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Can a public defender withhold their client's discovery from them?

California |

My husband was recently arrested and facing criminal charges. We can’t afford a paid attorney at the moment, so he was appointed a public defender. The DA wants him to plea guilty to something he didn’t do. My husband asked his public defender to see his discovery, but the PD refused to show my husband. The PD said that if he wants to represent himself then he will. Does the public defender have the right to keep the discovery from my husband?

Attorney Answers 3


  1. absolutely not. The discovery technically belongs to the defendant, not the attorney. A call to the Board of Overseers could clarify this, or you could send a letter to the clerk of courts and tell them that the PD will not give you the discovery and that you want another attorney to represent you.


  2. My colleague, Mr. Weinstein, is not correct, at least not in CA. Discovery contains all sorts of information, some of it confidential. Police reports, for example, are not to be given to the defendant, unless all witness identifying information is redacted. Moreover if your husband is in custody there may be a reluctance on the part of the PD to risk having the discovery circulate around the jail as it always does when you give it to the defendant. He should meet with the defendant and show it to him but he does not have to give him anything.

    Watch out for Maine attorneys guessing on CA law issues.


  3. Mr. Kaman is correct. The PD actually is NOT allowed to give the discovery over to the defendant unless it is a redacted copy. Sometimes, the amount of information that would need to be redacted is unreasonably burdensome and makes it impractical or impossible to do, thus making it impossible to turn over to the defendant. Your PD would certainly not withhold discovery intentionally or maliciously. It is likely that there is just too much personal information in the discovery that would be too difficult to redact.

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