In addition to the initial disclosure of discovery to the defendant, other discovery will continue to take place leading up to trial. The State and in some cases the defendant will be required to produce discovery to one another. This information will form the evidence that will be used at trial. The two sides have very different requirements concerning discovery, however. The state is under an obligation to produce nearly all evidence resulting from its investigation. Again, under Brady v. Maryland, this includes exculpatory evidence that suggests someone other than the defendant committed the crime. In contrast, the defendant enjoys a right against self-incrimination under the Fifth and Fourteenth Amendments. This does not mean the defendant is free from producing anything, but it greatly limits what the state may ask a defendant to produce.

Depositions in a Criminal Case

A deposition is testimony given under oath. The process is very similar to testifying at trial, with lawyers asking questions of the witness and a stenographer taking down everything that is said, word-for-word. Under Section 22-3211, witnesses may be deposed with the court’s permission. The defendant (and defense counsel) are entitled to be present at every deposition, whether requested by the defendant or the state. The witness will be sworn in and then the requesting party will begin questioning them. The opposing attorney will be allowed to object to questions that are improper for various reason. Once the requesting party is finished, the other attorney will have an opportunity to question the witness. Depositions can range in time from only a few hours to several days. A witness that is deposed will generally also be required to testify at trial. However, if the witness flees the state, dies, or become incapacitated, the deposition testimony may be used at trial. Therefore, it is very important that depositions are handled with great care, just as trial testimony must be.

A common type of witness that may be deposed is an expert witness. Experts can be used to testify to a virtually unlimited variety of topics that require some type of specialized knowledge. These may be a coroner testifying as the cause of an individual’s death or a lab technician testifying about testing a blood sample’s alcohol content. Because of the highly specialized knowledge these expert possess, it is important for an attorney to have an opportunity to test the theories and science behind an expert’s opinion. The information gathered in these depositions can even be used to prevent an expert from testifying at trial if his theories or methods are too unreliable. The use of depositions in Kansas is quite rare and judges limit their use in only extreme cases.

Disclosure of Witnesses by the Prosecution

The State has to disclose any possible witness that they may call at trial. There can not be surprise witnesses by the State. Generally the State adds all witnesses on the charging complaint and makes a motion to endorse witnesses as new witnesses come up in the case.

Disclosure of Witnesses by the Defendant

The Defense doesn't have to disclose witnesses in the same fashion as the Prosecution. The Defendant needs to disclose Alibi witnesses and expert witnesses. The defense has much more protections in place than the State does.

Visit the Scene

The Defendant and counsel may decide to visit the scene and or document the scene with pictures or video. Sometimes this is best done by a videographer or a private investigator. These types of physical evidence can be very useful at trial.

Interview Potential Witnesses

The State has an army of investigators. The defense should also. It is common for a defendant in a criminal case to hire an investigator and have that person track down witnesses or other leads on evidence that may be helpful to his/her case.

Limits Of The Fifth Amendment

A defendant cannot be forced to testify against him- or herself. However, one threshold question is whether the requested information is considered “testimony” under the Fifth Amendment. For example, a defendant can be forced to submit to a DNA test or fingerprinting at the request of the state. In California v. Gilbert, the United States Supreme Court determined that the state could request and require a defendant to submit a handwriting sample without violating the Fifth Amendment. This result seems a bit off, as the handwriting sample was used to compare to an incriminating handwritten note at trial to implement the defendant in a bank robbery. However, the court focused on the fact that it was a physical function, rather than testimony.

Doing your own discovery can be the difference between winning and losing a case. Having an experienced criminal defense team working to preserve your interests is vital at this stage.

The Next Stage of a criminal case it, "Going to Pretrial Conference." Click here for more information.