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Discovery – What Is It and How Does It Work?

February 14, 2018

Fred Thiagarajah

Discovery is the legal name for all evidence that both sides need to disclose to each other in a legal case.  In civil and family cases, both sides have a duty to disclose evidence to each other, but in criminal cases, the prosecution is first required to provide discovery to the defense.  Although there are rules that govern when the defense is required to provide discovery to the prosecution, most criminal cases only involve discovery flowing from the prosecution to the defense.  For example, in most criminal cases, the initial discovery that is to be provided is the police report.  The prosecution is required to provide the police report to the defendant’s attorney.  Then the defense may request additional discovery, such as audio recordings, video recordings, dispatch calls, 911 calls, pictures, blood or DNA results, etc.  After the defense requests this discovery, the prosecution usually provides it although sometimes delays occur.  When a prosecutor refuses to provide discovery to a defense attorney, the attorney can file a motion to compel.  Such motions are rare because in most cases, all applicable discovery is turned over by the prosecution.

Penal Code section 1054 through 1054.10 govern the rules of criminal discovery between the prosecution and defense.  Sometimes a defense attorney will voluntarily provide discovery to the prosecution because it may be helpful in reaching a plea bargain but in trials, the defense is required to provide discovery at least 30 days prior to the trial, pursuant to Penal Code section 1054.3 and 1054.7.

When the prosecution provides discovery to the defense, the discovery is given to the defense attorney, not the defendant.  That’s because it’s illegal for a defendant to have the phone number and address of a victim or witness, pursuant to Penal Code section 1054.2.  When the discovery is provided to the defense attorney, the attorney must black out that information in the reports before providing it to the defendant or the defendant’s family.

All criminal cases depend on discovery and a good attorney will review the discovery carefully to come up with the best defense possible.  If you have further questions about discovery or criminal procedure, feel free to visit our website or contact us.


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