Discovery

Discovery, in a criminal investigation headed for trial is the process where the prosecuting authorities as well as the counsel for the defense can obtain evidence from the opposing party in an exchange of information such as: results of police reports, 911 calls, video and audio recordings, victim statements, depositions, interrogations, suspect admissions, alibi witness statements, crime scene samples as well as other forensic evidence, photographs, sketches and diagrams, statements of codefendants, among other items such as the assembly of all documents directly relating to the case.

All intended expert witness testimony which the prosecution anticipates using during the trial, toxicology reports and DNA evidence offered by a defendant is also considered acceptable through the Discovery process.

Additionally, the prosecution must disclose any evidence which would reduce the degree of guilt from one class of crimes to another. This is known as mitigation evidence. The prosecution must also disclose any impeachment evidence which is evidence that diminishes the credibility of a prosecution or defense witness including any deals made between a witness and the prosecution.

The Discovery process is usually handled pre-trial but in cases where new evidence becomes available, the process can extend well into an ongoing court hearing. The defense can obtain Discovery from the prosecuting body through a written request. It is a mandatory obligation for the body bringing charges, whether a state or federal entity, to supply the accused and/or their counsel with any evidence that’s intended to be used during the trial against the defendant.

Another way to gather evidence for Discovery is by subpoenas of non-parties also known as a subpoena duces tecum. This can be achieved in the State of Florida as well as on a federal level. A non-party refers to a person or persons that are not directly involved in the case but may have documents or has the ability to supply testimony that is relevant to the circumstances. There are basically two different forms of subpoenas: the trial subpoena, and a discovery subpoena. A Discovery subpoena may be supplied to non-parties requiring them to appear for a deposition to give testimony or supply documents that they possess. In many instances, this type of subpoena is dispensed to compel the non-party to either offer testimony or produce documents in their custody. If a Discovery request is objected to, filing a motion to compel Discovery can be asked for by the assistance of the court.

The prosecuting authority must also provide all exculpatory evidence to the defense. In layman’s terms this simply means that evidence which can be helpful or may even exonerate a defense attorney’s client must be turned over to them. All evidence in the possession of the prosecution must be disclosed, as required by law. The prosecution can’t disclose any evidence that would be a surprise to the defense during an active trial.

Similar rules apply to the defense. However, a defendant’s counsel is under no obligation to afford any potentially detrimental evidence to the prosecution. The prosecution solely has the burden to convey evidence that can make their case. Nonetheless, an exception to this rule is if a defense attorney overheard, or was told first-hand their client making a statement displaying intent to break the law in the future. As an officer of the court, in that case, the defense attorney must disclose that particular awareness to the proper authorities. This would apply orally as well as in any written statements made by the defendant. It would not apply if the defense attorney heard the damning information from a third party.

Michael B. Cohen, Esq. specializes in federal criminal defense and is well-experienced in his performance regarding all categories of cases that fall under the legal statutes of the State of Florida.

He is a member in good standing of both the Florida Bar and New York Bar.

To contact Mr. Cohen for immediate assistance, in Fort Lauderdale call him at 954.928.0059 or call his West Palm Beach location at 561.366.8200.

Mr. Cohen carries an AV rating by Martindale Hubbel, (pre-eminent) and is recognized as a “Super Lawyer” denoting a top 5 percent performance in criminal trial law which is his specialized field.

Additional, Mr. Cohen is “of counsel” for the New York City based law firm of McLaughlin & Stern, LLP., and can be found listed in the latest edition of “Best Lawyers in America“

Please feel free to visit other pages of this Website for detailed information regarding how Mr. Cohen can help you, a family member or a friend that is need of the services of an accomplished attorney, whether allegations are being brought forward by the government or the State of Florida.