Nolo was born in 1971 as a publisher of self-help legal books. Guided by the motto “law for all,” our attorney authors and editors have been explaining the law to everyday people ever since. Learn more about our history and our editorial standards.
Each article that we publish has been written or reviewed by one of our editors, who together have over 100 years of experience practicing law. We strive to keep our information current as laws change. Learn more about our editorial standards.
Discovery is the process through which defendants find out about the prosecution's case. Traditionally, the prosecutor wasn't entitled to information about a defendant's case. But modern discovery rules have made it more of a two-way street. Just as defendants can discover information from prosecutors, so too can prosecutors examine certain evidence in the hands of defendants.
Pretrial disclosure of information through discovery can foster settlement and enhance the fairness of trials. For example, through standard discovery procedure, defendants can:
While most information will go from the prosecution to the defendant, the defendant does have a duty to reciprocate. Defendants typically turn over information such as witness lists and statement summaries, any alibi information, and any results of tests conducted by the defense.
A key purpose of modern discovery is promote fairness at trial. A prosecutor has a duty to seek justice, not just secure a conviction. Modern discovery policies try to focus on fairness and the truth.
No. In the past, prosecutors could guard evidence from defendants with the same fervor toddlers show in protecting toy trucks and dolls from their siblings. Defendants couldn't force prosecutors to hand over witness statements or even reveal the names of their witnesses. Now the view that advance disclosure will promote fairer trials has taken hold—if defense attorneys know ahead of time what to expect, they can better defend their clients.
Surprise evidence may produce fine drama, but it leads to poor justice. Unlike prosecutors, defendants can't call on police agencies to help them investigate and respond to evidence they find out about for the first time at trial. Thus, every jurisdiction (each state and the federal government) has discovery rules requiring prosecutors to disclose evidence to defendants prior to trial.
Not exclusively. Sure, advance disclosure promotes fairer trial outcomes, but it also promotes case settlement, which saves judicial time and resources. If a guilty defendant finds out before trial that the prosecution has a particularly strong case, that defendant will be more likely to plead guilty and save the government the hassle of trying the case. Discovery is likely a significant reason why at least 90% of criminal cases settle before trial.
Issues regarding settlement aside, discovery is intended to help defendants in the sense that prosecutors must hand over certain information that's helpful to the defense.
No. Discovery rules generally distinguish between raw information like names of witnesses, police reports, and drug or alcohol test results, and attorney theories and strategies. The latter is called "work product." Prosecutors don't have to turn over their work product to defendants—otherwise, it just wouldn't be fair. Lawyers would be incentivized to hide their work or do less of it.
Prosecutors can't disclose all discovery on the eve of trial, but on the other hand, they don't have to divulge it all way ahead of time. Discovery can unfold gradually. For example, a defendant's attorney might receive a copy of the police report at the first court appearance but might not receive a prosecution expert's written analysis of blood evidence until shortly before trial.
Most jurisdictions have rules requiring the parties to turn over information within a set number of days after a request is made (such as 14 days) or a party receives test results (such as 5 days). Parties have a continuing duty to supply information as it's received.
If you have questions regarding discovery of information, talk to your criminal defense attorney. Your attorney can help you understand how discovery works, what information you can request, and what information you'll need to turn over.