Discovery: What a Prosecutor Must Disclose and When

While popular legal TV programs may have portrayed defense attorneys being caught flatfooted in court when a prosecutor drops an evidentiary bombshell, this is rarely the case in real life. That is because of a legal process known as discovery, where the prosecution is required to turn over any evidence favorable to the defense to defense counsel prior to trial.

Courts have come to recognize that the disclosure of evidence against a defendant serves the cause of justice better than “gotcha” moments in court. By receiving this evidence in advance, defense attorneys can better defend their clients. And since defense attorneys do not have access to the same resources as the state — i.e., law enforcement agencies to conduct investigations — discovery rules promote fairer trials.

In recent years, discovery has become more of a two-way street, allowing the prosecution access to certain evidence in the possession of the defense. The types of information typically exchanged during discovery include names of witnesses, police reports, drugs or alcohol reports and other hard evidence.

However, discovery does not include what is known as “work product” — the strategies and theories that prosecutors or defense counsel will use to prosecute or defend a case.

The use of discovery in criminal trials is a likely reason that at least 90% of criminal cases are settled before trial. Once evidence has been exchanged, one side usually determines that a plea bargain will provide the best outcome for the accused.

Typically, discovery occurs well enough in advance of trial to enable both sides to deal properly with the evidence provided. However, it can also unfold gradually — i.e., an arrest report is provided at the first court hearing, followed by other pertinent evidence.

If a prosecutor fails to turn over evidence that could have exonerated a defendant, and that defendant is found guilty, an appeals court can overturn the conviction. However, since prosecutors are immune from personal liability, a wrongly convicted defendant cannot sue him or her in a civil court.

The Cogdell Law Firm is a full service criminal litigation and appellate law firm. We provide client-focused representation at all stages of the process, whether our clients are seeking to avoid charges, have been charged, or are seeking reversal of a conviction on appeal. When results matter most, contact Dan Cogdell at (713) 426-2244 or