After the first appearance, the defendant should hire legal counsel. The first true challenge to the state’s case will take place at the preliminary examination. However, before the defendant’s counsel can do so, the evidence has to be made known to them. This is through discovery. This process is very time consuming and can be very difficult. Having a capable attorney is beneficial as discovery is where cases are won or lost.

Prosecution’s Role

It is vital to comprehend what role the district attorney’s office is assigned by the Constitution. The prosecution is there to enforce the law, not to secure convictions. This can sometimes be pushed to the wayside. The Constitution has requirements for the district attorney’s office to be sure these goals are not confused. In Brady v. Maryland, the Supreme Court held that a prosecuting attorney has a duty to disclose all evidence from a law enforcement investigation that may show that the defendant didn’t do the crime or that someone may have committed the crime. To sum it up, almost all information found during the investigation is made available to defense counsel. It is vital to remember this duty when the discovery process is taking place.

Initial Request

Section 22-3212 states the obligations for prosecuting attorneys. When the defendant’s legal counsel requests the information, the state must abide by that request and turn over important pieces of evidence. This includes but is not limited to: written or recorded statements made by the defendant, alleged confessions, results of any scientific tests or mental evaluations, as well as any documents or physical evidence (i.e., weapon or stolen property) that the state possesses. Discovery requests encompass the law enforcement’s investigation and any evidence the prosecuting attorney will use later on.

Criminal cases have physical evidence as well as documentary evidence, which is different than civil cases. Physical evidence is kept by the state and thus defense attorneys will have to view this evidence at law enforcement centers or the district attorney’s office. If defense counsel is retained late, it can make reviewing the evidence before preliminary examination quite difficult. Often, defense counsel will only be able to obtain written document and witness statements. Witnesses to the alleged crimes have no duty to talk to defense attorneys. The district attorney and law enforcement continually remind witnesses of that fact.

Using Discovery

Your attorney will attempt to challenge the validity of the prosecuting attorney’s evidence by using the discovery they have received. Upon receiving the evidence, a defense attorney begins to evaluate it for weaknesses and irregularities. The goal at this stage is different than at trial. Here, the prosecuting attorney does not have to prove beyond a reasonable doubt that the defendant committed the alleged crime, but rather just convince the judge that a crime was committed and that the defendant may have committed the alleged crime. Defense counsel will focus on undermining the state’s evidence towards the second part. This can be quite difficult due to how soon the preliminary examination occurs.

This produced discovery is also helpful because it is the “freshest” evidence that will be obtained. This is because it was gathered near the occurrence of the incident while memories are better regarding the events that happened. Although this “round” of discovery is limited, it can give a brief overview of how strong, or weak, a case may be.

Illegally Obtained Evidence

Evidence that is gathered illegally is usually suppressed, or disallowed from use, at trial. The most common reasons for suppression are evidence found on a person during an unlawful arrest, evidence found during an illegal warrantless search, and confessions procured without proper Miranda warnings. Upon learning of the illegal means the evidence was gathered, defense counsel will file a motion with the court to suppress the evidence so that it is not able to be used at trial.

Therefore, this early discovery process allows your defense attorney to learn how the investigation obtained the evidence. If law enforcement misconduct is prevalent, the majority (if not all) of the evidence that resulted from that misconduct will be suppressed. However, the larger this line of evidence grows, the less likely a judge will suppress all of the evidence it is uncovering. This means initial discovery is a vital time to attack those lines of evidence before they grow too long. Now imagine a defendant who is arrested without probable cause. The police pat them down and find a baggie filled with meth. Also in the baggie is a piece of paper which details prices and quantities of meth with a couple phone numbers. Law enforcement could use those phone numbers to call the defendant’s supplier, and that supplier may flip on the defendant by making a deal to testify about other illegal activities the defendant has committed. All of this evidence has grown from the initial illegal arrest and should be suppressed. However, a judge could determine that the line has grown too long to positively say the illegal arrest was the lone reason the cops found certain pieces of evidence. Therefore, it is important to stop illegally gathered evidence as soon as possible.