“Discovery” in a D.C. Superior Court Criminal Case

by Jamison Koehler on January 13, 2010

Courtroom surprises make for great drama on T.V. and in the movies.  The defense lawyer produces a new piece of evidence or the witness makes a startling admission on the witness stand.  The case is broken, and justice prevails.

Courtroom surprises in real-life are very rare.  The entire system is in fact geared toward eliminating such surprises.  The whole point of the rules of “discovery” – that is, the court-monitored process by which each side provides the other with particular type of information relating to the litigation prior to trial – is to assure that each side will NOT be surprised by anything that happens at trial.

In civil litigation, mutual discovery obligations are fulfilled through interrogatories (written questions submitted before trial), depositions (sworn testimony conducted before trial), requests for admission, and requests for production.

The rules are a little bit different for criminal trials.  Specifically, recognizing the due process rights of a person at risk of losing his/her liberty, the rules favor the defense.

According to the Brady doctrine, which arose out of the Supreme Court case of Brady v. Maryland, the prosecution has a duty to disclose to the defendant prior to trial all information and evidence that is favorable to the defendant’s case.  A failure to fulfill this duty can result in mistrial or a dismissal of the charges.  Alternatively, the court may preclude the prosecution from using at trial any such information or evidence that has not been turned over.  In egregious cases, the offender lawyer can be subjected to disciplinary proceedings.

The rules governing pretrial discovery in D.C. Superior Court largely mirror the federal rules.  The government is required to turn over:  (1) any statements by the defendant within the control of the government, (2) a copy of the defendant’s criminal record, (3) any documents or tangible objects which are either material to the case or which the government plans to use at trial, (4) any reports of examinations and tests, and (5) any written summaries of testimony by experts the government plans to call to the stand at trial.  The defense can also petition the court for additional discovery depending on the circumstances.

A defendant requesting discovery under the third, fourth and fifth categories described above can be required to provide reciprocal discovery with respect to those three categories.

There is a “continuing duty” to disclose any additional previously requested evidence or material that may come to light after initial discovery requirements are satisfied.  There is NO duty to disclose internal reports, opinions, observations, legal theories, or other forms of attorney work product.

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