Discovering Evidence in Criminal Cases

The Prosecutor’s evidence in criminal cases determines how strong the case is. Discovery of evidence in criminal cases is essential to a successful criminal defense strategy. “Discovery” is the stage where your Defense Attorney submits a written demand to inspect the evidence and get copies of all reports. If the Prosecutor refuses to comply with the Discovery Demand, the Court may issue an Order Compelling Discovery, which directs the Prosecutor to release the evidence in criminal cases you are involved in.

“Discovery” in criminal defense means having access to all the evidence involved in your case. Not just the police report, but all test results, samples, photographs, recordings witness statements, and other items that are part of the criminal investigation. Discovery means that the Prosecutor must show criminal defense attorneys all information that is remotely related to the case.

From a practical standpoint, discovery forces the Prosecutor to show his “poker hand”. For example, the Police report might claim there was an ounce of marijuana seized during an undercover drug sale. Your right to discovery gives you the chance to see the marijuana, weigh it, and independently test it before trial. If the Police cannot produce marijuana for viewing, then the case is likely to be dismissed.

An example of a discovery request for evidence in criminal cases would request the following evidence:

a. the telephone record of the phone number used to call the Defendant during the course of the investigation,
b. all audio recordings of the telephone calls involving the Detective making arrangements for the controlled purchase.
c. the “audio recording of the controlled purchase”.
d. Police notes made by surveillance officers
e. Police notes, reports and recordings made by “under-cover” Detectives.
f. copies of the “Pre-recorded buy funds – one page”.
g. chain-of-evidence documents for the marijuana tested in MSP Lab Report No. GL11-13
h. police reports and witness statements concerning the MRE 404(b) acts, and any other incidents the prosecution intends to offer as evidence at trial
i. criminal records of civilian and police witnesses

If the Prosecution in this drug case fails to disclose any evidence, the result may be an exclusion of the evidence from the trial or dismissal of the charges.

The development of discovery law since 1963, with the landmark Brady decision, means that criminal defendants get to inspect and know the evidence in criminal cases before they go to trial. Criminal defense attorneys must be given all the evidence before trial so they, along with their client, may prepare to meet it. Thus, not only is the Fifth Amendment right to a fair trial rooted in discovery procedure, but the defendant’s Sixth Amendment right to confront the witnesses against him or her is also implicated.

ABOUT THE AUTHOR: Patrick S. Fragel

Patrick S. Fragel, Criminal Defense, Former Prosecutor since 1994. After law school, he assumed a full-time prosecutor position where he handled cases involving drug offenses, drunk driving, serious assaults, and embezzlement. During his 18 years of private practice, he has obtained several “not-guilty” verdicts in criminal trials throughout Western Michigan. His business law practice includes 20 years in commercial transactions and business formation.

After earning his B.A. from Michigan State University, he enlisted in the U.S. Army, Infantry and climbed the ranks to Captain. His graduate work focused on organizational goal setting and culminated in an MPA from Northern Michigan University. While at NMU he performed outcomes assessment while working for the Department of Institutional Research.