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Can the prosecuting attorney withhold evidence in a case, even after a motion for discovery has been filed?

Atlanta, GA |

I have a criminal charge against me. I have a court appointed attorney and I went to trail last week and we requested a motion for discovery; the prosecutor would not show me or my public defender all the evidence on the case. They stated there was a video surveillance along with the detailed policed report but the only evidence they provided to both me and my attorney were the detailed notes. Does this mean there is no surveillance video, and they are just trying to blow smoke since they know this may be the only thing holding this case together?

Attorney Answers 8


  1. Best answer

    You need to ask your lawyer, and if you aren't satisfied with his answer, hire someone else. If there is a tape of the circumstances leading to the arrest, and if you've filed a discovery motion, I believe you are entitled to see it.

    No attorney client relationship has been, or is being formed as a result of this response to your question. If you feel you need legal advice, you are strongly encouraged to retain an attorney and consult with that attorney about this issue.


  2. Your question deals with a very specific issue. Since you may still be represented, it is difficult for another lawyer to ethically, accurately and adequately advise you, particularly in light of the limited facts available. Talk to your lawyer. Demand an appointment. See for yourself what your lawyer requested and what was produced. Talk to the lawyer about how the trial may have been impacted if that evidence was available.
    Most importantly, talk about what appellate rights you hold and preserve those rights. There may be an issue for appeal.
    Good luck.

    The above is not a full and complete answer in that it is based on the limited facts known at the time of the answer. With that in mind, the above is intended as a starting point, not to be construed as legal advice. If after reviewing the answer you still have additional questions, please feel free to contact me through my office so we may discuss the matter more fully. I can be reached through our website at foxandsmith.com


  3. Mr. Smith is right; it is difficult to answer this question and advise you properly. I suggest you make it a point to meet with your attorney immediately and if there is any evidence that is being held by the State, request your attorney make the court aware of it properly.

    No legal advice is given here. My responses to questions on Avvo are never intended as legal advice and must NOT be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions & Answers forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. I am only licensed in the State of Georgia.


  4. Some evidence can be withheld under certain circumstances, but it is rather rare and usually frowned upon as you have a right to see the evidence against you before trial.

    James L. Yeargan, Jr. is licensed to practice law in the State of Georgia. All information given is based only on Georgia law, and is not directly applicable to any other jurisdictions, states, or districts. Any answer given assumes the person who asked the question holds a Georgia Drivers License, and this license is not a commercial drivers license (CDL). This response, or any response, is not legal advice. This response, or any response, does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information. Any state specific concerns should be directed to an attorney who is licensed to practice law in that respective state.


  5. I agree with my colleagues. There are instances where evidence can be withheld from you, especially if this is a misdemeanor. Your lawyer will know how to handle this issue.


  6. Because you are represented I cannot give you specific advise on you case under the ethics rules in Georgia. Also, because your question relates to a very specific fact issue in your case the best person for you to ask is - your public defender. If I were in your shoes I would do everything that I could to get an appointment with my public defender and have your questions answered. Many time the public defenders office is swamped with cases but you should do everything possible to have a meeting to discuss your case prior to trial. If you are unsatisfied with the attorney representing you, do everything in your power to get an attorney that you are satisfied with. Good Luck!!!
    George McCranie www.mccranielawfirm.com

    The information provided in this response to a question is not legal advise and is provided only for general information purposes. My response should not be taken as legal advise as no attorney / client representation exists. Additionally, the information given in this answer is specific to the State of Georgia only and should not be applied to any other state.


  7. As a general rule, if the video has been requested and it is in the possession of the prosecutor's office then the prosecutor is under an obligation to either provide a copy of the video or to make it available for your attorney to review.

    There are always exceptions to every rule, however, and without further information this may be one of those situations.


  8. Not so much. The rare exception is the identity of confidential informants, and then only if certain legal tests are met. Ask your lawyer to do a motion to compel discovery.

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