Written by attorney Mitchell Scott Sexner

Police reports and video in an Illinois DUI

The types of evidence you and your lawyer are entitled to receive will depend on what type of case you have. If a person is charged with a felony, there is a statutory right to discovery. In misdemeanor cases, there is not a statutory right to discovery so disclosure is much more limited than in felony cases. Discovery rules for felony cases are much more stringent because generally the consequences of felony charges are so much harsher than misdemeanor charges.

In felony cases, once a defense attorney presents a written motion for discovery, the prosecution is obligated to provide any material and information in its possession and control that might be used at trial. Such materials include police reports, video and audio recordings, witness statements, and hospital reports. Scientific reports such as lab results and DNA tests are also subject to disclosure. The prosecution must provide the names and addresses of any possible witnesses so that the defense can properly prepare for trial. If the prosecution fails to disclose material and relevant information in felony cases, then the defense can file for sanctions and even have evidence barred at trial. In Illinois, discovery in felony cases is reciprocal meaning that the defense also has an obligation to provide material information to the prosecution. Ultimately, upon a ruling of materiality and reasonableness, the court can order either side to produce additional information not covered by law if the court deems it necessary.

As mentioned earlier, in misdemeanor cases there is no statutory right to discovery. The prosecution is not required by law to provide anything to the defense. However, case law and precedent have firmly established that individuals charged with misdemeanors are entitled to certain materials to assist in preparing for their defense. Generally, the defense is entitled to police reports and possibly any video recording if they exist at all. The defense attorney may also have to issue a subpoena duces tecum to obtain other materials and information that may not be possessed by the prosecution. Video and audio recordings, scientific reports and lab results such as DNA and hospital records are just some of the items that can be obtained through a subpoena. A subpoena duces tecum is a useful tool for the defense to utilize especially if the prosecution is slow in providing discovery materials. A subpoena can be served directly on police agencies as well as private entities and individuals to compel them to produce relevant information. In short, in misdemeanor cases, the defense must be more creative and proactive in obtaining relevant and helpful information because the prosecution is not under any statutory obligation to do so.

Additional resources provided by the author

If you, a family member or friend has been charged with any criminal or traffic matter, we urge you to contact an experienced attorney. Such an attorney will carefully evaluate your case and explain the legal options available to you at no charge.

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