Knowledge is power. In part, the knowledge used to get your case dismissed or prepare your case for trial comes from the discovery process – what is discovery in a criminal case?

For a person accused of a crime in SC, discovery means the information that the prosecutor is required to turn over – some information must be formally requested while other information must be turned over whether you ask for it or not.

For some prosecutors in SC, discovery is a fun game of hide and seek. Do prosecutors have to turn over evidence that helps the defense? What are the consequences if they don’t?

Below, we will look at the different types of discovery and how the process works.

Rule 5 Discovery in a Criminal Case

Rule 5 of the SC Rules of Criminal Procedure lists the types of information that must be provided when the defense requests it and the types of information that are not subject to the discovery rules:

(a) Disclosure of Evidence by the Prosecution.

(1) Information Subject to Disclosure.

(A) Statement of Defendant. Upon request by a defendant, the prosecution shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the prosecution; the substance of any oral statement which the prosecution intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a prosecution agent.

(B) Defendant’s Prior Record. Upon request of the defendant, the prosecution shall furnish to the defendant such copy of his prior criminal record, if any, as is within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the prosecution.

(C) Documents and Tangible Objects. Upon request of the defendant the prosecution shall permit the defendant to inspect and copy books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the prosecution, and which are material to the preparation of his defense or are intended for use by the prosecution as evidence in chief at the trial, or were obtained from or belong to the defendant.

(D) Reports of Examinations and Tests. Upon request of a defendant the prosecution shall permit the defendant to inspect and copy any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the prosecution, and which are material to the preparation of the defense or are intended for use by the prosecution as evidence in chief at the trial.

If the defense asks for it, the prosecutor must provide:

• Any statements that you made, whether they were written, recorded, or oral;
• A copy of your criminal history;
• Any documents or materials the prosecution intends to use against you at trial – including incident reports, supplemental incident reports, witness statements, audio or video recordings, maps, diagrams, or other evidence;
• The results of any tests conducted by the prosecution – including things like DNA test results, fingerprint comparisons, and other forensic tests.

Is there any evidence that the prosecutor does not have to turn over to you?

(2) Information Not Subject to Disclosure. Except as provided in paragraphs (A), (B), and (D) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal prosecution documents made by the attorney for the prosecution or other prosecution agents in connection with the investigation or prosecution of the case, or of statements made by prosecution witnesses or prospective prosecution witnesses provided that after a prosecution witness has testified on direct examination, the court shall, on motion of the defendant, order the prosecution to produce any statement of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified; and provided further that the court may upon a sufficient showing require the production of any statement of any prospective witness prior to the time such witness testifies.

Basically, anything that is covered by attorney-client privilege or the work product privilege does not have to be turned over. That may include the prosecutor’s notes or internal memos that would reveal the prosecutor’s strategy and thought process about the case or trial.

Is there ever a reason you would not ask for discovery in a criminal case?

Reciprocal Rule 5 Discovery in a Criminal Case

If you ask for discovery in a criminal case, you are then subject to “reciprocal discovery.” If you don’t ask for discovery, however, you have no obligation to provide reciprocal discovery to the prosecutor.

Once you have requested discovery under Rule 5, the prosecutor can then request that you turn over all evidence that you plan on using in your defense and the results of any scientific tests, reports, or examinations that you plan on introducing at trial.

Although rarely used, this is a strategic call on your attorney’s part – if you know that the prosecutor will not dismiss your case prior to trial and you have a “bombshell” that will give you an advantage at your trial, then you may want to gamble on not requesting Rule 5 discovery from the prosecutor.

On the other hand, you do not have to disclose evidence that you do not plan on using in your “case in chief.” If the evidence will be used only for impeachment of a state’s witness at trial, your attorney can hold your cards close and not disclose until the witness is on the stand…

How Long Does the Prosecutor Have to Turn Over Discovery Materials?

The rule says 30 days.

But, what’s the remedy if they don’t comply? Because SC courts rarely enforce the 30-day time limit on discovery, prosecutors will often turn over evidence late, turn over part of the evidence while holding the rest for later, or even attempt to dump boxes of discovery materials on your attorney the week prior to or even during trial…

Brady v. Maryland – Automatic Discovery in a Criminal Case

Under Brady v. Maryland, the prosecution is required to disclose all exculpatory evidence in your case – even if you do not request it. If they do not, it is prosecutorial misconduct.

Exculpatory evidence may include:

• Direct evidence of your innocence;
• Evidence that would tend to impeach the credibility of the state’s witnesses;
• Evidence that would impeach the quality or credibility of the state’s investigation;
• Any evidence that would tend to show you are not guilty of the offense; or
• Any evidence that would tend to mitigate the offense or your potential sentence.

Under Kyles v. Whitley, the prosecutor has a duty not just to give you what is in their file, but to seek out exculpatory information that is in the state’s possession – including other government agencies – and disclose it to you. They cannot say that they have an “open file” policy, but then leave all the exculpatory information in the police department’s file, for example.

Do prosecutors always turn over exculpatory evidence? Of course not – because convictions are rarely overturned based on prosecutorial misconduct, prosecutors are even more rarely disciplined by the Office of Disciplinary Counsel for violations, and prosecutors are immune from lawsuit (they have a license to commit malpractice on you), some prosecutors will willfully ignore or even maliciously hide exculpatory evidence that could have helped your case.

According to the Innocence Project, Brady violations are among the leading causes of wrongful convictions in the United States.

Charleston, SC Criminal Defense Law Firm

When the prosecution does not turn over the evidence in your case, we will ask the Court to force them to disclose what they have. In addition to filing Rule 5 and Brady motions seeking the evidence from the prosecutor, we will conduct an independent investigation to discover any evidence that the prosecutor either does not know about or is not disclosing…

If you have been charged with a crime in the Charleston, SC area, call criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or get in touch through our website to talk to a Charleston, SC defense lawyer today.