Discovery: What and When the Prosecution Must Disclose

Posted by Chris Morales on Wed, May 10, 2017 @ 03:21 PM

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Tags: Criminal Charges, criminal defense attorney, San Francisco Criminal Attorney, criminal cases, discovery, San Francisco Criminal

Investigating a Criminal Case: Experts, Investigators, and Subpoenas

Posted by Chris Morales on Fri, Jul 31, 2015 @ 09:00 AM

Preparing for trial shouldn’t involve simply reviewing discovery. Rather, the defense should use various investigative means to present the best possible case.

Interviewing prosecution witnesses can be a critical component of preparing a defense in a criminal case. But there are other forms of investigation that might also provide or reveal essential information. The defense might:

  • Bring in a scientific expert to test evidence or review the work of others, including, for example, police laboratory technicians. It’s often beneficial for such an expert to testify, too.
  • Hire a private investigator to locate and interview witnesses who are—or could be—helpful to the defense. The defense attorney might then be able to meet with those witnesses and prepare them for their eventual testimony. The defense can also serve them with subpoenas that require them to appear in court to testify.
  • Take depositions of friendly or neutral witnesses—in the rare states that allow depositions in criminal cases. These depositions can serve several purposes, including preserving testimony should witnesses later become unavailable or change their stories.

Costs and Benefits

Whether to incur the costs associated with investigative tasks is a judgment for each defendant to make. The defendant should try to determine the likely costs, the chances the tasks will help the case, and the cost (literal and figurative) of conviction. In most instances, it makes sense to do anything within the rules to help your chances at trial. Even if a conviction doesn’t carry jail time or a significant fine, it usually has long-lasting ramifications—for example, making finding a job more difficult.

Hunting and Gathering

Defense attorneys must often pry documents loose from government agencies and private businesses. Those who need to obtain relevant materials from uncooperative people or offices can serve them with subpoenas duces tecum. This term refers to a court order requiring the person or organization in question to deliver the specified documents, records, or objects to court for the judge, defense, or both to inspect.

Subpoenas duces tecum don’t always work the first go round. Some parties who receive them file motions to “quash,” while others simply ignore the subpoenas. In these instances, the defense typically has to file a pleading asking the judge to order the third party to comply with the subpoena. This often means persuading the court that the requested materials are important to the defense’s case or narrowing the information requested in the subpoena. For example, a defense attorney requesting cellphone records of a witness might have to explain that the records could show that the witness was on the phone at the time she claims she was meeting with the defendant. If the phone company objects that the defense has requested too much material, the attorney might have to narrow the timeframe for the requested records.

Others Who Can Help

Plenty of professionals other than lawyers, experts, and investigators can be vital to criminal cases, including but not limited to:

  • photographers (who can document, for example, the scene of the crime)
  • jury consultants (who help the defense attorney pick the jury)
  • trial presentation specialists (who help the defense display information at trial, usually through use of computers), and
  • sentencing experts (oftentimes former probation officers who help the defense present a convincing case for a lenient—or at least reasonable—sentence).

Get a Lawyer

If you’re facing criminal charges, consult an experienced criminal defense lawyer. Only such a lawyer can protect your rights and effectively investigate your case. An attorney will also be able to tell you what you should—and shouldn’t—do to help. For example, your lawyer may ask you to provide all the information you can possibly think of regarding witnesses, locations, events, and even people who have nice things to say about you.

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Tags: Criminal Charges, subpoenas, trial, Investigation, witnesses, discovery, criminal defense lawyer

Discovery: What and When the Prosecution Must Disclose

Posted by Chris Morales on Fri, Jul 10, 2015 @ 12:00 PM

Discovery—the information about the other side’s case—is supposed to promote fair trials and case settlement. Learn how it works.

Discovery is the process through which defendants find out about the prosecution’s case. For example, through standard discovery procedure, they can:

  • get copies of the arresting officers’ reports and statements made by prosecution witnesses, and
  • examine evidence that the prosecution proposes to introduce at trial.

Traditionally, the prosecutor wasn’t entitled to information about a defendant’s case. But in recent years, discovery has become more of a two-way street. Just as defendants can discover information from prosecutors, so too can prosecutors examine certain evidence in the hands of defendants.

Modern Discovery Policy

Pretrial disclosure of information through discovery can foster settlement and enhance the fairness of trials.

Can prosecutors spring evidence on defendants like they do on TV?

No. In the past, prosecutors could guard evidence from defendants with the same fervor toddlers show in protecting toy trucks and dolls from their siblings. Defendants couldn’t force prosecutors to hand over witness statements or even reveal the names of their witnesses. Now the view that advance disclosure will promote fairer trials has taken hold—if defense attorneys know ahead of time what to expect, they can better defend their clients.

Surprise evidence may produce fine drama, but it leads to poor justice. Unlike prosecutors, defendants can’t call on police agencies to help them investigate and respond to evidence they find out about for the first time at trial. Thus, every jurisdiction (each state and the federal government) has discovery rules requiring prosecutors to disclose evidence to defendants prior to trial.

Are discovery rules really intended to help defendants at trial?  

Not exclusively. Sure, advance disclosure promotes fairer trial outcomes, but it also promotes case settlement, which saves judicial time and resources. If a guilty defendant finds out before trial that the prosecution has a particularly strong case, that defendant will be more likely to plead guilty and save the government the hassle of trying the case. Discovery is likely a significant reason why at least 90% of criminal cases settle before trial.

Issues regarding settlement aside, discovery is intended to help defendants in the sense that prosecutors must hand over certaininformation that's helpful to the defense.

Does discovery mean that the prosecution has to reveal its case strategy?

No. Discovery rules generally distinguish between raw information like names of witnesses, police reports, and drug or alcohol test results, and attorney theories and strategies. The latter is called “work product.” Prosecutors don’t have to turn over their work product to defendants—otherwise, it just wouldn’t be fair. Lawyers would be incentivized to hide their work or do less of it

Is there a particular period of time prior to trial when the defense is supposed to engage in discovery?

Not really. Prosecutors can’t disclose all discovery on the eve of trial, but on the other hand, they don’t have to divulge it all way ahead of time. Discovery can unfold gradually. For example, a defendant’s attorney might receive a copy of the police report at the first court appearance, but might not receive a prosecution expert’s written analysis of blood evidence until shortly before trial.

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Tags: defendant, evidence, police office, discovery, prosecution, lawyer

Discovery: What and When the Prosecution Must Disclose

Posted by Chris Morales on Fri, May 01, 2015 @ 06:40 AM

Discovery—the information about the other side’s case—is supposed to promote fair trials and case settlement. Learn how it works.

Discovery is the process through which defendants find out about the prosecution’s case. For example, through standard discovery procedure, they can:

  • get copies of the arresting officers’ reports and statements made by prosecution witnesses, and
  • examine evidence that the prosecution proposes to introduce at trial.

Traditionally, the prosecutor wasn’t entitled to information about a defendant’s case. But in recent years, discovery has become more of a two-way street. Just as defendants can discover information from prosecutors, so too can prosecutors examine certain evidence in the hands of defendants.

Modern Discovery Policy

Pretrial disclosure of information through discovery can foster settlement and enhance the fairness of trials.

Can prosecutors spring evidence on defendants like they do on TV?

No. In the past, prosecutors could guard evidence from defendants with the same fervor toddlers show in protecting toy trucks and dolls from their siblings. Defendants couldn’t force prosecutors to hand over witness statements or even reveal the names of their witnesses. Now the view that advance disclosure will promote fairer trials has taken hold—if defense attorneys know ahead of time what to expect, they can better defend their clients.

Surprise evidence may produce fine drama, but it leads to poor justice. Unlike prosecutors, defendants can’t call on police agencies to help them investigate and respond to evidence they find out about for the first time at trial. Thus, every jurisdiction (each state and the federal government) has discovery rules requiring prosecutors to disclose evidence to defendants prior to trial.

Are discovery rules really intended to help defendants at trial?  

Not exclusively. Sure, advance disclosure promotes fairer trial outcomes, but it also promotes case settlement, which saves judicial time and resources. If a guilty defendant finds out before trial that the prosecution has a particularly strong case, that defendant will be more likely to plead guilty and save the government the hassle of trying the case. Discovery is likely a significant reason why at least 90% of criminal cases settle before trial.

Issues regarding settlement aside, discovery is intended to help defendants in the sense that prosecutors must hand over certaininformation that's helpful to the defense.

Does discovery mean that the prosecution has to reveal its case strategy?

No. Discovery rules generally distinguish between raw information like names of witnesses, police reports, and drug or alcohol test results, and attorney theories and strategies. The latter is called “work product.” Prosecutors don’t have to turn over their work product to defendants—otherwise, it just wouldn’t be fair. Lawyers would be incentivized to hide their work or do less of it

Is there a particular period of time prior to trial when the defense is supposed to engage in discovery?

Not really. Prosecutors can’t disclose all discovery on the eve of trial, but on the other hand, they don’t have to divulge it all way ahead of time. Discovery can unfold gradually. For example, a defendant’s attorney might receive a copy of the police report at the first court appearance, but might not receive a prosecution expert’s written analysis of blood evidence until shortly before trial.

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Tags: criminal defense attorney, case, defendants, prosecutors, evidence, criminal case, discovery

The Impact of Social Media and Cell Phones on Civil Discovery

Posted by Chris Morales on Wed, Jan 21, 2015 @ 12:00 PM

The Impact of Social Media and Cell Phones on Civil Discovery: Pitfalls and possibilities

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Tags: violation, discovery, social media