What is the Discovery Process in a Criminal Case?

September 16, 2019 by Anastasiia Ponomarova in California  Criminal Defense  
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What is the Discovery Process in a Criminal Case?

Discovery is the process by which evidence is exchanged between the criminal defense attorney and the prosecution prior to court or trial. The exchange of evidence is an important component of a criminal investigation and trial preparation.

“Discovery helps both sides gather evidence and avoid surprises in court”

The process provides pertinent information allowing each side to prepare for their case strategy. During the formal process, discovery helps each side reach reliable conclusions about the case efficiently. Most importantly, sufficient discovery is a crucial factor in the criminal defense’s approach to proving their case in courtroom.

During discovery, the criminal defense attorney can:

  • Collect evidence and facts;
  • Get witness statements informally;
  • Get witness statements in a deposition (writing);
  • Find out what the prosecution will say;
  • See how strong the prosecution case is;
  • See how good your own case is; and
  • Gather information, prepare a strong strategy/case.

Adequate discovery laws provide for a more fair and accurate criminal justice system with the timely provision of all information collected by both the police investigators and prosecution in all California criminal cases. This is a crucial step when the freedom and, sometimes, even the life of the defendant is at stake.

Types of Discovery

Informal discovery/investigation

Informal investigation involves collecting all possible information, independently with the help of other people. Such information may include:

  • Interviews with witnesses
  • Obtaining and gathering of documents from government agencies, police, doctors, etc.
  • Photos from the scene of the accident, damaged property and other objects.

Since it is not formal, you may not be able to use all the information gathered during the investigation, but it will help you prepare your case.

Formal discovery

Formal discovery is a legal process that is used after the case is brought to court. In this case, there several main pieces of information shared, namely:

  • Witness Information- Prosecution and Defense share with one another witness information (names, statements and reports)
  • Evidence – Prosecution and Defense share with one another all hard evidence (physical evidence, as opposed to statements)
  • Exculpatory Evidence – Prosecution turns over any exculpatory evidence (evidence favorable to the defense)
  • Witness Background – Prosecution informs the defense of any felony convictions that witnesses have that will impeach their credibility
  • Recorded Statements – Prosecution supplies the defense with ‘relevant’ recorded or written statements.

During the discovery process, lawyers may object to all of the above points. But if the other side does not agree with the objections and insists on getting the requested information, he or she can file motions in court to ask a judge to decide the discovery issues.

Important Elements of Discovery

Open-File Discovery

Under open file discovery, a defendant should have access to the prosecutor’s entire file and there should never be any surprises at trial. Open file discovery is also the only means by which the state can guarantee due process to defendants.

Timing of Discovery

Discovery rules should provide early access to information so that each party can properly use evidence for the court. Discovery rules should confirm the permanent obligation of the police, prosecutors, agents working on behalf of the accused, to provide all new material to be disclosed as it proceeds.

Certification of Discovery

Certification creates a report on what information the parties exchanged between themselves. The district prosecutor’s office submits a discovery certificate to the court during pre-trial procedures, which indicates when and how the delivery occurred the exchange of evidence.

What Information is Shared in the Discovery?

Mandatory ‘open-file discovery’ leads to a more efficient criminal justice system that better protects against wrongful imprisonment and renders more reliable court proceedings overall.

A police report is the most common example of discovery. A typical one contains:

  • Names of any witnesses or victims;
  • Reports of statements by such people;
  • Observations by the officers, etc.

Other forms of discovery also can be include, but certainly aren’t defined to:

  • Recordings of police interviews of victims, witnesses, and defendants;
  • Photographs of alleged crime scenes or people involved in that events;
  • Police personnel records, medical records relating to injuries, toxicology results and witnesses’ criminal records, DNA evidence, etc.

An open, healthy discovery process helps to make the legal system more transparent by increasing disclosure, and ensures fair court proceedings by allowing each side in a trial to adequately prepare their case.

Alternatively, an inadequate discovery process threatens the reliability of the outcome in criminal cases and can also undermine a defendant’s right to due process. Adequate discovery can also mitigate bad evidence such as eyewitness misidentification and false confessions. Expanded discovery allows the defense to vigorously challenge evidence and increases the likelihood that misleading or exculpatory evidence will be taken into consideration.

Additionally, while expanded criminal discovery laws help ensure a more fair and accurate legal system, criminal defense attorneys in jurisdictions with more open discovery rules report a more efficient process, with fewer mistrials, reversals and retrials, and more cases resolved earlier. In short, open-file expanded discovery enhances judicial efficiency.


Please keep in mind that despite some things prior to court seemingly being stacked against the accused in a criminal case, the American Criminal Justice System is based upon the assumption of innocence before proven guilty. Because defendants are presumed innocent until convicted in a court of law, the prosecution bears the burden of proof.

If you have recently been arrested for any criminal offense, or are under investigation for a crime, please don’t hesitate to call us for a free, no-obligation consultation with Seppi Esfandi. During your call, Mr. Esfandi will hear the details of the case and advise you on the best approach to defend yourself.

Call Us for a FREE Case Review: 310-274-6529

Seppi Esfandi is an expert in Criminal Law who has over 20 years of practice defending a variety of criminal cases.

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How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

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