As a case progresses to trial, additional discovery will continue to take place. The prosecution, and sometimes the defense, will be mandated to provide the other with discovery. This information will make up the evidence that is admissible at trial and at sentencing. However, each side has different mandates regarding discovery. The prosecution has a duty to provide nearly all evidence their investigation obtained. As held in Brady v. Maryland, this includes any exculpatory evidence that conveys that a different individual than the defendant committed the alleged crime. In contrast, the accused has, from the Fifth and Fourteenth Amendments, the right against self-incrimination. This doesn’t imply that the defendant doesn’t have to produce anything, but it significantly limits what the prosecution can request the defense to produce.


Testimony given under oath is called a deposition. This process includes attorneys interrogating witnesses with a stenographer recording and writing everything down verbatim. Section 22-3211 states that, with the court’s permission, witnesses may be deposed. At every deposition, regardless of which side requested it, the defendant and their attorney are entitled to be there. Once the witness is sworn in, the requesting party will start asking them questions. The opposing party is able to object to questions which are improper for a variety of reasons. Upon the requesting party finishing, the other party will be able to ask the witness questions. Depositions can last a few hours and all the way up to several days. A witness that is deposed will also be mandated to testify at the trial. However, if that witness leaves the state, passes away, or becomes incapacitated, their disposition testimony is admissible at trial. Therefore, it is vital that depositions are carefully conducted, just like testimony at trial is.

Expert witnesses are commonly deposed. Experts are used to testify to almost an unlimited variety of issues that require some type of individualized knowledge. Examples are a coroner testifying about the cause of someone’s death or a lab tech testifying about examining alcohol content in a blood sample. Since these experts possess such highly specialized knowledge, it is vital that legal counsel is given a chance to challenge the theories and science behind the witness’s opinion. If the expert’s theories or methods are too unreliable, the information obtained from their depositions may be used to prohibit them from testifying during trial. It is rare to use depositions in Kansas and the court limits their use to only dire instances.

Disclosure of Witnesses

Another part of discovery is the disclosure of all witnesses. The judge will usually set a date by which all witnesses have to be disclosed to the opposing side. This includes any witnesses the defense wants to call. There is a good chance the court will not all a witness that was not properly disclosed, to testify at trial. The reasoning behind this rationale is so that surprises are avoided. Unlike as seen on tv and in movies, surprise key witnesses at trial are severely discouraged. In actuality, the court will most likely prohibit the undisclosed witness from testifying unless an extremely compelling reasoning was presented to the court on why they were not properly disclosed. It is ideal that each side is given full and fair disclosure of what the other side knows. This then allows each party to make tactful decisions in regards to plea bargaining and trial strategy.

Limits of the Fifth Amendment

The accused cannot be forced to testify against themselves. However, the major question is whether the information that is requested is considered “testimony” under the Fifth Amendment. For instance, the accused can be required to participate in a DNA test or fingerprinting if the state requests. The Supreme Court held in California v. Gilbert that the state doesn’t violate the Fifth Amendment when it requests the defendant to give a handwriting sample. This may seem a little off, as the sample could be compared to an incriminating handwritten note and thus implement the accused in a bank robbery. However, the court’s reasoning is that this information was a physical function, not testimony.