Discovery, or the process of gaining access to the prosecution's evidence, is an essential part of the case. Likewise, the prosecution can obtain information from the defense in the same way. Discovery takes place throughout the entire pre-trial process. As long as both sides comply with the requests for discovery, this process is very informal. However, if at any time either side feels as though the other is not abiding by the rules and providing the information requested, they can then request that the court take over. Below are some of the requirements for discovery.
•Supplying both sides with witness information, i.e. names, statements and/or reports
•Supplying both sides with physical evidence, photographs and forensic evidence
•The prosecution supplying the defense with “exculpatory” evidence (evidence that is favorable to the defense)
•The prosecution supplying the defense with information of any felony convictions that any witness may have, therefore possibly impeaching their credibility
•The prosecution supplying the defense with any other relevant information to the case, i.e. written or recorded statements
Discovery motions are very important and it is critical that you hire an attorney who has immense knowledge in this process. A skilled attorney will ensure that all information critical to winning your case is received during this time. Be advised, also, that if you do not strictly adhere to the requirement of discovery, the court may impose sanctions for noncompliance. A great attorney will not get involved in litigation unless they are prepared to perform the appropriate investigations for discovery. It was once said, “Don't ask a witness a question for which you don't already know the answer.” How does your attorney already know the answer? Through investigation and discovery.
Your attorney will know in advance of trial who will be testifying, what they will testify to and what documents and other tangible or intangible evidence will be produced.
Example of a Common Discovery Motion
Motion to Compel Discovery
PC 1054.7 states that discovery should be made at least thirty (30) days prior to trial. However, if an informal request is sent earlier than that, it must be responded to within fifteen (15) days. If discovery is not complied with within that amount of time, your attorney will file a Motion to Compel Discovery, essentially requesting that the judge order a specific amount of time for other side to comply with the request. Your attorney at that time will ask for either:
•A continuance of the trial date
•Sanctions for failure to disclose information
An objection to the motion may also be filed by the other side, at which time the judge will decide if the motion will be granted or not, depending upon the information provided in the objection.
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