Criminal Defense Attorney in Michigan Explains Discovery
If you are involved in the criminal courts you might feel like you’ve entered an alien space. The lawyers and judges all behave differently than “normal life.” They also use a lot of words you may have never heard. Words you have used might be used in a new and different way. An example is the word “discovery.” We all know what the word means in normal life. But it means something totally different in the criminal courts.
Discovery and Burden of Proof
In every criminal case the government has the obligation to prove the elements of the crime charged beyond a reasonable doubt. All criminal courts in Michigan apply this same Constitutional standard. The same is true for all criminal charges, including drunk driving, all sex crimes, drug crimes, white collar crimes and many others.
This is the way the criminal justice system works in the State of Michigan. Reasonable doubt is a standard of evidence. It’s the highest standard in our system of laws. It is not proof beyond all doubt. What makes this complicated is there is no standard definition of reasonable doubt. In fact, different states use different definitions. The important thing to know is that it is a very high standard of proof.
Prosecuting attorneys understand that they should not bring cases unless they have enough evidence. Michigan criminal defense lawyers understand their role is to show that this high level of evidence is lacking.
To meet this burden of proof the government must produce evidence in support of their case. This evidence usually consists of:
- The narrative written police reports prepared by the investigating officers,
- any video or audio recordings of the accused or any witnesses,
- written witness statements,
- any tangible evidence such as murder weapons,
- any forensic evidence such as toxicology or fingerprint reports,
- ballistics evidence, and
- anything else that the prosecutor has in his or her possession that can or will be used to support their claim that a crime was committed.
How Does Discovery Work in Criminal Cases?
Michigan criminal procedure provides that the prosecutor has an obligation to provide the defense with all their evidence prior to trial. In this context, the term “discovery” is used by lawyers and judges as a verb. The verb “discovery” broadly refers to the process used to obtain copies or access to the prosecutor’s evidence.
For example, the court may ask if “discovery is complete” to which the attorneys may response “discovery is ongoing.” The term discovery is sometimes also used as a noun to collectively refer to the evidence. Discovery is the total body of written, physical, or digital evidence. In this instance the prosecutor may tell the court that they have provided all of the “discovery” to the defense.
The discovery process usually begins with a written discovery demand prepared by the defense attorney and served on the prosecuting attorney. There are other methods of obtaining discovery as well. For example, Freedom of Information Act (FOIA) requests may be sent directly to law enforcement. When necessary the FOIA request can be sent to third parties such as the Michigan State Police forensic laboratories in Lansing.
What Happens if the Prosecutor Withholds Evidence?
The vast majority of prosecuting attorneys are good hard working people. They try to do their job the best they can. They try to be fair and work together with the prosecutor toward a fair result in court.
There are some prosecutors that are not fair. They do their best to get a conviction in every case. No matter what. One prosecuting attorney in Michigan is famous for saying “it’s easy to convict the guilty. The challenge is convicting the innocent.” Prosecuting attorneys like this are the exception. It is prosecutors like these that do bad things such as keep evidence back from the defense attorney. They may also destroy evidence before it gets turned over. In these cases an aggressive criminal attorney will fight back.
Prosecutors don’t always provide all of the discovery all at once. Often the prosecutor will respond to initial written discovery demands by providing only some but not all the evidence. If the defense attorney believes that discovery is incomplete, it may be necessary to file with the court a written legal argument, called a motion. The purpose of the motion is to get an order making the prosecutor turn over the missing evidence.
Once the order for discovery is obtained it is then served on the prosecutor. The prosecutor must then provide the evidence to the defense. A failure to provide evidence in response to a discovery order can lead to the case being dismissed. Short of that, other sanctions may be being applied. Aggressive criminal defense lawyers know to hold the prosecutor responsible and will obtain discovery orders when necessary.
The best criminal defense attorney will also seek to obtain a court orders making sure the prosecutor doesn’t destroy any evidence before the lawyer gets a hold of it. A defense attorney would try to get such an order based on the belief helpful evidence could be destroyed prior to trial.
An example of when preservation of evidence is helpful is when there has been an automobile accident. The automobile will not be turned over to the defense. Instead, it will be held in an impound lot. However, sometimes the insurance company will take the car to sell it for scrap.
Otherwise the evidence might be held apart for recovery by any insurance agencies involved or other third parties. Sometimes the defense can’t get access to the car without court intervention.
What is Reciprocal Discovery in a Criminal Law case?
The rules of discovery in Michigan provide for “reciprocal discovery.” This means that any evidence obtained by the defense right must be disclosed to the prosecuting attorney also in advance of trial. This means that any favorable evidence known to the defense must be turned over to the prosecuting attorney.
This could include a report written by an expert witness in support of their case. Another example might be favorable written witness statements prepared by a criminal defense attorney’s detective.
How to Keep the Prosecuting Attorney From Using Harmful Evidence
The top criminal lawyers in Michigan will also try to keep a prosecutor from using harmful evidence. Arguments can be made that some using some evidence is against the rules of evidence. If the defense attorney believes should not be shown to the lawyer might try to get the judge to keep the evidence out.
This might be because the defense attorney believes that the evidence was unlawfully seized. The lawyer may argue that there is another reason the evidence should be suppressed, meaning excluded from evidence. The most commonly excluded evidence would be confessions that are unlawfully obtained or evidence that was seized in violation of the accused 4th amendment constitutional rights.
Often, the most difficult evidence for the defense is scientific evidence. In an intoxicated driving case like DUI or OWI this might include breath or blood tests. In a sexual assault case DNA evidence may exist. If the charge involves alleged possession of CSAM or child pornography there may be a forensic evaluation of cell phones or computers.
Other kinds of scientific evidence might include fingerprint and ballistic evidence. Your attorney may seek to have this evidence suppressed (thrown out) on the theory that it is unreliable. In a breath test case the defense may argue that the administrative rules were not followed.
In a criminal sexual conduct case, such as rape, the defense may argue that the DNA was or has been contaminated. This means the evidence unreliable and should not come in to evidence at trial. These challenges can be brought more easily since the instantiation of the Daubert standard in the federal and state rules of evidence. However, reliability challenges are subject to change as changes to the companion rule of evidence 702 is currently being reevaluated.
For example, the criminal defense attorneys at the Barone Defense Firm all have extensive training in the applicable science. Having such training is a necessary prerequisite to a successful challenge tot he scientific evidence, called a Daubert challenge.
How do Michigan’s Top Criminal Defense Attorney’s Use the Discovery Process to Win Your Case?
Obtaining discovery is one of the most important aspects of the defense attorneys’ representation in the case. The top criminal defense attorneys know exactly what discovery to search for. They also know how to properly prepare FOIA demands.
When helpful the best criminal defense attorneys knowing the best private investigators. They also know how to challenge proposed evidence. These are all things that set apart the best criminal defense attorneys in Michigan.
This is because the discovery in a criminal case defines the evidence that will be used in trial. Carefully reviewing the discovery will help the defense attorney determine whether the prosecutor will be able to meet their burden of proof at trial. This will help the defense lawyer explain the chances of success at trial.
To understand how the lawyers at the Barone Defense Firm help client’s make the trial/no trial decision, see: Michael Boyle Explains How He Will Help You Decide if Trial is Your Best Option.
Good discovery obtained by the defense or faulty, inadmissible or unreliable discovery held by the prosecutor can lead to cases being significantly reduced or even dismissed. The right lawyer can use the discovery process to increase your chances in court and to obtain the best possible plea bargains.
Finding a Top Criminal Defense Attorney Near Me
Now that you understand the discovery process in a criminal case, you might be ready to start looking for a top criminal defense attorney. from the above it should be clear that the right attorney can make a big difference in the discovery process. This in turn can make a big difference in any plea negotiations. Also, potential outcome at trial.
At the Barone Defense Firm we’ve put together a team of top lawyers who can help you win your case. Together we have close to 100 years of experience. One of our lawyers, Keith Corbett, is a former prosecutor. For more than 30 years he worked as an Assistant United States Attorney in the Eastern District Court. Before that, he was an Oakland County Prosecutor.
Patrick Barone, the Firm’s founder, has over 30 years of criminal defense experience. He’s handled 1000s of clients in both the State and Federal Courts.
We offer free initial case evaluations. When you call the office we take the time to get to you know you. We want to know your special life circumstances. We also want to know what’s most important to you. After we talk we will match you with the best lawyer to handle your case. We offer payment plans and take credit. Call today and find out how we can help you win back your life.
For information about Federal discovery, please see: What is Discovery in the Federal Criminal Law System?