Uncovering the Evidence
Video Transcript: What is discovery in a criminal case, and how is it done? My name is Brian L. Jackson. I’m an Oklahoma lawyer with Wirth Law Office. Today I want to talk to you guys about discovery in criminal cases.
What is it, and how is it done? What discovery is, is basically the process by which attorneys exchange evidence in a case.
Now, in the criminal context, the exchange would be between the district attorney’s office, whoever, whichever prosecutor has the case, and then whatever lawyer is defending the defendant. Now, what happens in criminal cases in Tulsa County basically is that your attorney will file a motion for discovery, and it covers a broad scope of evidence because there’s certain types of evidence that have to be presented in a criminal case that may or may not be discoverable as easily in a civil case. For example, like if you have a cop who has a history of dishonesty and misconduct, that is discoverable in criminal context under Brady versus Maryland and under the Giglio case. If there is exculpatory evidence in the possession, and what exculpatory evidence is, is basically evidence that tends to prove that you’re not guilty of the crime or tends to call into question whether or not you’re guilty or the veracity of any evidence.
In other words, whether that evidence or testimony is believable or not, the prosecution’s required to turn it over. So a motion will be filed and it’ll ask for, basically what that motion’s doing is saying, okay, state open your books. Let’s see what you have. And by the way, if you have anything that tends to show that the defendant might not have done what you accused them of, you have turned that over too.
If you have anything that tends to undermine the credibility of your evidence or any of your witnesses you have to turn that over too. So the motion’s filed, and then the state usually gets approximately 30 days to respond. Usually they’re pretty fast about that because they have a pretty well oiled machine for producing discovery.
Occasionally you get longer delays, if there are things like body cam video that need to be recovered, or like lab results that don’t always get produced right away. The state’s usually pretty Johnny on the spot with that though, because if they don’t comply with discovery, it comes with pretty serious consequences to their case.
One of the biggest ones being the potential for dismissal. You don’t comply with discovery, you’re usually talking about some kind of a constitutional violation under both state and federal constitution. And the usual end result of that is evidence will be excluded, and the case could very well be outright dismissed. So they have every incentive to comply with discovery.
It’s valuable to you and your attorney because this is how decisions are made. This is how you figure out how bad the damage is, how likely it is that you might be convicted if you were going to go to trial. And it gives the attorney a chance to see if the procedure was followed correctly or not. That’s how you develop defense.
Typically, discovery is sought out immediately after arraignment, and then you have a discovery hearing called an Allen hearing where the state basically has to go in and tell the court, all our evidence is on the table. We’ve given over everything we have. You have what we have. And they do that on the record as officers of the court. And then if something should surface later that they had and didn’t give you or that they should have known about and didn’t tell you about, didn’t seek out, et cetera, then again, it could be grounds for excluding evidence, it could be grounds for dismissal.
So that’s what discovery is and that’s why it’s important. And this is another example of why you need a good lawyer if you’re in criminal court and one place you can find a good Tulsa criminal defense attorney is at makelaweasy.com.
