Wrapping up our series on the basics of the legal process, we’ve looked at courtroom positions and personnel, the way criminal cases work, steps in a courtroom trial, steps in a criminal case, and the jury selection process. If you recall, the steps in a criminal case include arraignment, preliminary hearing, second arraignment, pretrial hearing, the jury trial, and either acquittal or sentencing. Now, last week we discussed one of the key things that happens before the trial begins: jury selection. We’re doing the same thing this week, talking about pre-trial discovery and determining evidence.
First, we use the term “pre-trial discovery” to mean the prosecution and defense’s investigation to gather evidence for the trial. Now, you might think, “Isn’t that the job of the police?” Yes, and the prosecution will use the evidence the police has gathered. But attorneys will also need to gather their own evidence. They do this in various ways, including:
- Deposition – a witness’ official testimony recorded under oath and out of court. Any witnesses that will be called to the stand will first give a deposition long before the trial even begins. This helps both the prosecution and defense know what to expect during the trial.
- Request for admission – an official request from one party to the other regarding the truth about the facts of the case. Who did what when, etc.
- Request for production – an official request from one party to the other regarding the genuineness of a document or piece of evidence.
- Subpoena – a court order that requires either a.) a witness to appear in court, or b.) the other side to submit books, records, or other documents for inspection.
- Gathering documents – photographs, official records, bills, police reports, signed documents, etc.
Pre-Trial Discovery and the Brady Disclosure
Second, after discovery and all the evidence has been gathered, both sides must submit to a Brady disclosure. This means that each side must exchange all the evidence the other side has gathered. For example, if the prosecution discovers evidence that would exonerate the defendant, they must submit that evidence to the defense. Therefore, even any evidence that would weaken or undermine their case must be exchanged. If an attorney fails to do this, or suppresses evidence, then there will be a mistrial. Plus, the attorney could also be disbarred.
Admissible vs. Inadmissible Evidence
Third, once the evidence has been gathered, the courts determine which evidence is admissible and which is inadmissible. For example, if police raided the defendant’s home without a search warrant, any evidence gathered from that search would stand inadmissible. Other reasons for inadmissible evidence include:
- Irrelevant – the evidence does not pertain to the crime.
- Unreliable – the evidence does not come from a trustworthy source. For example, a heavily impaired witness saw the crime.
- Hearsay – related to unreliability, evidence based on second-hand information. For example, “Someone told me Tom committed this crime.”
- Police misconduct – evidence police gathered unlawfully (without probable cause, planting, illegal search, etc.).
- Coerced confession – evidence gathered if you did not voluntarily revoke the right to remain silent, or if police threatened physical violence against you.
Once the prosecution and defense can agree on the evidence, the trial can begin.