What is “discovery”?

Criminal defense attorneys, prosecutors, and judges use the term “discovery” often, but clients may not accurately understand the term.  “Discovery” means copies of police reports, witness statements, lab reports, photographs, etc., that comprise the evidence against the accused.  It seems like it would be common sense that the Constitution entitles a criminal defendant to receive full discovery of the case against him, but this is not the case.  Instead, discovery is a limited right created by statute.

In North Carolina state courts, discovery by the defense is governed by Section 15A-903 of the General Statutes.  If requested, the State must make available to the defense the complete files of all law enforcement agencies involved in the case.  This includes copies of the defendant’s own statements and those of any codefendants, witness statements, police officer reports, reports of tests and examinations, and inspection of any physical evidence.  To secure the right to receive this discovery, the defendant’s attorney must submit a written request for voluntary discovery to the State.

In the federal courts of North Carolina, discovery by the defense is governed by Rule 16 of the Federal Rules of Criminal Procedure.  Rule 16 entitles the defense to receive, upon request, copies of the defendant’s oral statements, written statements, and his prior criminal record.  Additionally, upon defense request, the government must make available copies of documents and other evidentiary items in the government’s possession if they are material to preparation of the defense, the government intends to use them in its case-in-chief at trial, or they were obtained from or belong to the defendant.  Finally, upon request, the government must provide the defense with copies of results or reports of any physical or mental examinations and of any scientific tests but only if such items are material to preparing the defense or the government intends to use the items in its case-in-chief at trial.

Rule 16 contains no provision requiring the government to disclose statements of ordinary witnesses (although notice of expert witnesses is required).  However, it is the common practice in the Western District of North Carolina for the U.S. Attorney’s Office to provide “open file” discovery, allowing defense access to most everything the government obtained in the investigation, including reports of witnesses.  However, while the defense attorney can show the client the discovery for his or her review, local rules prohibit the attorney from giving any copies to the defendant to retain.

Beyond statutory discovery obligations, prosecutors are also required by the U.S. Supreme Court case of Brady v. Maryland to disclose any exculpatory evidence, i.e., evidence tending to show the defendant’s innocence or to mitigate his punishment.  Finally, prosecutors are also required by Giglio v. United States to disclose evidence that would tend to impeach a prosecution witness.

Discovery is the heart of a criminal case and is the primary focus of a criminal defense attorney’s work.  The first task in providing effective assistance of counsel to a person charged with a crime is to thoroughly review the discovery provided by the prosecution to determine the strength of the prosecution’s case and to advise the client of his or her options.

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