Welcome to our new weekly series, Friday Q&A. Each week our attorneys will respond to a question selected from the many received by direct and online submission. Have a question you want answered or topic you want to hear more about? Submit your suggestions to us by tweeting @TLOBJ or sending a message to our Facebook Page.

QuestionMy fiancée was charged with trafficking and he is in jail. At the bond hearing, I heard him asking his lawyer when he would get his motion for discovery. What does that mean?

Answer: “Discovery” in a criminal case refers to the exchange of evidence and statements between opposing sides of a case. Both the prosecution and the defense have a duty to provide discovery before trial. Discovery is mostly exchanged without participation by the Court or the Judge, so a “motion for discovery” or “the motion of discovery” is not a possibility because “motions” ask the Judge to take a particular action in the case.

Instead, discovery is exchanged by demand of the parties. Typically, a defense attorney will file a Notice of Appearance, informing the Court and the prosecutor of his or her role in the case, and a Discovery Demand requesting particular information. The prosecution then files a Discovery Response. The contents of the Discovery response – i.e., the police reports, statements, photographs, etc. – are not a part of the public record and are exchanged directly by the parties. Both sides have a duty to provide discovery, and to supplement what has been provided as new materials that may be used at trial become available.

The Ohio Rules of Criminal Procedure lay out the way to exchange discovery in a criminal case. Specifically, Criminal Rule 16 outlines the procedure for both the prosecution and the defense, including what kind of items must be available for inspection before trial. Those items include:

  1. Any written or recorded statement by the Defendant or Co-Defendants, including police summaries of the statements and grand jury testimony by the Defendant or Co-Defendants;
  2. Criminal records of the Defendant, co-defendant, and any record of prior convictions for any of the State’s expected or potential witnesses at trial;
  3. Laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings, or places (subject to some limitation due to privacy and safety);
  4. Results of physical or mental examinations, experiments, or scientific tests (subject to some limitation due to privacy and safety);
  5. Any evidence favorable to the Defendant and material to guilt or punishment;
  6. All reports from peace officers, Ohio State Highway Patrol, and federal law enforcement agents;
  7. Any written or recorded statement by a witness in the prosecution’s case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal.

Sensitive materials may be marked as “counsel only” meaning that only your fiancée’s attorney will be allowed to view them. However, the attorney is allowed to orally communicate the content of any “counsel only material.” In a trafficking case, for example, “counsel only” material may include the identity of a still active undercover agent or informant.

Any material the prosecutor does not disclose to the defense must be identified by the prosecutor in the discovery response. If the prosecutor certifies that information may jeopardize the privacy or safety of a witness, the defense attorney has a right to challenge that determination by asking the Judge to review the material and decide whether it should be disclosed or not.

Reviewing the disclosed discovery is a key part of a criminal defense attorney’s job – it is where constitutional and evidentiary issues are located, like statements taken in violation of Miranda or items seized without probable cause. Requests to exclude evidence are then briefed in the form of a Motion to Suppress Evidence, which brings any illegally or unconstitutionally obtained evidence or statements to the attention of the Judge and asks the Judge to determine if the evidence or statements can be used at trial, or if they should be “suppressed” due to the wrongdoing in collecting them.

Reviewing the disclosed discovery also means making note of what has not been provided. Some times prosecutors withhold evidence because it is harmful to their case or they don’t feel it is relevant. When the defendant or the defense attorney learns of the withheld evidence, the defense attorney can file a Motion to Compel Discovery listing items believed to be unlawfully withheld by the prosecutor. Skilled attorneys know what types of evidence should be available in each kind of case and will work to compel the prosecutor to disclose all the evidence, not just the evidence the prosecutor wants the defense attorney to know about. For example, in a drug possession case, the prosecution frequently withholds the details of the laboratory analysis of the substance. Lab errors can only be found through a thorough examination of the process of the testing, but many attorneys fail to ask for the full laboratory report. A Motion to Compel Discovery is the tool a skilled defense lawyer uses to ferret out that information.

Stay tuned for more discussion on Motions to Suppress Evidence and Motions to Compel Evidence in the coming weeks!