibility of) a prosecution witness until and/or if they use that statement against the witness. As such, it is far easier for the defense to disguise their trial strategy and this is often the best practice. The exception to this is if you are attempting settlement and providing discovery to the prosecution may cause them to re-assess the strength of their case and potentially make a better offer.

Once the defense attorney has received and analyzed the discovery from the prosecution, it is now in a place to decide what investigation will be necessary to the preparation of the case. This can include re-interviewing prosecution witnesses to check for inconsistencies in their stories, interviewing witnesses the prosecution failed to interview or did not know about, seeking out surveillance footage that was not collected by the police, re-testing forensic evidence, and finding witnesses who can discredit prosecution witnesses or speak to the good character of the defendant. Each case is unique and this list is not exhaustive. The bottom line is that once the defense is able to get a look at the prosecution’s case it is able to determine how the prosecution intends to prove its case beyond a reasonable doubt. Investigation will generally be aimed at undermining the prosecution’s ability to do so and finding where the reasonable doubt exists. When that is not possible, investigation can also be useful to provide the prosecution with mitigation, things that put into perspective the seriousness of the allegations or the character of the defendant, with the goal of improving the prosecution’s offer for settlement.

The next entry in this series will focus on the nuts and bolts settlement negotiations and plea bargaining. After that, I will devote an entry to some of the common types of pre-trial motion work before turning our attention to the ins and outs of the actual trial.

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