An Overview of the Discovery Stage of a Criminal Trial

The discovery period of any trial is essentially a time to prepare. Discovery is when all information and evidence is made available to each party in order to prepare for trial. It will include things like:

  • Official reports, toxicology reports, DNA reports, police reports and written or oral testimony.
  • Any crime scene evidence such as forensic evidence and photographs taken at the scene.
  • Any expert witness testimony that is planned to be used in court.
  • Any/all testimonies from witnesses, law enforcement or defendants along with their personal details such as names and addresses.
  • Any other “raw” evidence obtained (this is evidence presented “as is”).

ALL evidence that both parties have MUST be disclosed during the discovery stage. If it can be proven that exculpatory evidence was withheld during this period which could have established a defendant’s innocence, it could lead to an overturned conviction upon appeal. Exculpatory evidence is any evidence that could cause doubt regarding a defendant’s guilt. Unlike the prosecutor’s, certain evidence could successfully be withheld or restricted by the defendant’s legal team in terms of his/her Fifth Amendment rights. But, as mentioned before, withholding or not disclosing certain information is tricky, and you need an experienced criminal lawyer making these calls.

Whilst the handing over of all evidence is compulsory, none of the parties have to disclose their strategy and how they are planning to use the evidence. Evidence is not only handed over purely from a preparation and fairness angle; it can also force a plea bargain and save everyone the burden of a lengthy and drawn out trial.

There are many methods of exchanging information during the discovery period:

Deposition
This is an out-of-court statement given under oath by anyone involved in the case. It can be in the form of a written transcript, video, or both. During oral depositions, both sides have the right to be present. This gives both parties an idea of what a witness could say during trial. Strategically, it can be used to discredit certain witnesses and statements if the deposition and the testimony given don’t match up. Depositions consist of an oral examination from that party’s lawyer and is then followed by cross-examination from the other party’s lawyer.

Interrogatories
These are written questions submitted to a party that must be answered under oath. There is usually a certain time period/deadline attached to interrogatories by which these answers must be received.

Subpoenas
One party can subpoena the other party with a written court order forcing certain individuals to testify, produce certain evidence, undergo a physical examination, or even have documentation verified by an expert.

Although the discovery laws vary from state to state and between federal and state courts, the process is still the same. This is probably the most important period of any criminal case, and you need someone who understands the Nebraska criminal legal process in order to truly take advantage of all the opportunities the discovery period offers. Contact Inkelaar Law at 1-877-537-4665 today!

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Written by Inkelaar Law