Discovery In Criminal Law Cases This Is How It Works

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.

Vinny Makes A Criminal Discovery Request

She says,

“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.

(a) Defendant must make a written motion for discovery to initiate the obligation of the state to tender the described items.

(i) A list of witnesses together with their statements or memoranda describing their statements;
(ii) Any statements made by defendant or codefendants that were recorded or written or any summary of these statements;
(iii) Grand jury transcripts;
(iv) Reports by expert witness including their reports and a statement of their qualifications as an expert
(iv) Any documents or tangible objects the prosecution intends to use or any item obtained from or belonging to defendant; and
(vi) The criminal record of the state’s witnesses; and a list of any rebuttal witnesses

(b) The state must disclose any electronic surveillance including wiretapping of conversations to which the accused was a party.

(c) This is the Brady Provision. The state must disclose to the defense any information “which tends to negate the guilt of the accused as to the offense charged or which would tend to reduce his punishment therefor.”

(d) “The State shall perform its obligations under this rule as soon as practicable following the filing of a motion by defense counsel.”

(e) The State and defense shall figure out how the information will be tendered:

(i) The information may be described in general terms and the defense given a chance to copy and inspect what it wants; and
(ii) The defense may make arrangements for testing and inspecting items at a suitable place and time.

(f) “The State should ensure that a flow of information is maintained between the various investigative personnel and its office sufficient to place within its possession or control all material and information relevant to the accused and the offense charged.”

(g) The State shall use diligent good-faith efforts to make material not in it’s control available to defense counsel.

(h) “Discretionary Disclosures. Upon a showing of materiality to the preparation of the defense, and if the request is reasonable, the court, in its discretion, may require disclosure to defense counsel of relevant material and information not covered by this rule.”

(i) “Denial of Disclosure. The court may deny disclosure authorized by this rule and Rule 413 if it finds that there is substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from such disclosure which outweighs any usefulness of the disclosure to counsel.”

(j) Matters Not Subject To Disclosure.

(i) Work Product. The opinions, theories or conclusions of the State or members of its legal or investigative staffs are not discoverable.
(ii) Informants. “Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused.”
(iii) National Security. “Disclosure shall not be required where it involves a substantial risk of grave prejudice to national security and where a failure to disclose will not infringe the constitutional rights of the accused.”

Rule 412. Disclosure to Accused.

How To Make A Criminal Discovery Request

Download A Sample Motion For Discovery In Felony Cases

sample motion for discovery (felony) — Felony Sample Motion for Discovery

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.

Download Sample Motion For Discovery In Felony Cases.

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.

(a) The Person of the Accused. The court may order defendant to:

(i) appear in a lineup;
(ii) speak for identification purposes;
(iii) be fingerprinted;
(iv) pose for photographs not involving reenactment of a scene;
(v) try on articles of clothing;
(vi) permit the taking of specimens of material under his fingernails;
(vii) permit the taking of samples of his blood, hair, and other bodily materials, which involve no unreasonable intrusion;
(viii)provide a sample of his handwriting; and
(ix) submit to a reasonable physical or medical inspection of his body.

(b) Defense counsel has a right to be present at any of the above, and reasonable notice of the time and place of such appearance shall be given by the State to the accused and his counsel.

(c) Medical and Scientific Reports. Upon a written motion by the state the defense shall disclose any reports by experts that it intends to call a witness.

(d) Defenses. Upon a written motion by the state the defense shall disclose any defenses which he intends to make at a hearing or trial and shall furnish the following information and material in their control:

(i) Witness list including names and addresses of witnesses together with their written or recorded statements and any summaries of the statements, and a record of prior convictions of these witnesses known to the defense; and
(ii) Any documents, photographs, or tangible items it intends to use at trial or for impeachment; and
(iii) Any alibi evidence defendant is using describing the specific place he says he was at the time of the offense.

(e) Additional Disclosure. “Upon a showing of materiality, and if the request is reasonable, the court in its discretion may require disclosure to the State of relevant material and information not covered by this rule.

Rule 413. Disclosure to 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:

“(a) If it appears to the court in which a criminal charge is pending that the deposition of any person other than the defendant is necessary for the preservation of relevant testimony because of the substantial possibility it would be unavailable at the time of hearing or trial, the court may, upon motion and notice to both parties and their counsel, order the taking of such person’s deposition under oral examination or written questions for use as evidence at a hearing or trial.”

Rule 414. Evidence Depositions.

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:

“(a) Investigations Not to be Impeded. Except as is otherwise provided as to matters not subject to disclosure and protective orders, neither the counsel for the parties nor other prosecution or defense personnel shall advise persons having relevant material or information (except the accused) to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor shall they otherwise impede opposing counsel’s investigation of the case.

(b) Continuing Duty to Disclose. If, subsequent to compliance with these rules or orders pursuant thereto, a party discovers additional material or information which is subject to disclosure, he shall promptly notify the other party or his counsel of the existence of such additional material, and if the additional material or information is discovered during trial, the court shall also be notified.

(c) Custody of Materials. Any materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes of conducting his side of the case, and shall be subject to such other terms and conditions as the court may provide.

(d) Protective Orders. Upon a showing of cause, the court may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit counsel to make beneficial use thereof.

(e) Excision. When some parts of certain material are discoverable under these rules, and other parts not discoverable, as much of the material should be disclosed as is consistent with the rules. Excision of certain material and disclosure of the balance is preferable to withholding the whole. Material excised pursuant to judicial order shall be sealed, impounded and preserved in the records of the court, to be made available to the reviewing court in the event of an appeal.

(f) In Camera Proceedings. Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed, impounded, and preserved in the records of the court, to be made available to the reviewing court in the event of an appeal.

(g) Sanctions.

(i) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.
(ii) Willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court.”

Rule 415. Regulation of Discovery.

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.

Download A Sample Motion For Discovery In Misdemeanor Cases…

Here’s a sample motion for discovery in a misdemeanor case. It’s also a great criminal discovery checklist.

Download Sample Motion

Download This Sample Motion Now.

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.

Discovery Violation

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.”

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