Discovery is a fact-finding process that takes place after a lawsuit has been filed and before trial in the matter, in order to allow the parties in the case to prepare for settlement or trial. It is based upon the belief that a free exchange of information is more likely to help uncover the truth regarding the facts in issue. Court rules and state rules of evidence govern the discovery procedure.

There are deadlines and guidelines for filing discovery requests and submitting answers. A failure to timely or properly answer a discovery request may lead to fines and other sanctions. Local laws vary, so laws in your area should be consulted for applicable requirements.

Some discovery methods include written questions called interrogatories, requests for admission which can be only admitted or denied, oral questions at depositions, requests for inspection of property impossible or impractical to move, and requests for production of papers and other physical items to be delivered to the requesting party.

Exculpatory Evidence in Criminal Cases

In order to facilitate fairness, the laws provide that prosecutors provide the defense attorneys with any evidence that may potentially benefit defendants as well during the discovery period.  This exculpatory evidence may help establish a defendant’s innocence, and if not turned over, can result in the overturning of any conviction upon appeal.  Typically, any information that may present any doubt concerning the guilt of a defendant, according to a reasonable juror, is deemed exculpatory evidence in most cases.  To force the turnover of this information, defense attorneys usually make their requests from the onset, as well as interviewing other parties that might be aware of the existence of exculpatory evidence, such as directly interviewing police officers, other attorneys, and witnesses in the case both before and after a trial.

What Needs to Be Turned over to Prosecutors?

Due to reciprocal discovery laws at the federal and state level, the defense is required to share certain information with the prosecutor’s office as well.  This information may be restricted successfully through Fifth Amendment claims, but for federal courts, a request to produce an alibi to the defense means that the names corroborating this alibi must be provided.  Some states include more comprehensive reciprocal evidence rules, which vary from jurisdiction to jurisdiction.