Why The Discovery Process Is Central To Many Criminal Defenses

21 June 2023
 Categories: , Blog


When a criminal defense lawyer assesses a case, they often want to see what the government has on a client. In American law, the prosecution has to disclose both the evidence it has and the list of witnesses it might call if the case goes to trial. This is the discovery process, and it's central to many cases. Here is why it matters so much in the criminal legal system.


You and your criminal defense attorney have the right to access the evidence. If the state says it has surveillance footage of you involved in the alleged offense, you have the right to see the video. American law doesn't allow TV-style surprises because it undermines your right to a fair process.

Likewise, you have the right to know basic information about the state's handling of the evidence. For example, the police should be able to document the names of every cop and lab tech who handled anything that might show up at trial. If they tested materials from the crime scene, the state also has to document what equipment was involved and how the tests supposedly work. Your criminal defense lawyer can then check serial numbers for recalls and patterns of misuse. They also can talk with experts about what might be buggy with the laboratory techniques.

Constitutional Protections

Your right to a fair trial extends to everything in the discovery process. If the police claim they seized drugs from a defendant's car, they have to explain why they even had the right to look in the first place. A criminal defense attorney can raise objections to any evidence obtained through unlawful processes. If the cops didn't have the right to search, your lawyer will file a motion to exclude any subsequently found evidence.

Making Sense of the Prosecution's Plan

The discovery process also tells you something about the prosecution's plan for the case. Suppose the prosecution seems to be avoiding specific pieces of evidence or particular witnesses. A criminal defense attorney might want to dig deeper into what's wrong with that evidence or what those witnesses could say.

Perhaps the cops don't want to expose the identity of an informant, for example. Your attorney can then press the court to order the prosecutor to reveal who the informant is. The state sometimes is so committed to protecting a high-value informant that it'll drop charges to avoid doing so.