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What is 'Discovery' in a Criminal Case?

Posted by attorney Elisabeth Pasqualini

By Shaffer & Engle Law Offices, LLC posted in Discovery on Wednesday, April 17, 2013

'Discovery' is the disclosure of evidence that will be used against the accused at trial or may be used by the accused to defend themselves.

By ** Attorney Elisabeth K.H. Pasqualini**, Criminal Lawyer, Harrisburg, PA

In Brady v. Maryland, 373 U.S. 83 (1963), the United State Supreme Court held that a criminal defendant has a constitutional right to obtain evidence that is exculpatory in nature. Any evidence that tends to show that the accused did not commit the crime(s) charged, must be disclosed by the Commonwealth. To demonstrate a Brady violation, Appellant must show that: (1) the prosecution concealed evidence; (2) which was either exculpatory evidence or impeachment evidence favorable to him; and (3) he was prejudiced by the concealment. To show prejudice, he must demonstrate a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Com v. R. Simpson, 493 CAP (PA Supreme Court, March 26, 2013).

Pennsylvania Rules of Criminal Procedure Provide Guidance

Rule 573 embodies the requirements of Brady:

What's mandatory on the part of the Commonwealth?

  • Any evidence favorable to the accused that is material either to guilt or to punishment, and is within the possession or control of the attorney for the Commonwealth;
  • Any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made that is in the possession or control of the attorney for the Commonwealth;
  • The defendant's prior criminal record;
  • The circumstances and results of any identification of the defendant by voice, photograph, or in-person identification;
  • Any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control of the attorney for the Commonwealth;
  • Any tangible objects, including documents, photographs, fingerprints, or other tangible evidence; and
  • The transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recordings were obtained.

What's Discretionary?

  • The names and addresses of eyewitnesses;
  • All written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call attrial;
  • All written and recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not; and
  • Any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.

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