As a criminal defense attorney in California, I have encountered many different issues involving discovery over the years, and I would like to share my perspective and experience with the next generation of lawyers. It is important to keep in mind that the laws, procedures, and time frames vary from county to county and from state to state. There is no substitute for doing your own research, checking the local rules, and consulting a practice guide from the jurisdiction in which you live and work. It is my hope that this primer will help shed light on the general process, point out major issues that arise, and ultimately help you improve your success rates in negotiations and trials.
Discovery Basics
On the surface, discovery in criminal cases is not overly complicated. The reciprocal discovery scheme between the prosecution and the defense is usually codified in the penal code of the state where the case is being brought. After defense counsel becomes the attorney of record, the prosecutor will send them the initial discovery and an informal request for discovery. That is followed by informal discovery requests from the defense and the exchange of non-privileged evidence between both parties. Law in motion is usually only necessary if one side is playing unfairly or if the defense attorney needs something specific that falls outside the standard statutory scheme. Examples include confidential internal police personnel files or HIPPA-protected information of prospective witnesses. What is not usually covered in the discovery statutes is third-party discovery. Because of its nature, things can become much more complicated when dealing with third-party discovery and the issues that surround it.
First Steps
Prosecutors usually have subpoena power as soon as they take on the case, including during the investigation. Defense attorneys only gain subpoena power once formal criminal proceedings have begun and they become the attorney of record in the case. Practically speaking, this usually happens at the arraignment, which can come weeks or even months after the arrest. The general rule is that once someone has been arrested, they must be arraigned within 72 hours if they remain in custody. If they bail out, in my experience, the arraignment is approximately a month away from the actual arrest date. During this time, evidence can spoil, crime scenes can be altered, witnesses can become unavailable or missing, and documents and video footage can get lost or deleted. It is of the utmost importance that the discovery process starts as soon as possible.
Your first chance to gather information is during the client interview. The information gleaned from this meeting can be invaluable. You will want to collect as much information as you can from clients about themselves, their contact information, personal history, criminal background, what they do for a living, their health, their family, their immigration status, the incident that led to the arrest, and anyone who could be a potential witness.
Conducting Your Own Investigation
After your initial interview with the client, you should know the physical location of where the alleged crime took place, have a list of both friendly and unfriendly witnesses, and contact information for anyone who can help shed light on the situation. You will also know your client’s version of the story. Armed with this information, you should next start your own investigation. You should create a document that details the client’s side of the story, outlines your personal thoughts on the case (which is undiscoverable work product), and lists all the contacts and people you need to have interviewed. The next step is to hire a licensed investigator and have them review your notes as well as listen to your verbal explanation of the situation. It is also a good idea to have your investigator speak directly to the client and do their own interview. More often than not, a fresh interview with the investigator will allow you to see the case from a different perspective or discover new facts that you were not made aware of during the initial interview with the client. It also allows you to gain the insights of a non-attorney, which can be very helpful in determining how a jury would perceive the client if they choose to testify at trial.
You should always go to the crime scene and inspect it along with the investigator. You should then have the investigator take photographs, interview witnesses, and canvas the area for cameras or other possible witnesses. The investigator will then create a report of their findings. Remember, the investigation report itself is considered attorney work product and is generally privileged information, although some of its contents may not be privileged, depending on the specific situation. The investigator acts as an agent for you, and thus, their work on the case is considered your work product. The same principle applies to paralegals. You should also ensure that the investigator knows and understands the rules about interviewing witnesses in your jurisdiction. Generally, they must disclose that they are working as a private investigator for the defendant’s attorney, give their contact information, including their license number, and explain that the witness is free to decline to speak with them.
It is also permissible to have your investigator reach out to the alleged victim in the case, but you need to be very careful when doing so. The prosecution represents the state. You represent the defendant, and the alleged victim can and will occasionally hire an attorney to represent their interests as well. This is especially true when dealing with issues involving restitution. If the alleged victim has hired an attorney to represent their interests in the case, then it is not proper to reach out directly to the alleged victim, and you should first go through their attorney to try to set up the interview. If the alleged victim is not represented, then the investigator can reach out to them directly for an interview. All the aforementioned rules still apply, but the investigator also needs to make sure that there is no harassment or intimidation whatsoever in the interview process and that the communication does not violate any standing criminal protective orders that are in place. It should also be noted that the prosecution cannot stop you from interviewing the alleged victim, but they will regularly advise the alleged victim not to cooperate with you. If the alleged victim is hostile and does not want to talk about the case, then your best option is to let the interview go and simply subpoena them for the preliminary examination, jury trial, or both.
In most circumstances, it is best practice to hire an investigator who is very personable and friendly. After all, honey will generally get you further than vinegar in life. In most cases, witnesses are more than happy to speak with the investigator and will regularly give you any and all information and evidence that they possess. Commercial businesses, on the other hand, generally will only provide evidence if you send them a subpoena duces tecum to their agent for service of process. If you find yourself without the power to subpoena the evidence you need and a witness or business is refusing to give it to you, then your only recourse is to send them a formal letter demanding that they preserve the evidence so that it can be obtained after you have received the power to subpoena it. This is especially important when it comes to getting evidence from telephone providers and video footage from businesses or residences. Often, things such as geolocation, call logs, and video recordings are only temporarily held and are automatically deleted after a fairly short period of time.
