What is Discovery in a Criminal Case?

Discovery is the process and practice of disclosing information (such as police reports, squad video, etc.) between the prosecuting attorney (sometimes known as a State’s Attorney) and your defense attorney as it relates to potential evidence which they (the State) intend to present at a hearing or a trial (and use against you in the prosecution of your criminal or traffic charge). In general, discovery in felony cases is directed by Illinois Supreme Court Rules 412 through 415, but federal and state case law (which means past cases that have been reviewed and decided by higher courts) also provides helpful instruction for all criminal cases.

In misdemeanor criminal cases, case law imposes different requirements than felony cases as they relate to these discovery requirements. What you are entitled to in a misdemeanor case is governed by a case called People v. Schmidt and so misdemeanor discovery is generally referred to as “Schmidt Discovery” as a result. What you’re generally entitled to includes 1) a list of witnesses that the State intends to call at trial, 2) a copy of any confessions, and 3) any exculpatory evidence in their possession (which is evidence that may tend to prove or suggest that the defendant is not guilty). In DUI cases involving a Statutory Summary Suspension and in hearings on Petitions to Rescind Statutory Summary Suspension, the Civil Rules of discovery (rather than the Criminal Rules) apply.

What is the Purpose of Discovery?

The purpose of discovery is to prevent any surprises during or right before a hearing or trial. Unlike what you may see on television (we now call a “surprise witness!), current discovery rules are designed to prevent any surprise testimony and last-minute physical evidence from being divulged for the first time during a hearing or trial. The discovery rules seek to even the playing field by requiring the parties to disclose evidence they intend to use so that each party can prepare for the hearing or trial appropriately.

In addition to preventing surprises, efficient discovery practices may help the parties narrow the issues and negotiate a resolution before ever having a hearing or trial. When the parties can see all the evidence that will be used against them at trial, they have a better opportunity to make informed decisions about the relative strengths and weaknesses of their case.

What Kinds of Evidence Must the State Share?

There are many kinds of potential evidence that both sides of a case might present at a hearing or trial. Some of the more common types of evidence include video surveillance footage, audio recordings, police bodycams, squad car video footage, police testimony, witness testimony, DNA analysis, fingerprint analysis, police reports, photographs, expert reports, expert testimony, and actual tangible objects.

Under Illinois Supreme Court Rule 412, the prosecutor must provide specific types of evidence to a defendant aka “the accused.” (Note: This is not an exhaustive list. For a full list, please see the applicable rule). Such types of evidence include:

  • A list of witnesses that the State intends to call at trial, along with their relevant written or recorded statements.
  • Any written or recorded statements made by the accused or by a codefendant along with a list of witnesses to the making and acknowledgment of such statements.
  • A transcript of portions of the grand jury proceedings which contain testimony of the defendant and relevant testimony of any witnesses that the prosecution intends to call at a hearing or trial.
  • Any reports or statements of expert witnesses and a statement detailing the qualifications of the expert.
  • Any documents, photos, papers, or tangible objects which the prosecution intends to use in the hearing or trial, or which were obtained from or belong to the accused.
  • Disclosure about whether information was gathered using informants or surveillance methods.

What Kinds of Evidence Must the Defense Share?

The defense is also required to disclose certain information to the prosecution under Illinois Supreme Court Rule 413. (Note: not verbatim or an exhaustive list, please see the applicable rule). Such types of evidence may include (if ordered by the Judge):

  • Requiring the accused themselves to:
    • Appear in a lineup.
    • Speak for identification by a witness to an offense.
    • Be fingerprinted.
    • Pose for photographs not involving reenactment of a scene.
    • Try on articles of clothing.
    • Permit the taking of samples of blood, hair and other materials of their body which involve no unreasonable intrusion thereof.
    • Provide a sample of their handwriting; and
    • Submit to a reasonable physical or medical inspection of their body.
  • Produce Medical and Scientific Reports and statements of expert witnesses which the defense intends to use at a hearing or trial.
  • Produce a list of defenses which may be used at hearing or trial and include:
    • A list of witnesses as well as their written or recorded statements
    • Any books, papers, documents, or tangible objects intended to be used as evidence.
    • If any alibi defense is raised, specific information as to the place where the defendant maintains that they were at the time of the alleged offense.

The State Must Share Evidence That Helps the Defendant

Generally, the prosecution must also tender evidence favorable to the defense as part of discovery. The prosecution also has a duty to preserve evidence material to a defense. Under Brady v. Maryland, 373 U.S. 83 (1963), it is a violation of a defendant’s right to due process if the prosecution withholds evidence that is favorable to the defense and material to guilt or punishment. “Material” means that there is a reasonable probability that its disclosure would have changed the result of the trial.

The disclosure requirement therefore includes exculpatory evidence as well. Exculpatory evidence is any evidence that tends to show that the defendant is NOT guilty. For example, exculpatory evidence could be a DNA analysis report of DNA found at a crime scene that does not match the victim or defendant’s DNA.

Illinois Supreme Court Rule 415 also guides the Court in settling discovery disputes as they arise. In part, Rule 415 prohibits either party from preventing any persons with relevant information from coming forward or from impeding the opposing party’s investigation. The rule also imposes a duty of continued disclosure if additional relevant information is discovered.

What Information may not be Discoverable?

The Court may use Protective Orders to prevent certain private information from being disclosed and can provide an appropriate time and place for a permitted disclosure of that evidence.

In a situation where discoverable material is mixed with material that is not discoverable, the Court may order an Excision of the non-discoverable material and seal, impound, and preserve the whole piece of evidence in case of an appeal.

If necessary, the Court can allow a showing of certain evidence “in camera” – or in chambers (in the Judge’s office). If this is done, a complete record of the showing shall be sealed, impounded, and preserved in case of an appeal.

Attorney work product is an attorney’s mental impressions, observations, and subjective thoughts about the case. This is very rarely considered discovery evidence and is not required to be shared with the opposing side.

How is Discovery Shared?

Discovery is a continual process that starts at the very beginning of a case. When a crime is first investigated, police start the task of collecting evidence of the crime. They will often talk to witnesses, take photographs, record video footage, write reports, and collect any tangible evidence. This is sometimes done before a suspect has even been arrested.

The evidence is then secured and stored at the police department until the prosecuting attorney or defense attorney requests the evidence be made available to them. Once the evidence is sent to an attorney, Illinois rules of procedure may require that attorney to give a copy of all the evidence to the opposing attorney. Generally, however, the police collect the evidence, then they share it with the prosecutor / State’s Attorney, who then shares it with the Defense Attorney.

Notions of fairness prevent either side from dumping relevant evidence on the opposing party right before a hearing or trial. That, however, does not mean that all of the discovery evidence necessarily gets shared right away. The time required to process and gather evidence can vary. Gathering and sharing evidence can be as simple as a single email exchange or other times the process can take months or even years depending on the circumstances.

Once both sides believe that all the evidence has been collected and shared with each other, the attorneys will review the evidence and develop case strategies and theories for how to proceed most favorably for their client. This is a critical phase in all cases where the most important decisions are made based upon the evidence that is available for us at the trial. At this stage, a defendant may decide to demand a trial or negotiate with the prosecuting attorney in an attempt to negotiate a resolution agreement or a plea bargain.

Are There Any Legal Remedies for Discovery Misconduct?

The remedies may range from preventing the offending party from being able to use certain evidence at the trial to entirely dismissing the charges against the defendant. The Court can also consider ordering a party to tender the discovery at issue, grant a continuance, or enter any other order as the court deems necessary under the circumstances.

The Court can also impose sanctions on a particular attorney for a willful violation of a discovery rule or order. In addition, the Court retains its power to enforce its own orders through contempt proceedings if necessary.

If certain evidence is excluded based upon a discovery violation, it can sometimes mean the difference between guilty and not guilty. For instance, in a prosecution for possession of a controlled substance, if the Judges refuses to allow evidence that the police lab confirmed the unknown substance to be methamphetamine, the State’s Attorney will almost certainly be unable to prove the charges against the defendant.

How Does Discovery Become Evidence at Trial?

Once the parties have completed the discovery process and the Court has ruled on any discovery issues, the parties still must formally submit the evidence at a hearing or trial. So, once the relevant evidence is identified and a foundation is laid (which means demonstrating to the Judge that this piece of evidence can be trusted to be real and reliable), the Court can then allow an item of discovery to become actual evidence to be considered in the trial dispute. The parties and Court will look to the Rules of Evidence to determine the appropriate arguments for or against qualifying an item offered as evidence for use in a hearing or trial. Once something is admitted as evidence in a hearing or trial it can then be used by the trier of fact (the Judge or Jury) in considering the outcome of a case.

Speak to an Experienced Criminal/Traffic Legal Team

Since 1990, the experienced attorneys at Mitchell S. Sexner & Associates LLC have been representing criminal and traffic clients in areas such as DUI, Theft, Battery, Weapons, Drugs, license reinstatement and police brutality. Mr. Sexner is an experienced former State’s Attorney, and all members of the legal teams have long track records of successfully representing clients and winning trials. Call us for a free initial consultation at (800) 996-4824.

Written by Mitchell S. Sexner Last Updated : October 20, 2023