What is Discovery in a Michigan Criminal Case?

In every criminal case the government has the obligation to prove the elements of the crime charged behind a reasonable doubt. 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.

The law and rules of criminal procedure provide that the prosecutor has an obligation to provide the defense with access to and/or copies of all their evidence prior to trial. In this context, the term “discovery” is used by lawyers and judges as a verb that 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 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. Depending on circumstances, the investigating agencies involved, as well as the courts involved, discovery demands and or Freedom of Information Act requests may be sent directly to law enforcement or two third parties such as the Michigan State Police forensic laboratories in Lansing.

Often the prosecutor will respond to initial written discovery demands by providing only some but not all the evidence. Depending on the circumstances, if the defense attorney believes that discovery is incomplete, it may be necessary for the defense attorney to file with the court a written legal argument, called a motion, seeking an order for discovery. Once the order for discovery is obtained it is then served on the prosecutor (or whomever it may be that is in possession of the evidence) who is now compelled to provide the evidence. A failure to provide evidence in response to a discovery order can lead to the case being dismissed or other sanctions being applied.

The defense attorney may also determine that it is necessary to seek to obtain a court order providing that certain evidence be preserved. Such an order might be sought if the defense attorney believes that there is a threat that potentially exonerating evidence could be destroyed prior to trial. This may occur when, for example, there has been an automobile accident, and the automobile is being held in an impound lot or is otherwise sequestered for recovery by any insurance agencies involved or other third parties.

The rules of discovery in Michigan provide for “reciprocal discovery” which means that any evidence obtained by the defense right must be disclosed to the prosecuting attorney also in advance of trial. So, for example, if the defense attorney obtains report written by an expert witness in support of their case, or has had a detective obtain written witness statements in support of the defense, those written reports must be provided to the prosecutor.

The prosecutor may also have evidence that the defense attorney believes should not be shown to the jury. This might be because the defense attorney believes that the evidence was unlawfully seized or there is some other basis upon which the defense attorney can argue but 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.

As it relates to scientific evidence, such as breath or blood tests in an intoxicated driving case, DNA evidence, fingerprint evidence, etc., the defense attorney may seek to have this evidence suppressed on the theory that it is unreliable. In a breath test case the defense may argue that the administrative rules were not followed making the breath test result unreliable. In a criminal sexual conduct case, such as rape, the defense may argue that the DNA was or has been contaminated, again, therefore rendering the evidence unreliable. The applicability and tenability of these challenges has been reinvigorated 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.

Obtaining discovery is one of the most important aspects of the defense attorneys’ representation in the case. Knowing exactly what discovery to search for, how to properly prepare FOIA demands, knowing the best private investigators, and knowing how to challenge proposed evidence, are all things that set apart the best criminal defense attorneys in Michigan. This is because the discovery defines the evidence that will be used in trial and will help the defense attorney determine whether the prosecutor will be able to meet their burden of proof at trial. 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. For example, the criminal defense attorneys at the Barone Defense Firm all have extensive training in the applicable science, which is a necessary prerequisite to a successful Daubert challenge.

For information about Federal discovery, please see: What is Discovery in the Federal Criminal Law System?

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