STEP 9 – DOING YOUR OWN DISCOVERY

In addition to the initial disclosure of investigation materials 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 and sentencing. 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

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

Another common discovery practice is the required disclosure of all witnesses. The court will generally set a date by which all witnesses must be disclose to the other side. This includes witnesses the defense wishes to call. If a witness is not discussed by the deadline, the court will likely not allow that witness to testify at trial. The goal of these disclosures and the remedy for failing to disclose is based on avoiding surprise. Unlike most courtroom dramas on television, surprise key witnesses are extremely discouraged at trial. In fact, without an extremely compelling reason for not disclosing a witness, that court would not allow the witness to testify at all. Instead, the goal is full and fair disclosure of what each side knows (subject, of course, to the accused right against self-incrimination). This allows each side to make thoughtful decisions as to plea bargaining and trial strategy.

 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.