What is “Discovery” in a Misdemeanor Criminal Case? A Process of Collecting Evidence.

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If you walked up to me and spent 20 minutes telling me the story of your New Years Eve DUI arrest, and then asked me if you should plead guilty, I would probably say:

“You should not make any decisions until you see the

Most normal people do not know what the term “Discovery” means, but that is how criminal defense attorneys talk about collecting evidence.

Whether you understand it at first or not, the statement is accurate. No Defendant should make any permanent decision on selecting a criminal plea without first seeing the “Discovery”.

What is the “Discovery”? Why do you need to see it first, before making any decisions in a criminal case?

I. “Discovery” is the Process of Collecting the Evidence. Defendants Need to See the Evidence the Government Wants to Use.

In law-gibberish, evidence that is not yet ready for a trial is known as “Discovery”. The process of collecting and then exchanging evidence before a trial date in a court case is also known as “discovery” or the “discovery process”.

Sometimes there are important flaws in a criminal prosecution that do not appear from the Defendant’s idea of what happened. A skilled Criminal Defense Attorney looks for these flaws in the “Discovery” before making any recommendations to a client.

If the right flaws are present in the discovery evidence, there may be a hidden, but critical defense. And even if an outright dismissal is not going to happen, any weaknesses in a prosecution’s case revealed by the Discovery can lead to leverage during a plea negotiation for the Defendant.

II. Evidence Must Be Exchanged Automatically by Both Sides in a Criminal Case.

Both sides in a criminal case are required by law to exchange their evidence before trial. In a criminal case, it is usually the prosecution’s evidence that is a problem for the Defendant. In California, and nearly all other states, criminal prosecutors are required to turn over all evidence – good and bad – to the Defendant and his/her Attorney of record before trial – as soon as it is available. The prosecution must turn over everything, including evidence tending to show the innocence of the defendant even if the prosecutor thinks it is not be admissible in court.

In a common misdemeanor case, much of the prosecution’s evidence is handed over at the Arraignment, or first court date. For example, in a driving under the influence case, the prosecutor is often ready to hand over police reports and BAC test results at the first court appearance on the case.

Another example?

In a driving on a suspended drivers license case with a bench warrant, a prosecutor at the arraignment will probably be ready to hand over to the defense a DMV driver history print out, and a charging document such as a traffic citation or more formal Misdemeanor Complaint.

Specifically, California Penal Code section 1054.1 states:

The prosecuting attorney shall disclose to the defendant or
his or her attorney all of the following materials and information,
if it is in the possession of the prosecuting attorney or if the
prosecuting attorney knows it to be in the possession of the
investigating agencies:
(a) The names and addresses of persons the prosecutor intends to
call as witnesses at trial.
(b) Statements of all defendants.
(c) All relevant real evidence seized or obtained as a part of the
investigation of the offenses charged.
(d) The existence of a felony conviction of any material witness
whose credibility is likely to be critical to the outcome of the
(e) Any exculpatory evidence [evidence tending to show innocence].
(f) Relevant written or recorded statements of witnesses or
reports of the statements of witnesses whom the prosecutor intends to
call at the trial, including any reports or statements of experts
made in conjunction with the case, including the results of physical
or mental examinations, scientific tests, experiments, or comparisons
which the prosecutor intends to offer in evidence at the trial.
[emphasis added.]

Defendants also have the right to collect evidence independently from the prosecution. By using subpoenas, and investigators,and other techniques for finding evidence, a Defendant can collect evidence that the prosecutor does not have to produce. Independently collected defense “Discovery” often includes witness statements, independent pictures. measurements, etc.

III. What Are the Typical Discovery Materials that Must be Reviewed in Criminal Cases Prior to a Decision on a Plea?

Ideally, a complete and total review and analysis of all of the evidence is needed before making a completely informed decision on whether to demand a jury trial or plead guilty, or accept a plea offer from the prosecutor in a criminal case. Here are some of the more important items in discovery:

Police Reports Often Contain Flaws that Can Lead to a Defense.

Police reports themselves are usually not admissible in court alone, because they are filled with hearsay evidence. But even an inadmissible police report can reveal hidden defenses. For example, in a DUI misdemeanor case, there are certain required DMV forms that must be filled out correctly and signed under penalty of perjury by the investigating officer to validate the BAC testing. If those forms are not signed and filled out as required by law, the Defendant might escape a conviction even if their own memory says they are completely guilty.

If the officer did not sign under penalty of perjury that the test was done correctly and the machine was operating correctly – woohoo! you have found a hidden defense in the discovery. Or what if the subpoena to the PAS device manufacturer reveals that the PAS machines are +0.02% off when the temperature in below 40 degrees? Was it cold or snowing when you took that road side test?

These fictitious, but true, flaws in some prosecution cases cannot be uncovered until after the initial “discovery” of the police report happens. Making a fast decision on how to plead without seeing this discovery can wreck a totally legitimate, hidden defense.

Witness Statements Can Make or Break a Case.

Witness statements taken by a police officer at the scene of a crime are often admissible in court. Some defendants are very surprised at what the witness statements taken by the police actually say.

To fully evaluate a case, a Defense Attorney must review the discovery and attempt to reconcile any discrepancies in the defendant’s version of the facts with the witness statements. Maybe there is evidence favorable to the defendant in those statements that the defendant does not know about. Maybe the Defendant is making false assumptions about the statement a certain witness made? Maybe it is not as bad as you thought. Maybe it is worse than you thought? You’ll never know unless you collect, review and analyze the discovery prior to making any permanent decisions.

Drug or Alcohol Test Results Can Tell You a Lot About a Case.

Defendants in DUI or drug cases should not just assume before court that they know what the real test results were. Sometimes the test results show abnormalities that the officer does not tell the defendant, and does not document in the police report. For example, a breathalyzer machine might read correct for one test, then show a test result far outside the expected norm – like 0.08 on the first test and then a 1.8% result 30 seconds later then a 0.09% a few minutes after that. The initial discovery package from the prosecutor may contain that BAC machine tape and therefore that favorable evidence.

A not-so-well-informed Defendant in court alone on a DUI may never have reason to suspect there was a problem with the operation of that breathalyzer at the time. Yet it is critical information one needs to make an informed decision on a criminal case plea.

IV. How is Misdemeanor Discovery Collected?

In California, Penal Code section 1054.1 requires a prosecution to produce all discoverable materials to the defense without delay and without request form the defendant. Through this law most of the discovery in a typical misdemeanor or DUI prosecution is supposed to come to the defendant automatically from the prosecutor. Usually, there is an open court production of discovery by the prosecutor at the first court appearance or Arraignment.

In some cases, discovery may come in sections, or different intervals. But it usually comes very fast in a common misdemeanor case. In cases with on going investigations, the discovery may take place as the investigation takes place. In some courts, the Defendant will be told at the Arraignment that they have to go to the District Attorney’s Office across the street to pay for and pick up copies of the discovery.

A Defendant Can Make Informal Discovery Requests Right Away.

Most attorneys will send out a letter to the prosecutor immediately upon being hired for a criminal case. The letter will notify the prosecutor that the Defendant has legal representation, and will make a written, informal request that the prosecutor produce all “discoverable information”. This informal requests protects the defendant’s rights under Penal Code section 1054.1 for example, and is done outside of court in a simple letter.

Issue Subpoenas to Independently Compel Production of Evidence.

As sworn officers of the court, licensed Defense Attorneys have the legal authority to issue subpoenas to collect evidence and leads on evidence. A defendant may use a subpoena to locate and collect “discoverable” evidence from nearly any person or business. A Defendant in a DUI case may want to independently subpoena reliability study records from the manufacturer of a breathalyzer machine. Before you decide how to plead, you may want to see if there was a known problem with this particular model spitting out false results when used in the rain, etc.

There may be a need to subpoena that gas station surveillance video to see if you really were sleeping on the hood of your car, or in fact changing the radio as you remember? Be informed about what the evidence contains before you decide how to plead.

Motion to Compel Discovery and Order for Sanctions.

A prosecutor who wrongfully with holds evidence and fails to produce discovery automatically may be guilty of proprietorial misconduct. If needed, a Defense Attorney (or Defendant acting alone) can make a written Motion to the court to request that a court issue an order telling the prosecutor to turn over specific evidence that they are holding, or have constructive control over. When necessary, a Defense Attorney’s Motion to Compel Discovery (as it is called in court) often includes a request that the court order the prosecutor to pay or suffer some “sanction” (penalty) for the failure to comply with the automatic discovery demands of Penal Code section 1054.1.

And there you have it. A free self help primer on criminal case discovery with a moral to the story. No matter how it is done, it is a wise idea to review the discovery before making any permanent decisions on how to plead.

Questions? Leave a reply.

About Attorney Christopher Dort

Public Interest Attorney. CA State Bar #196832. Licensed to practice law in California 1998, and then the US Federal District Court in 2000. Civil Litigation Trial Attorney (Insurance Defense Firms) 2000-2003. Private practice 2003 - present. First Solo Criminal Jury Trial 1998 (Santa Cruz County). First Civil Jury Trial 2002 (Orange County). Santa Cruz County Public Defenders Office 1996-1999 (law clerk). BA in Politics from UC Santa Cruz, 1995. JD, University of California, Hastings, 1998.
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