What Is The Discovery Process In A Criminal Case?

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There is a difference between how discovery is handled in a criminal case in New Jersey and how discovery is handled in municipal courts. In criminal cases, when a person is indicted, that is they are formally accused of a crime by a grand jury, that begins the process. The next step is at what’s called the arraignment conference. Prior to the arraignment conference, under our court rules, defendants will automatically be entitled to and will pick up discovery at the criminal case management office and review it. No request is necessary and that’s the contrast with municipal court practice where the rules place the burdens on the defense to request discovery and on the prosecution to request reciprocal discovery. The request is what triggers the discovery obligation and in rare cases, there may be a tactical reason not to make the request. The difference is that criminal discovery is done almost automatically. In municipal court, where we do most of our drunk driving cases, lower level drug cases and misdemeanor-type cases, the discovery obligation is triggered by an affirmative request by the defense which is made at the same time an attorney notifies the court that he or she is representing the defendant.

How Do You Proceed After You’ve Reviewed Discovery In A Case?

What I normally do when I receive discovery is something that I’ve found useful through my experience defending DWI and other cases for more than 30 years, but this is not a uniform practice and not normally required by court rules. When I receive discovery, I will generally send an itemized list of every document I’ve received, describing each document with enough particularity so that there can be no mistake about what I’m talking about. If for some reason, the discovery provided by the state is incomplete, I may simply finish my letter by saying that I will accept the discovery provided by the state and prepare accordingly, keeping in mind that the defense is under no obligation to provide the prosecution with a roadmap to a conviction. The more typical scenario is that discovery at least facially, at first blush, prima facie, is complete and can establish the element of the offense.

In such a case, I will then follow up my discovery receipt with a specific request for that additional documentation which I believe is necessary to verify the State’s claims. There may be other additional information that may be helpful to the defense but not necessarily helpful to the prosecution. Once those letters go out, we then wait for a response from the prosecutor or we address it when we go to court in a case management conference. Things get sorted out at that point, and the court may grant a discovery request which the prosecution disagrees with, and that places an additional burden on the State. If the judge denies a request for discovery, that at least perfects an issue which we can raise at appeal should the defendant get convicted after trial. The other important role that letter serves is, if a discovery failure becomes apparent in the middle of the trial after jeopardy has attached, that letter becomes an exhibit in support of any defense objections to the admission of any effective evidence. Those letters I found are very important and can be very useful in protecting the client’s interests.

What Happens If There Is Some Sort Of Error Or Anomaly In Discovery?

The prosecutor’s job is to make sure that his or her case is ready to go forward. As a defense attorney, all I can do is see if there are any holes, errors, mistakes or potential defenses raised by that discovery. Defenses come about in one of two ways. The first way is something that maybe the prosecutor has overlooked and there are facts that may be sufficient to persuade the prosecutor to back off and offer an alternative disposition to a guilty plea or a trial for the DWI. Another way of looking at discovery is if there are holes in the case. The defense may choose to wait for the trial and see if the prosecutor continues with those errors. If that prosecutor does so, it may lead to a better result for the defendant by causing an exclusion of breath test or a blood test result, thereby weakening their case to a point where either the prosecutor may offer an alternative disposition before the end of the trial or the defendant may win at the end of a trial. Every situation is different and the degree of reciprocal discovery or disclosure by the defense is going to vary depending on the particular circumstances of each case.

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