The key to good organization and preparation
of your case for trial is in conducting discovery. An astute Attorney will pay great attention
to detail in making sure he gathers every shred of information concerning your case well in advance of trial. Each item of
evidence must be viewed, analyzed, photographed and cataloged in order to be ready for trial. The author,
a seasoned criminal defense lawyer, has culled from his vast experience to write this article as a guide to your understanding
of this important aspect of trial preparation.
Years ago, American courts generally allowed little
or no discovery to be given to persons charged with a crime. Today that has changed. The
federal court and all of the states now have rules that permit completely open discovery. This is one of
the due process rights that makes America stand out as a beacon of bright light among most other criminal justice systems
in the world today.
landmark case Brady v. Maryland, 373 U.S. 83 (1963), the Constitution of the United States requires
the prosecution to openly provide all material that could contain exonerating evidence helpful to the Defense. In
addition, the federal Freedom of Information Act [most states have enacted equivalent statutes] permits the open discovery
of information contained in public records. If the police officer went through a disciplinary proceeding
for falsifying police reports, for example, that must be made available to the Defense. Modern criminal
discovery rules now permit the criminal defendant the same access to material and openness of Discovery that has traditionally
been available to civil litigants.
Receiving Discovery from the Prosecutor
Very early in the pretrial phase of your case, the Assistant State’s Attorney will
submit a list of witnesses with their names and addresses. Before trial, they will also provide copies
of the police reports and a list of real or physical evidence collected by the crime scene investigators. This
begins the Discovery process. Your attorney should review this list with you. You will
be able to add the names of other witnesses who might help your case. You can also provide the attorney
helpful insight into those persons whom the State has listed as its witnesses.
The State will also indicate if it possesses any documents, photographs, DNA, fingerprints,
ballistics material, or confessions of the defendant or co-defendants, etc. Your attorney will meet with
the prosecutor to look at and review all of these items before trial. The basic purpose of the modern liberal
Discovery rules is to avoid surprises at trial. Each side should be fully aware of what is coming so they
can adequately assess their case and the chances of success before the trial begins.
If the State fails to provide certain items of Discovery, your lawyer will
file a motion alleging a Discovery violation. The Judge will have to determine if the violation was (1)
deliberate by the State; (2) whether it was a substantial violation; and
(3) whether it prevented adequate preparation to the Defense. In Florida, this is
known as a Richardson hearing from the case Richardson v. State, 245 So.2d 771 (Fla. 1971).
This process will prevent the State from calling witnesses at trial that were previously undisclosed to the
Obtaining Crime Scene Photographs
A picture is worth
1000 words! You have heard that old adage many times before. Selected photos can fix
the image of the crime scene in the jury’s mind better than long explanations by the attorneys and their witnesses.
For instance, the witness may say she saw the defendant backing out of the apartment door shooting into the apartment
where two victims were found shot to death. However, photos clearly show the victims had fallen face down
with their heads towards the apartment door and away from the sliding glass doors to the rear of the apartment.
Additionally, the autopsy photos show they were both shot in the back. Here the photos are the best
cross-examiner of the State’s “key witness.”
It would be wise for the Defense to get color copies of all of the crime scene and other photos
well before trial. It would be even wiser to send the Defense investigator to the scene to take more photos
that might present a more accurate view of the geography of the crime scene.
Taking Depositions of Witness
Today many states follow the federal rule that does not permit the taking
of pretrial discovery depositions in criminal cases. Usually in those jurisdictions, however, a preliminary
evidentiary hearing is permitted. That gives the Defense a pretrial opportunity to question the witnesses.
Florida presently permits pretrial discovery depositions. This is a helpful tool. In
states that still allow depositions, there is no excuse for the Defense not being fully prepared by the time the jury trial
attorney will probably tell the witness, “I was not present at the crime scene. All of the information
that you have about this crime is in your mind and this deposition is to let the attorneys get your information into our minds.
That way we can better assess our respective case. Will you help us to do that?” This
helps to put the witness at ease so they will open up to fully describe what they observed and know about the case. It
also allows the attorney and witness to reach common ground before the pressures of trial set in. What the witness is not
told is that the most effective tool of cross-examination is the prior inconsistent statement.
If the witness testifies differently at trial than they did in the deposition, a skillful trial attorney will focus
the jury’s attention on these inconsistencies. The attorney will be quick to point out that the witness
may not be telling the truth in their trial testimony. This can be devastating if artfully presented.
Conducting an Evidence Review
Experience shows that very few Defense attorneys actually conduct an evidence review. This
review is a set time to go to the police evidence locker and open every package of crime scene evidence so that it can be
observed and photographed before trial. If an attorney doesn’t do this, he will only see the evidence
for the first time as the prosecutor is entering it into evidence. That is way too late. It
is a failure to adequately prepare. It could be basis for an ineffective assistance claim later against that
attorney. How many trials could have been won or even completely avoided had the attorney done this evidence
review with his investigator before announcing “ready” for trial?
Working Closely with the Private Investigator
From the above discussion, you can probably tell how exceedingly important
it is for the criminal defense lawyer to hire and work closely with an experienced private investigator. If
your lawyer says that he will not need to employ an investigator in your case, get another lawyer who will.
Lawyers are very educated in the law. They
read, they study, they analyze and they debate about issues with other lawyers and judges. However, they
are not often street savvy. A good private investigator is street smart.
A lawyer is probably not going to conduct surveillance in a bad neighborhood at 2:00 a.m. and may not be comfortable
knocking on doors looking for clues on an unpopular case. Lawyers need experienced investigators, and investigators
need to work for an experienced lawyer.
In summary, the Discovery stage of your case can be a good indicator of whether
you will win at trial. It is essential that your lawyer conduct this phase of your trial with attention
to detail. If after conducting Discovery things look bleak, you should
have a heart-to-heart discussion with your lawyer and family as to whether you could benefit from considering a plea bargain
instead of the high stakes of going to trial.