December 27, 2011 | Uncategorized
You have a right to see the evidence in your case. This is called the discovery process in a criminal case.
A request for discovery will ask for records and information specific to your DUI case whether it is a breath test, blood test, urine test, or refusal. It will also include the following basic information:
1) All police car and police station video and audio recordings relevant to the defendant’s arrest, charge, or processing.
2) Written summaries of any oral statement, or copies thereof, made by the defendant to a prosecuting attorney or to any law enforcement officer.
3) Recorded testimony of the defendant made before a prosecuting attorney or to any law enforcement officer.
4) Pursuant to Crim.R. 16 (c): Books, papers, documents, photographs, tangible objects, buildings or places, or copies of portions thereof, available to or within the possession, custody or control of the state, which are material to the preparation of the defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belonging to the defendant.
Pursuant to Crim. 16(d) Reports of examination and tests: which states; “Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, made in connection with the particular case, or copies thereof, available to or within the possession, custody or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney.”
Now, once you request this information the prosecutor will typically give your attorney what they have from the police. This may or may not be everything that you want to see.
The benefit of evaluating all of the evidence is that you can identify defects in the state’s case. If you are able to show a defect on just one element of the offense against the defendant, the State will be unable to get a conviction against you at trial.
As previously discussed, you have a right to this information. Is it important? Yes. Can there be risks in pushing for it? YES!
One risk of getting the evidence at all costs is that the prosecutor may refuse to offer a plea. It may also cause a plea to come off the table if one has been previously offered.
The prosecutor may also tell you that they asked the police for the evidence, and you have what was sent to them. You are welcome to call the cops for more.
If you call the cops and they happen to remember something bad about that arrest, like the defendant was uncooperative, they may call the prosecutor and object to any plea. They may also find some info that they forgot to send to the prosecutor that is going to further help the prosecutor fix a defect in their case. This can also uncover a hostile witness they were previously unaware of.
What your attorney can do that you cannot is have a working knowledge of the process, the cops, and the prosecutor in your case. He or she will know how to deal with each in regard to the facts of your particular case.
One other note is that most police are trained to send information a defense attorney requests to the prosecutor’s office and NOT the defense attorney only. At the very least you should expect that a copy of what you received will be sent to the prosecutor in the case for good or bad.
It is very important for a lawyer to know why he is requesting information in a case, its importance, and what it is expected to show. This means thoroughly discussing the facts of the case prior to filing for discovery or it could cause more damage than good.
And remember, if you or a family member has been arrested for DUI in the Akron Area – including: Summit, Portage or Stark Counties – give our office a call at 330-564-1126….24-hours a day, 7 days a week. Because now is the perfect time to put a team that includes a former police officer and three former prosecutors to work….for you!