Your criminal discovery obligations

Reciprocal discovery and notice of defenses

A request for discovery from the prosecutor triggers reciprocal discovery obligations.

Also, your criminal defense attorney might be required to give notice of certain defenses, such as alibi or insanity.

Usually, when a court imposes onerous reciprocal discovery obligations on the defense it does so in the context of a pre-trial order that likewise forces the prosecution to disclose much more of its case than is customarily required (e.g., witness lists, witness statements, or designation of trial exhibits).

When your defense attorney asks for extra disclosure from the prosecution he will weigh the value of the additional insight into the prosecution case against the cost of disclosing your defense. For example, your attorney may consider the following questions:

  • Are you in the dark about the prosecution’s strategy and likely witnesses, or do you have a good idea of what their evidence will be through document discovery, informal discussions with the prosecutor and your own investigation?
  • Are your witnesses such that if disclosed pre-trial the prosecution will be able to intimidate them or excavate damaging information about their credibility?
  • Does your defense depend on the element of surprise, or, like most defenses, is it the only feasible one in the circumstances, one that any competent prosecutor would anticipate?

The court cannot force you to commit to testifying or not, and your attorney cannot be forced to preview your testimony. Where you have not made any statement to the authorities, and your attorney plans on having you testify, early disclosure of the prosecution’s evidence may enable your attorney to mold his trial strategy to anticipate and meet the worst of the evidence.

No requirement to disclose harmful evidence

You do not have any obligation to disclose evidence harmful to your criminal case. Your criminal defense attorney may hide incriminating evidence safely away in his files so long as it is not contraband.

Furthermore, absent a rule commanding it, a trial court cannot order the defense to produce impeaching and rebuttal evidence to the prosecution before trial.