Queens County Bar Association
Martindale Hubbell - Distinguished 2023

How Do You Proceed in a Criminal Case After Reviewing Discovery?

Usually, the first thing after you’ve looked at it is to go over it with your client, the defendant. At least theoretically, the discovery material should show you how to proceed. Sometimes the discovery is enough to convince a client and his attorney that the best choice is to work out the best possible disposition. In other cases, the discovery shows you what the people intend to prove and shows you what you have to be able to refute. If you feel you can refute it, that’s a much better reason to go forward to trial. Without discovery, you are basically helpless in a trial if you have no idea what’s going to be said by different witnesses and what evidence will be presented,

What Do You Do If You Discover An Error In The Discovery?

It depends on what you call an error. If the error is simply the failure to provide any discovery, if the DA has errored by not giving you what he’s supposed to, you then make a motion for the people to be precluded from offering evidence that you should have had a chance to see. Once again, the courts are very, very reluctant to preclude the people even when they have made those mistakes. If the evidence is erroneous, it can possibly be very helpful to you and you would want to wait until trial to point that out before the jury.

Can Prosecutor Ever Spring New Evidence On Defendants Like They Do On TV?

Unfortunately yes, because once again, the prosecutor is not required to inform you as to what a witness is going to say. For instance, if the people have a civilian witness who claims the defendant admitted that he committed the crime but there is no paperwork stating that, the prosecutor is under no obligation to inform you before trial. On the other side of the coin though, if the defendant intends to call what we call an alibi witness, somebody who will say, “No, the defendant couldn’t have done it because he was somewhere else at the time the crime was committed”, the defendant is required not only to tell the prosecutor that he has that witness, but he has to provide the prosecutor with the name, the address, the place of work, telephone number and other information prior to trial. In fact, it has to be done within 5 days of being served with the notice demand

The system tends to be very skewed in favor of the prosecutor. We have no such requirement if a witness is actually going to identify the defendant other than if there were some police sponsored identification procedure.

What Happens If The Prosecutor Fails To Disclose All The Relevant Evidence In Discovery?

In theory, if the prosecution fails to provide the required information, as limited as it is, they can be precluded from offering any evidence on that subject. In real life, the most that usually happens is that the judge will admonish the prosecutor who failed to turn it over and at most will give the defendant a short delay so that he can investigate and thereby cure the error.

How Difficult Is It For A Defendant To Handle Discovery On Their Own Without An Attorney?

It would be extremely difficult for a defendant to try to represent himself in a case that requires discovery. He would have to learn how to make the proper motions, how to respond when the people do not provide it properly as very, very frequently happens, and would have to know how to take advantage of that fact. It’s like most other parts of a criminal trial. It requires a rather strong degree of expertise in order to effectively get and use discovery materials.

For more information on Reviewing Discovery In a Criminal Case, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 793-5700 today.

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