Our law firm practices criminal defense in New Jersey and Pennsylvania and one of the critical concepts that we review with clients is an understanding of their pre-trial discovery along with the rules that apply with it. One of the first things that clients ask about is “my discovery” but most don’t understand what the discovery must contain and when they’re actually entitled to it!
The dictionary defines “discovery” as the act or process of finding or learning something that was previously unknown. This definition goes beyond simply the legal world and so it’s a good starting point to understanding pre-trial discovery. If you’ve ever been sued or filed a lawsuit against someone you may already be familiar with terms such as interrogatories, depositions, request for admissions, and requests for production of documents. While these terms typically apply to civil litigation the discovery process is equally important in the criminal defense world.
Its important to understand that you ARE NOT entitled to all discovery immediately just because you are charged with a crime and the rules surrounding are very clear in Pennsylvania and New Jersey regardless of what you’re charged with in these states. Our law firm represents persons charged with drunk driving (DUI/DWI), illegal gun and firearms, drugs and illegal narcotics as well as violent felony offenses such as aggravated assault, robbery and burglary.
Here are six things that a criminal defendant must understand about their discovery regardless of the criminal charge:
- In New Jersey, a defendant is not entitled to apre-trial discovery until he/she has been indicted unless the state has made a pre-indictment offer. In Pennsylvania, a defendant isn’t entitled to discovery until after his or her preliminary hearing.
- In Pennsylvania and New Jersey, a defendant is entitled to all exculpatory evidence (evidence that is material to guilt or punishment).
- Documents which constitute “work product” are excluded from discovery.
- The following are automatically discoverable documents which the prosecution must produce after a criminal complaint is filed:
- Affidavit for search warrant
- Transcript of any oral testimony or summary of any oral testimony given in support of application for search warrants
- Search warrants
- Receipts for property taken pursuant to search warrants
- Return of search warrants
- The prosecution must disclose the names, addresses, and birthdates of any person whom the state knows has relevant evidence or information. The defense must provide the state with the names, addresses, and birthdates of those persons known to the defendant who may be called as witnesses at trial along with their written statements including memorandums reporting their oral statements.
- Depositions may only be taken in criminal actions in 4 separate circumstances:
- The witness is likely to die before trial
- The witness is likely to be physically or mentally incapacitated by the time of trial
- The witness is charged with being a material witness; is incarcerated on that charge and is unable to post bail
- The witness’ testimony is interrupted by illness during the trial
Why are discovery obligations so important?
Discovery issues are critical because if the prosecution fails to comply with the pre-trial discovery obligation it is considered a violation of the Defendant’s due process rights. These violations are serious and could cause a criminal court to dismiss the charges against you or order that a critical piece of evidence for the prosecution be excluded from your case.
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