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Understanding Pre-Trial Discovery

Understanding Pre-Trial Discovery

Pre-trial discovery is one of the most significant rights that a criminal defendant has to help them avoid a false or unfair conviction. By pre-trial discovery I am referring to the formal, court mandated process by which defendants have a legal right to obtain information accumulated by the government. Helping obtain pre-trial discovery, and using it to help our clients, is one of the most important jobs that we do.

Pre-trial discovery may contain items such as:

  • Police Reports
  • Witness Statements
  • Photographs
  • 911 and Police Audio Recordings
  • Video Recordings
  • Chain of Custody Materials
  • Laboratory Results
  • Alleged Victim’s Medical Reports

Discovery may also include any other document or material in the possession of a third-party by issuance of a subpoena. For example, if we need to evaluate bank records as part of the defense we can issue a subpoena directly to the bank to obtain those documents. Subpoenas are documents that we request from the court, and then have served on the individual or business that we think has relevant materials.

The most common way of obtaining discovery documents and materials from the police or prosecutor is by issuing what are called discovery motions. These are formal requests filed with the court and served upon the police or the prosecutor’s office. The most common discovery requests issued in South Carolina are called Brady or Rule 5 motions.

Discovery motions are prepared by our office and signed by an attorney, usually well before any court hearing. For this reason it is important to start on cases as early on in the process as possible, to ensure that there is enough time to file the motions, receive the responses, evaluate them, and make the appropriate defense strategy.

Of course relying on the discovery alone is frequently not enough to effectively challenge a case. Usually these are materials compiled by the police or prosecutor’s investigators, and they not have conducted a complete investigation. For this reason it is frequently a good idea to supplement the discovery materials with an independent defense investigation by using defense investigators, experts, and also court subpoenas to obtain materials from third-parties.

When the police or prosecutor fail to turn over required discovery materials this can cause the court to either have to continue or post-pone the trial to make sure that the defendant has adequate notice of those materials, or in some cases to even dismiss the case entirely.


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