Every defendant in a criminal case has the right to a fair trial – and part of ensuring that fairness is making certain the defense has access to whatever evidence prosecutors intend to use.
In fact, the prosecution has an obligation to disclose certain evidence that could help the defendant’s case, even if it weakens its own – and generally without waiting for the defense to request it. This is called discovery.
What evidence must prosecutors disclose?
In general, prosecutors have to provide all relevant evidence, including that which tends to be exculpatory (clear the defendant of blame or mitigate their actions) or useful to impeach (undermine) the credibility of the state’s witnesses. Evidence that must be shared can include:
- Police reports: Reports, notes and other records relating to the investigation and alleged offense.
- Witness statements: Statements from witnesses, including statements that may contradict their expected testimony.
- Video and audio recordings: Body camera footage, surveillance videos, recorded interviews with the authorities and other relevant recordings.
- Physical and forensic evidence: Information about seized property, DNA testing, fingerprints, lab reports and other scientific evidence.
- Statements by the defendant: Relevant statements allegedly made to police or others.
- Witness credibility information: Certain criminal records, prior statements and other information that could be used to challenge a prosecution witness’s credibility.
- Expert evidence: Reports, qualifications and other required information concerning experts the prosecution intends to use.
What if evidence isn’t properly disclosed? Depending on the circumstances, the court may order additional disclosures, exclude evidence that would otherwise help the prosecution or even dismiss the case.
Reviewing discovery and the prosecution’s compliance with procedure – with the assistance of a skilled criminal defense attorney – is an important part of a defense, especially in complex criminal cases where conviction or acquittal can hinge on small details.