What is Discovery?
Discovery is the evidence in a DUI or criminal case. It includes materials such as police reports, pictures of physical evidence, and sometimes video.
How do you get Discovery?
The prosecutor (state’s attorney) gives Discovery to your defense attorney. However, there is an Illinois Supreme Court rule that specifically states that attorneys cannot give evidence to clients.
In order to get Discovery, an attorney will first file his Appearance in Court. Once the Court has accepted an attorney’s Appearance, the attorney will make an oral or written motion for Discovery. Usually, in a misdemeanor case, the motion is orally made. However, in a felony case, an attorney has to make it in writing.
When does my Attorney get Discovery?
On a misdemeanor case, the prosecutor usually gives the evidence to the defense attorney on the first court date. However, I have had cases where it has taken up to two months to obtain it. However, on a felony case, evidence is usually not tendered until the second or third court appearance.
Can I see the Discovery in my Case?
Yes. In fact, I make sure every client sees all of the evidence and videos involved in his or her case. By involving the client, I can gain assurance that my client is completely up to date on the case.
Does the Prosecutor have to turn over Discovery that is favorable to me?
Not necessarily. Under the law, a defense attorney needs to file a “Brady Motion.” This motion specifically requests evidence that is favorable to the defense. Absent the defense filing this specific motion, the prosecutor could hold back evidence that can help you win your case.
Will the Judge see the Discovery?
No; it is for the prosecutor and defense attorney to use. The attorneys decide what parts of the evidence to present to the Judge. The Judge is not allowed to review any evidence unless one of the attorneys presents it to him or her. Likewise, the Judge is not allowed to read the police reports. The prosecutor or defense attorney can call the police officer to testify. However, they can use the police reports only to either refresh the police officer’s memory or impeach the officer. “Impeach” means to show that a person is changing his or her story. In other words, the person is not telling the truth.
Attorney Michael J. Young offers a free, no-obligation consultation to review your case. To review your case, call Attorney Young at (708) 410-0090.