Following a first appearance, counsel for the defendant must be secured. The first true test of the state’s case will come in the form of a preliminary examination. But before defense counsel is ready to challenge the evidence, that evidence must be made known to him. This process is known as discovery. By its nature, it is a time-consuming and difficult process. But it is also the place where capable counsel excels, because it is where cases are won and lost.

Prosecution’s Role
Before diving into the discovery process, it is important to understand the role assigned to the district attorney by the Constitution. The role of the prosecution is to enforce the law, not necessary to get convictions. In practice, these aims become confused or simply disregarded. The Constitution imposes obligations upon a district attorney based upon the difference of these goals. One such example comes from Brady v. Maryland. In that case, the United States Supreme Court noted that a prosecuting attorney has an obligation to disclose evidence uncovered during police investigations that tends to either prove the defendant didn’t commit the crime or that someone else did. This means that almost any information a police investigation uncovers should be turned over to defense counsel. It is important to keep this obligation in mind when looking at the discovery process.

Initial Request
Section 22-3212 lays out the starting point of discovery obligations for district attorneys. When defense counsel requests, the state must produce key pieces of evidence. These include written or recorded statements made by the accused, including any alleged confessions. Results of any scientific tests, such as DNA tests, mental evaluations, or breath-tests, must also be turned over. Also included are any documents or physical evidence (such as a weapon or stolen property) in the control of the state. It is important to note that these requests extend to the underlying police investigation, as well as the evidence the district attorney intends to use going forward.

Unlike civil cases, where much of the evidence is documentary, criminal cases often will have various types of physical evidence that must be kept by the state. Thus, defense counsel will generally be required to inspect this evidence at police stations or district attorney offices. This can add to the difficulty in quickly preparing for the preliminary examination, particularly when counsel is retained late. Additionally, defense counsel will often be stuck with the written statements or reports of witnesses. Witnesses to the underlying events have no legal obligation to talk to defense counsel and this is perhaps the only right that district attorneys and police are happy to remind individuals of.

Using Discovery
Defense counsel will seek to attack the credibility of the district attorney’s evidence, using the discovery as a guide. Once the documents are produced and the evidence made available for inspection, defense counsel must begin finding weaknesses and inconsistencies. The goal here is quite different than at a full-fledged trial. The district attorney will only have to convince the judge—not prove beyond a reasonable doubt—of two things at the preliminary hearing: (1) the alleged crime was committed and (2) the defendant committed that crime. Thus, the focus will be on undermining the evidence that will be used towards the second question. Again, this task is difficult due to the time constraints.

The produced discovery is also useful in that it is the “freshest” evidence that will be produced. This is because it comes closer to the occurrence, meaning memories are better and scenes are as they were on the date in question. Thus, even though this “round” of discovery is relatively limited in scope, it can give experienced legal counsel a strong impression of how the case will look at trial.

Illegally Obtained Evidence
Evidence that is obtained unlawfully is generally suppressed, or not allowed to be used, at trial. Common reasons for suppression are evidence found via an unlawful warrantless search, evidence found on a person following an unlawful arrest, and confessions given without Miranda warnings. When defense counsel learns of the illegal means by which evidence was obtained, he will motion the court to suppress the evidence and disallow its use at trial.

Thus, this early discovery is also a good opportunity for defense counsel to trace evidence back through the investigation. If any police misconduct is found, a large portion—if not all—of the evidence that was found from that misconduct will be suppressed. However, the longer this chain of evidence grows, the less likely a court is to suppress all evidence it is uncovering. This makes initial discovery a crucial time to cut off these chains of illegal evidence before they branch out too far. For example, imagine a defendant is arrested without probable cause. The officers pat down the defendant and find an envelope containing marijuana. Also in the envelope is a note discussing prices and quantities of marijuana with a phone number. The police may use that phone number to contact defendant’s supplier, and that supplier may make a deal by testifying about other illegal activities of defendant. All of this evidence is growing out of an illegal arrest and should be suppressed. However, the court will eventually find that the chain has grown too long to definitely say the illegal arrest is the sole reason police would have discovered a particular piece of evidence. This highlights the importance of stopping illegally obtained evidence as early as possible.