There is a scene from “My Cousin Vinny” that perfectly describes how discovery in criminal law works.
Attorney Frank Gambini (Joe Pesci) walks into the room he’s sharing with Mona Lisa Vito (Marisa Tomei) gleaming with pride because he just “finessed” a box of records from the prosecution.
In that one scene Mona sums up all discovery criminal law.
“Don’t you wanna know why Trotter gave you his files?”
Vinny say, “I told you why already.”
Mona responds, with,
“He has to, by law, you’re entitled. It’s called disclosure you dick$#@!. He has to show you everything, otherwise it could be a mistrial. He has to give you a list of all his witnesses. You can talk to all his witnesses. He’s not allowed any surprises!
They didn’t teach you that in law school either?”
Illinois Supreme Court Rule 412. Disclosure to Accused
Discovery In Criminal Cases…
In Illinois the Supreme Court has rules that regulate discovery in criminal cases. Each party has an obligation to the other side.
Illinois Supreme Court Rule 412 is outlined below. It describes what the prosecution must tender to the defense in all felony cases.
How To Make A Criminal Discovery Request
Download A Sample Motion For Discovery In Felony Cases
This sample motion serves as a great criminal discovery checklist. This is an example of the a criminal discovery request and lists the kinds of things a defense team should ask for in a criminal case.
To download this sample motion for discovery in felony cases hit the link below.
Illinois Supreme Court Rule 413. Disclosure to Prosecution
More Discovery In Criminal Cases…
Most of the discovery in criminal cases flows from the state to the accused. That does not mean the defense does not have disclosure requirements.
Illinois Supreme Court Rule 413 spells out exactly what the defense must tend to the prosecution.
Illinois Supreme Court Rule 414. Evidence Depositions
Criminal Depositions In Criminal Trials
In criminal trials depositions are not as common as they are in civil cases. However the rules of discovery in criminal cases do allow for some limited depositions. Usually, a material witness as to be sick and dying. Here’s the rule:
Illinois Supreme Court Rule 415. Regulation of Discovery
In variably when disputes between the parties erupt concerning what has and has not been tendered a judge may have to get involved to settle disputes.
These are the rules a court follows to settle issues:
Discovery In Misdemeanor Cases
The rules of evidence described above pertain to felonies in Illinois. However, there is case law that describes discovery in criminal misdemeanor cases.
“The State is required to furnish defendants in misdemeanor cases with a list of witnesses, any confession of the defendant, evidence negating the defendant’s guilt (Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194), and, in this particular case, the results of the breathalyzer test. Additionally, the report which the defendant seeks will be available at trial for use in impeachment of the prosecution witness who prepared it.” People v. Kladis, 2011 IL 110920, ¶ 25; quoting People v. Schmidt, 56 Ill. 2d 572 (1974).
Since the Schmidt decision, video recordings made by in-squad car cameras in misdemeanor DUI cases have become as relevant to the issue of proving or disproving guilt as the materials specifically mentioned in Schmidt.
Allowing their discovery furthers the objectives of pretrial discovery to “enhance the truth seeking process, to enable attorneys to better prepare for trial, to eliminate surprise and to promote an expeditious and final determination of controversies in accordance with the substantive rights of the parties.” Kladis, ¶ 25; quoting D.C. v. S.A., 178 Ill. 2d 551, 561 (1997).
See also People v. Taylor, 2011 IL 110067 where the Illinois Supreme Court allowed videos to be disclosed through misdemeanor discovery. See also 20 ILCS 2610/30(b) and 720 ILCS 5/14-3(h-15) mandating in squad car videos.
“In sum, we conclude that the routine video recording of traffic stops has now become an integral part of those encounters, objectively documenting what takes place by capturing the conduct and the words of both parties. We therefore hold that this important and relevant evidence falls within the scope of materials held to be discoverable under Schmidt.” Kladis, ¶ 29.
The Civil Discovery Rules
Additionally, in DUI cases it’s common practice to cite to the Civil Rules of Discovery which governs the civil hearing on a petition to rescind a summary suspension.
See People v. Patel, 2019 IL App (2d) 170766 (March). Episode 603 (Duration 19:01)
Rule 201. General Discovery Provisions
(b) Scope of Discovery.
(1) Full Disclosure Required. Except as provided in these rules, a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts. The word “documents,” as used in Part E of Article II, includes, but is not limited to, papers, photographs, films, recordings, memoranda, books, records, accounts, communications and electronically stored information as defined in Rule 201(b)(4).
(d) Time Discovery May Be Initiated. Prior to the time all defendants have appeared or are required to appear, no discovery procedure shall be noticed or otherwise initiated without leave of court granted upon good cause shown.
(k) Reasonable Attempt to Resolve Differences Required. The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery. Every motion with respect to discovery shall incorporate a statement that counsel responsible for trial of the case after personal consultation and reasonable attempts to resolve differences have been unable to reach an accord or that opposing counsel made himself or herself unavailable for personal consultation or was unreasonable in attempts to resolve differences.
Rule 214. Discovery of Documents, Objects, and Tangible Things-Inspection of Real Estate
(a) Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, including electronically stored information as defined under 201(b)(4), objects or tangible things, or to permit access to real estate for the purpose of making surface or subsurface inspections or surveys or photographs, or tests or taking samples, or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents, objects, tangible things, or real estate is relevant to the subject matter of the action. The request shall specify a reasonable time, which shall not be less than 28 days after service of the request except by agreement or by order of court, and the place and manner of making the inspection and performing the related acts.
A discovery violation may be analyzed as either a due process violation under Arizona v. Youngblood, 488 U.S. 51, 58 (1988), or under Illinois Supreme Court Rule 415(g)(i). People v. Borys, 2013 IL App (1st) 111629, ¶ 17.
The Law On Destruction Of Evidence
The Supreme Court noted that the police do not have “an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution” and held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Youngblood, 488 U.S. at 58.
Fourteenth Amendment, as interpreted in Brady v. Maryland, 373 U.S. 83 (1963), makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence.”
- People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 (Duration 14:02) (What To Do, What To Do About Lost, Destroyed, or Missing Video?)
- People v. Kladis, 2011 IL 110920
- People v. Aronson, 408 Ill. App. 3d 946 (2nd Dist. 2011)
- People v. Danielly, 274 Ill. App. 3d 358, 367 (1995)
- Arizona v. Youngblood, 488 U.S. 51 (1988) (Officers failed to refrigerate clothing of a rape victim, later resulting in the inability to perform serological tests no denial of due process absent a showing of bad faith on the part of the police.)
- People v. Aronson, 408 Ill. App. 3d 946 (2nd Dist. 2011) (Very similar to facts in this case where court denied sanctions but then ruled in favor of defendant at the SSS hearing in part because the FST’s were being challenged.)
- People v. Moravec, 2015 IL App (1st) 133869 (November). Episode 105 (Duration 8:00) (DUI Discovery Sanctions Upheld: Police Refuse To Give Up Their POD (Police Observations device) Images).
- Police Drug Dog Discovery: Defense Has A Right To Know Everything About The Dog
- Why Police Drug Dog Discovery Should Include Veterinarian Records
- People v. Cunningham, 2018 IL App (1st) 153367 (June). Episode 517 (Duration 12:37) (Significance Of The Evidence And Bad Faith Drive Discovery Violation And Destruction Of Evidence Issues)
- People v. Tsiamas, 2015 IL App (2d) 140859 (December). Episode 122 (Duration 5:12) (DUI Discovery Violation: Booking Room Video Discoverable)
- People v. Olson, 2015 IL App (2d) 140267 (June). Episode 077 (Duration 17:22) (No sanctions or remedy when defendant is given a blank disk because there is no proof the recording ever existed.)
- Defendant’s Are Entitled To Police Body Cam Footage Through Discovery
- People v. Acevedo, 2017 IL App (3d) 150750 (March). Episode 309 (Duration 6:09) (Here’s A DUI Discovery Sanction With No Teeth (It’s Not The Civil Inference Thing)
- Is It Time To Kill The Brady Rule? And Other Big Discovery Issues With Evan Bruno
- Illinois FOIA Is An Alternate Means To Gather Information
- People v. Moore, 2016 IL App (1st) 133814 (February). Episode 149 (Duration 4:49) (Giving A Civil Instruction Is Sometimes An Acceptable Discovery Violation Sanction)
- People v. Jones, 2017 IL App (1st) 143403 (January) Episode 299 (Duration 5:53) (Mental Health Records Are Sensitive: Here’s How You Can Possibly Get Them)
- In re Manuel M., 2017 IL App (1st) 162381 (January). Episode 292 (Duration 8:55) (Minor Not Allowed To Cross On The Officer’s Surveillance Location)
- People v. Flournoy, 2016 IL App (1st) 142356 (November). Episode 259 (Duration 11:44) (Defendant Had A Right To Know The Surveillance Location From Where Police Made Their Observations)
- People v. Gray, 2016 IL App (1st) 141196 (March). Episode 152 (Duration 4:03) (Discovery Rule Doesn’t Cover Crooked Cops: No Duty To Disclose Before A Plea)
- People v. Moises, 2015 IL App (3d) 140577, ¶ 4 (August) (no discovery violaion when officer did not record the FST’s)