What Happens During the Discovery Phase of a Criminal Case?

Discovery is the process that allows the Defendant to review and exchange evidence with the Prosecutor.

Both sides are required to provide a list of potential witnesses, specific information regarding expert witness, a list of tangible objects that will be used at trial and a list of video, audio recordings, and written evidence that may be used in trial.

In short, no documentation, video, audio recording, or witness may be used at trial unless it was previously disclosed.

Practically speaking, the Defendant will most often be asking for more discovery information from the State.

The reason for this is simple, the State carries the burden of proof. The State’s witnesses, law enforcement officers, have gathered and collected evidence that leads to the charge.

In order to defend themselves, Defendant’s need to see that information.

When is discovery required?

In misdemeanor cases the State is required to make initial disclosure at the first pre-trial conference. In felony cases the State must make initial disclosure available by the preliminary hearing, if no preliminary hearing is held then by the arraignment.

What is disclosed?

Initial disclosure consists of relevant police reports, witness lists, prior conviction information, evidence that tends to disprove the State’s case, search warrant information, expert witness information, and more.

Initial disclosure merely initiates the discovery process. The adversarial nature of criminal law means that the State will not willingly provide everything they have right away.

Instead the State will provide the bare minimum required by the rules. It is important that the Defendant make additional discovery requests as needed.

Witness lists, lists of audio or videos, lists of written material will come in the form of piece of paper. The Prosecutor will list all the material they believe they need to prove their case.

Police reports are usually provided in their entirety and not in list form. The most common and recognizable portion being a narrative section, the written explanation of what the officer observed, and learned from witnesses while investigating.

However, disclosure of one police report and narrative may not be the only police report in the case. Prosecutors rely on officers to provide police reports for initial disclosure.

Often the lead officer will only provide their report and narrative. Other officers who participated in the investigation should have written their own reports.

If those are not provided in initial disclosure a written request must be provided to the Prosecutor for the missing reports.

Any information that is within the possession and control of the police officers legally determined to be within the possession and control of the Prosecutor.

What if I want more information?

Additional requests to the prosecutor for material and information that is missing or contained in lists is called a supplemental request.

The rules of criminal procedure dictate that supplemental discovery requests must be answered within 30 days of the date of request.

If the State fails to respond or does not provide the requested discovery the Defendant or the Attorney has the option to file a motion with the Court asking a judge to order the State to provide the requested information.

In some cases the Defendant or their Attorney can ask for sanctions against the State for failing to disclose material. Sanctions can include dismissal, a continuance, preclusion of the material, or any other remedy the Court finds appropriate.

However, the Court must chose the least onerous sanction given the nature of the discovery violation.

Likewise, police reports can contain information that leads to further disclosure that the Prosecutor may not realize exists in their case.

Carefully reading and reviewing the police report may lead to additional information that will be helpful for your case. Discovering the inverse is true as well.

When information is discovered in a police report that may not be helpful to a case it might be best to leave that information incomplete by not asking for additional material.

Knowing when to request discovery and when to strategically wait for discovery is an important aspect of the discovery process.

The State’s burden to prove a Defendant guilty means that the State itself has the burden to make sure they have disclosed all material they will need to prove their case.

The State has a duty to disclose witnesses, evidence, and material throughout the case, this is known as a duty of ongoing disclosure. Final disclosure must be made at least 7 days before trial.

If the State or the Defense needs to provide disclosure after the final deadline a motion must be filed with the court requesting permission to make late disclosure.

That motion must contain a supporting affidavit justifying the disclosure. If the justification is not adequately provided disclosure should be denied and the evidence precluded.

Do I get to conduct interviews?

The discovery process also allows the Defendant or their attorney to interview witnesses that the State will use at trial, including police officers. Any witness who is material to the criminal charge may be interviewed, except for victims of a crime.

A victim of a crime is given special rights in Arizona and although they may consent to an interview, they are not required to provide an interview like other witnesses.

If a witness refuses to provide an interview the Defendant or their attorney may ask the Court to order a deposition. If the witness fails to appear at the deposition then the Court may choose to prevent the witness from testifying, thereby damaging the State’s case.

Officer interviews can be a daunting task. A police officer is a professional witness.

Think about it, part of a police officer’s job is to testify in court. Their testimony must be believable, understandable, and is designed to get a conviction in the case.

The officer will attempt to downplay facts and information that will be beneficial to the Defendant and will spend lots of time describing facts and information that will support the State’s case.

The officer’s testimony begins at the interview. During the interview the Defendant has the opportunity to ask open ended questions.

Questions designed to make the officer explain why he or she did something. Why they chose to believe one person over the other, or why they chose to interpret information a certain way.

Asking open ended questions can lead to valuable information to be used in your defense. Likewise, asking why an officer made a decision can reveal ingrained biases that the officer may have that can be useful in the courtroom.

What if the State does not provide me with what I want?

If the State refuses to provide you with information you can ask the Court to order the State to provide it to you.

The information you request must be relevant and necessary for the case, and you have to have a substantial need for the information in order to defend yourself.

You cannot request information from the State that you can obtain easily yourself.

If the judge does not order the state to provide you with information and the material is within the control of a government agency you may make a public records request for the material.

Public records requests are only applicable to information in the Government’s control and are conducted outside the process of the criminal court.

Public records request can be used to obtain discipline information about the officer involved in the case, video evidence, GPS data, and much more.

Can I use a subpoena to get information?

The prosecutor can only provide information that they have in their possession and control.

If you want to obtain evidence from a business or third party you will need to use a Subpoena. A subpoena is a court order issued to an individual or business requiring them to provide specific documentation or material. You must provide your own subpoena to the Court.

It is rare that judges will deny a subpoena. However, the request must be reasonable and narrowly tailored to what you need. Judges guard against fishing expeditions.

Once you obtain a subpoena you will have to pay to have that subpoena served by a process server on the business or individual who has the information.

If the subject of the subpoena does not cooperate the Court can order that person to appear and explain why the disobeyed a court order. This could lead to additional legal consequences for the individual.

The use of a subpoena is a valuable tool. However, the abuse of subpoena requests will be immediately addressed by the Court. Use subpoenas to make uncooperative third parties, like businesses, provide you with videos, receipts or other information that will tend to disprove your guilt.

Not all States have the same rules for discovery. Arizona happens to be fairly open with their discovery process. This is helpful for most cases.

If you hire an attorney who has the knowledge and tools to extract information about the case from the discovery process it can open doors to more lenient plea agreements and possibly trial defenses or a dismissal of your case.