What discovery (evidence) must the District Attorney provide to your criminal defense lawyer – Mandatory vs. Discretionary Discovery in Pennsylvania
Our criminal defense law firm represents individuals charged with crimes and offenses in Pennsylvania. Prior to advising a client on the best way to proceed with the matter, we review all the pre-trial discovery with him or her and answer questions. People often believe that Discovery is a clear issue, but it is important to understand that in Pennsylvania, like New Jersey, there are mandatory and discretionary rules for Discovery. The prosecution isn’t obligated to give the defense everything, despite what many people commonly believe about the justice system in Pennsylvania.
The Defense must request the discovery!
In all criminal cases, the defense attorney must request discovery, and in cases where it cannot be provided in documents, it must provide the defense the opportunity to inspect, copy or photograph the items. This is a very important point because many people believe that the prosecution has to simply turn over everything without a request from the defense. This is simply NOT true and don’t fall into this trap
The following is mandatory discovery in Pennsylvania which the prosecution is obligated to produce prior to trial:
- Any evidence favorable to the accused that is material either to guilt or to punishment and is within the possession or control of the prosecution. Any written confession or inculpatory statement or any substance of any oral confession or statement along with the identity of the person who made the statement.
- The Defendant’s prior criminal history.
- Any circumstances or results of any identification of the Defendant by voice, photograph or in person identification.
- Any reports or scientific tests, expert opinions written or recorded polygraph exams, physical or mental evaluations of the Defendant.
- Any tangible objects, including documents, photographs, fingerprints, and other tangible evidence.
- Any transcripts and recordings of any electronic surveillance and the authority by which the transcripts and recordings were obtained.
Again all discovery isn’t mandatory and the following is discretionary, and the Defendants’ attorney must file a Motion for Pretrial Discovery. The Court may allow the attorney to inspect or copy the following items upon showing that they are material to the preparation of defense and that the request is reasonable.
- Name and addresses of eyewitnesses
- All written or recorded statements of eyewitnesses the Commonwealth intends to call at trial.
- All written and recorded statements made by co-Defendants, co-conspirators, or accomplices, whether or not such individuals are charged.
- Any other information or evidence specifically identified by the Defendant provided the Defendant can additionally establish that the disclosure would be in the interest of justice.
Expert Witnesses & Reports
Finally, if the expert for the prosecution has not prepared a report or examination, the Court may order that the expert prepare a report and that the Commonwealth’s attorney (prosecution) disclose that report stating the following
- the subject matter on which the expert is expected to testify,
- the substance of the facts to which the expert is expected to testify
- the summary of the expert’s opinion and
- grounds for those opinions.
Ongoing Duty to Disclose
Even if Discovery is initially provided, there is an ongoing duty to disclose Discovery on the part of the prosecution and the defense. Yes, the defense is required to produce Discovery, and this would include results or reports of physical or mental examination and scientific tests made in connection with the case, which can be potentially incriminating. All Discovery, however, is subject to the Defendant’s rights against compulsory self-incrimination.
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