Uncovering Your Opponents Case

The Procedure for “Making Discovery”

In criminal cases, defendants have the right to obtain “Discovery”. With the Discovery information, the defendant can closely examine and analyze the prosecution’s evidence and prepare their defense.

In Colorado criminal cases, the right to Discovery is governed by Rule 16 of the Colorado Rules of Criminal Procedure.*

Discovery is the process which allows each side to examine the other’s evidence. Colorado criminal procedure requires the prosecution to make specific mandatory disclosures to the defense, which includes any police reports, witness statements, results of scientific tests, and expert opinions regarding the case. The defense may also request that the court order the prosecution to make additional, optional disclosures. For its part, the defense is obligated to provide certain information to the prosecution, e.g. the nature of defense or alibi, expert opinions about the case, and any medical or scientific reports to be used at trial.

An experienced Colorado criminal defense attorney is qualified to analyze and evaluate the evidence against the client and form an appropriate defense strategy. A defense strategy will include developing a theory of the case, filing pre-trial motions, conducting an independent examination and re-testing of the physical evidence, finding qualified expert witnesses to testify in your behalf, and gathering additional evidence to support the client’s innocence.

A good defense strategy serves multiple purposes. It is certainly indispensable in preparation for trial. However, it should also allow the defendant to take full advantage of any mistakes, irregularities, or rights violations on the part of the government. Moreover, proper tactics force the prosecutor to work hard each step of the way, encouraging him or her to dismiss the charges or settle the case on the defendant’s terms. It is important to keep in mind that trying the case is only an aspect of criminal defense, and one which can often be avoided with the help of a skilled attorney.

Colorado Discovery Law

Refers to the right of the accused person, or “defendant”, to obtain access to the information the District Attorney’s Office will rely upon to prosecute a case.

Entitles a defendant to purchase copies of all the police reports pertaining to the case, as well as any witness statements, reports of experts, photographs, and any audio or visual recordings that will be used to prove the case against a defendant.

District Attorneys have a duty – under the law – to provide all of the discovery in a case and the request is treated as a continuing request until a case is closed.

Colorado courts require the defense to make an informal request or demand for discovery before filing a motion with the court to seek discovery. Some courts and prosecutors’ offices provide a standard form for the defense to check what it wants and to serve upon the prosecutor.

Motion for Discovery

If your criminal defense attorney does not obtain what he wants, he may file a motion for discovery with the court.

The law on discovery is not favorable. However, many courts will exercise their discretion to order or encourage the prosecution to provide additional discovery or to provide discovery of some things sooner than otherwise obligated to do so.

Among the arguments that appeal to some courts’ discretion:

  • Your attorney cannot competently advise you on whether to plead guilty without having additional discovery, such as the witnesses’ or coconspirators’ statements. Having that material sooner rather than later may result in an earlier disposition of the case and conservation of the court’s resources.
  • This is not the kind of case in which you pose any danger to the witnesses.
  • Your attorney needs the discovery sooner rather than later to conduct factual investigation and file motions in limine regarding the evidence’s admissibility. If your attorney does not receive the material until trial starts, he may need a continuance to investigate.
  • Obtaining the materials well in advance of trial will enable the parties to focus the issues, reach stipulations and otherwise expedite the trial. This argument is particularly appropriate if the materials are voluminous.
Dealing With Voluminous Documents

In document-intensive cases, many prosecutors will provide access to all the documents they have, but this creates the needle-in-the-haystack quandary of finding the useful among the voluminous.

There are several solutions:

  • Your defense lawyer can request that the prosecutor designate which documents it will use. Some courts will order the prosecution to designate well in advance of trial those documents it intends to use or to provide a table of contents or description of classes of documents so your attorney knows where to look for the more helpful documents.
  • Your defense lawyer can request access to scanned electronic files. Prosecutors often will image documents and present them electronically at trial. The electronic images are not the original documents, and your attorney can argue to the prosecutor and the court that you should have access to the scanned electronic files sufficiently in advance of trial to decide whether to contest their authenticity and admissibility.
  • Your defense lawyer can request originals from which a summary was prepared. Prosecutors frequently offer summaries of voluminous documents at trial. The rule requires the proponent of a summary to make the originals from which the summary was prepared “available for examination or copying, or both, by other parties at reasonable time and place.” Some courts have indicated a preference for a hearing outside the jury’s presence to determine the admissibility of such summaries.
Colorado Criminal Law 0 Remedies for Criminal Discovery Violations

The remedy for the prosecution’s discovery violation depends principally on the harm it causes.

When detected before trial, an order to compel production of the evidence generally suffices.

If the violation comes to light mid- or post-trial, a mistrial may be justified if your defense attorney can prove that the use of the undisclosed evidence unfairly surprised you and interfered with your ability to fashion an intelligent defense strategy to respond to the evidence.

You are entitled to certain expert reports You are entitled upon demand to reports of:

  • Physical and mental examinations.
  • Scientific tests and reports.
  • Expert reports prepared in connection with the case.

Testimony from law enforcement officers regarding criminal modus operandi (e.g., the rules and structure of the drug trade, the meaning of code words, the structure of organized crime, the value of the drugs at issue and the inconsistency of possessing such an amount with a claim of personal use) falls within the expert testimony rules, and any reports are discoverable.

Colorado Criminal Law Obtaining Summaries of Expert Qualifications and Opinion

Some discovery rules compel the prosecution to provide a report or summary of the expert’s qualifications and opinion and the bases and reasons for the opinion. This avoids circumvention of the discovery rules by calling an expert who never prepared a written report.

Underlying Data for Expert’s Opinion

Your criminal defense attorney may request the underlying data, notes and materials used to create the report or arrive at the opinion. There are two grounds for such a request.

First,this information is needed so that you can have your own expert conduct tests and arrive at an independent opinion.

Second, the evidentiary rules mandate disclosure of the facts and data underlying an expert’s opinion, on either direct examination or dross-examination. Disclosure mid-trial not only poses the danger of unfair surprise to the opponent, but it might also necessitate delaying the trial for full disclosure of extensive materials and perhaps re-testing.

Prosecutor’s Obligation to Disclose Exculpatory Evidence in Criminal Cases the Brady Case: the Prosecutor Must Disclose Exculpatory Evidence

In a case called Brady, the Supreme Court held that the due process clause obligates the prosecution to disclose to the defense any material evidence favorable on the issues of guilt or punishment.

What is Exculpatory Evidence?

Evidence is exculpatory if it tends to disprove your guilt, whether by:

  • Showing your innocence.
  • Undermining the credibility of government witnesses.
  • Tending to mitigate the punishment.

This obligation (referred to as a Brady obligation) extends beyond searching the prosecutor’s own file to producing information possessed by police agencies which participated in the investigation or prosecution. The prosecution team will be charged with knowledge of a police officer’s criminality where the officer was part of the team, even if the officer concealed that criminal conduct from the prosecutor.

Arguing That the Evidence is Material

The materiality requirement is a constant obstacle to criminal defense attorneys in obtaining Brady disclosures. Evidence “is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome would have been different.” Most prosecutors, having filed charges and thus concluded that you are guilty, have difficulty seeing a probability that a piece of evidence will change the outcome.

There are two arguments that your criminal defense attorney can use to approach the prosecutor’s mind set:

  • The pre-trial context requires the prosecutor to err on the side of disclosure. The Supreme Court created the Brady standard of materiality in the context of appeals, evaluating the significance of the evidence against the totality of the trial evidence. No one can make this evaluation before trial. The prosecutor cannot predict with certainty how his own evidence will go in, much less the defense side of the case, and what impact the undisclosed evidence will have on the case as a whole. Therefore, a prosecutor should err on the side of disclosure.
  • Educate the prosecutor about the defense. Your attorney can educate the prosecutor about the defense so that he understands how a piece of evidence fits into an attack on his case. Although this approach risks surrendering the element of surprise, most defenses are apparent to any intelligent prosecutor. Most Brady inquiries seek information about the prosecutor’s own evidence and witnesses, such as cooperating witnesses’ uncharged misconduct, their initial exculpation of the defendant, or their lies to the prosecutor about their own culpability. In the usual case, you and your attorney lack any access to those witnesses and information. Therefore, you lose little by revealing to the prosecutor that you have heard that such information exists about the prosecutor’s own witnesses.
Demanding Brady Material

Under the federal Brady standard, the same test of materiality applies whether the defense made a general, a specific, or even no request. However, some states have held that under their state constitutions a specific Brady demand triggers a less demanding standard of materiality.

Nonetheless, in any jurisdiction your attorney might combine comprehensive Brady demands with more specific ones. The more specific the demand, the more likely you are to get relief from the prosecutor, the trial court, or an appellate court. Prosecutors often may not realize how a particular piece of evidence might fit into a defense. With a general demand a trial court will accept the prosecutor’s assurance that he has searched his file and found nothing exculpatory. However, when ruling on a specific request, the court may demand that the prosecutor answer whether or not he looked for and found that particular item.

So Called Brady Disclosures Continued…

Prosecutors frequently resist early disclosure of Brady impeaching material on the grounds that statutes forbid a court from ordering disclosure of a witness’s statements prior to trial.

However, a number of courts have ruled that such statutes do not control the timing of Brady disclosures. If the material is exculpatory, it must be disclosed sufficiently in advance of trial to be useful to the defense, and the trial court may order prompt pre-trial disclosure.

Rules of Professional Conduct

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently clarified that a Rule of Professional Conduct imposes duties on prosecutors far beyond the constitutional minimum. In particular:

  • A prosecutor must disclose any information favorable to the defense without regard to its impact or the prosecutor’s assessment of its credibility. “Nothing in the rule suggests a de minimis exception to the prosecutor’s disclosure duty where, for example, the prosecutor believes that the information has only a minimal tendency to negate the defendant’s guilt, or that the favorable evidence is highly unreliable.”
  • The ethical duty extends beyond admissible evidence to information that may lead to exculpatory evidence.
  • Evidence is exculpatory and must be disclosed if it supports any defense, whether or not one of factual innocence, and if it merely lessens the degree of guilt.
  • The disclosure must be early and full enough to enable the defendant to conduct a thorough investigation and to evaluate whether or not to plead guilty.
  • Supervisory prosecutors must supervise and train their line assistants in this obligation, including ordering subordinates to commit to writing favorable information conveyed orally and implementing procedures so that prosecutors communicate favorable information to the colleague responsible for disclosure.

Similarly, the U.S. Department of Justice promulgated Brady policies that mandate procedures beyond the constitutional minimum:

  • Prosecutors must conduct a thorough search of investigative agency case files, informant files, and, in some situations, the files of civil regulatory agencies, to discover and preserve information favorable to the defense.
  • Prosecutors and agents have an obligation to memorialize all witness interviews (rather than, as is common, create a summary report at the end of several interviews).
  • Information that “is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense” or that “casts a substantial doubt upon the accuracy of any evidence... or might have a significant bearing on the admissibility of prosecution evidence” must be disclosed “regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal...”
  • The disclosure obligation extends to “information” regardless of whether it is admissible evidence.
  • The information must be disclosed “reasonably promptly after it is discovered.”
A Production Order Allows Sanctions

Your criminal defense attorney may ask the court to enter an order that the prosecutor produce all Brady material by a certain time.

An order for pre-trial disclosure empowers the trial court to impose sterner sanctions than it can for tardy disclosure of Brady material where no order compelled its pre-trial disclosure.

Sanctions may include continuances, preclusion of evidence, mistrials and new trials. A dismissal without prejudice is appropriate only in the case of willful prosecutorial misconduct and severe prejudice to the defense that cannot otherwise be remedied.

A Motion to Disclose Favorable Evidence

The due process clause obligates the prosecution to disclose to the defense any material evidence favorable on the issues of guilt or punishment. A motion for such evidence (called a Brady motion) might elicit the identities of witnesses, but it must be more than a general request for exculpatory information.

If your attorney can articulate a specific theory of defense that rests on specific witnesses, he can describe those facts in a motion and demand the identities of witnesses who support your theory. For example, if your attorney heard that the prosecution showed your photograph to eyewitnesses and those witnesses failed to identify you as the perpetrator, your attorney can ask for a report of that event and the witness’s identity.

This approach often requires that your attorney already have a good idea of what to look for.

Witness Statements

Many jurisdictions forbid production of witness statements until the time of trial. Others entitle the defense to obtain the statements with other discovery materials.

In either type of jurisdiction, your criminal defense attorney can request in both a discovery letter and a motion that the officers and agents preserve any notes or rough drafts of witness interviews, your statements, or other investigative steps.

The transition from notes to finished report often excises material helpful to the defense. If the agents discard the notes, the trial court will look to the prosecution’s good or bad faith in fashioning a remedy, and the disregard of the request fortifies a bad faith argument.

Colorado Reciprocal Discovery and Notice of Defenses

A request for discovery from the prosecutor triggers reciprocal discovery obligations.

Also, your criminal defense attorney is required to give notice of certain defenses, such as alibi or insanity. ( see Rule 16 below).

Usually, when a court imposes onerous reciprocal discovery obligations on the defense it does so in the context of a pre-trial order that likewise forces the prosecution to disclose much more of its case than is customarily required (e.g., witness lists, witness statements, or designation of trial exhibits).

When your defense attorney asks for extra disclosure from the prosecution he will weigh the value of the additional insight into the prosecution case against the cost of disclosing your defense. For example, your attorney may consider the following questions:

  • Are you in the dark about the prosecution’s strategy and likely witnesses, or do you have a good idea of what their evidence will be through document discovery, informal discussions with the prosecutor and your own investigation?
  • Are your witnesses such that if disclosed pre-trial the prosecution will be able to intimidate them or excavate damaging information about their credibility?
  • Does your defense depend on the element of surprise, or, like most defenses, is it the only feasible one in the circumstances, one that any competent prosecutor would anticipate?

The court cannot force you to commit to testifying or not, and your attorney cannot be forced to preview your testimony. Where you have not made any statement to the authorities, and your attorney plans on having you testify, early disclosure of the prosecution’s evidence may enable your attorney to mold his trial strategy to anticipate and meet the worst of the evidence.

No Requirement to Disclose Harmful Evidence

You do not have any obligation to disclose evidence harmful to your criminal case. Your criminal defense attorney may hide incriminating evidence safely away in his files so long as it is not contraband.

Furthermore, absent a rule commanding it, a trial court cannot order the defense to produce impeaching and rebuttal evidence to the prosecution before trial.

*Rule 16 of the Colorado Rules of Criminal Procedure Part I. Disclosure to the Defense
  1. Prosecutor’s Obligations.
    1. The prosecuting attorney shall make available to the defense the following material and information which is within the possession or control of the prosecuting attorney, and shall provide duplicates upon request, and concerning the pending case:
      1. Police, arrest and crime or offense reports, including statements of all witnesses;
      2. With consent of the judge supervising the grand jury, all transcripts of grand jury testimony and all tangible evidence presented to the grand jury in connection with the case;
      3. Any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons;
      4. Any books, papers, documents, photographs or tangible objects held as evidence in connection with the case;
      5. Any record of prior criminal convictions of the accused, any codefendant or any person the prosecuting attorney intends to call as a witness in the case;
      6. All tapes and transcripts of any electronic surveillance (including wiretaps) of conversations involving the accused, any codefendant or witness in the case;
      7. A written list of the names and addresses of the witnesses then known to the district attorney whom he or she intends to call at trial;
      8. Any written or recorded statements of the accused or of a codefendant, and the substance of any oral statements made to the police or prosecution by the accused or by a codefendant, if the trial is to be a joint one.
    2. The prosecuting attorney shall disclose to the defense any material or information within his or her possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce the punishment therefor.
    3. The prosecuting attorney’s obligations under this section (a) extend to material and information in the possession or control of members of his or her staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report, or with reference to the particular case have reported, to his or her office.
  2. Prosecutor’s Performance of Obligations.
    1. The prosecuting attorney shall perform his or her obligations under subsections (a)(1)(I), (IV), (VII), and with regard to written or recorded statements of the accused or a codefendant under (VIII) as soon as practicable but not later than twenty calendar days after the defendant’s first appearance at the time of or following the filing of charges, except that portions of such reports claimed to be nondiscoverable may be withheld pending a determination and ruling of the court under Part III but the defense must be notified in writing that information has not been disclosed.
    2. The prosecuting attorney shall request court consent and provide the defense with all grand jury transcripts made in connection with the case as soon as practicable but not later than thirty days after indictment.
    3. The prosecuting attorney shall perform all other obligations under subsection (a)(1) as soon as practicable but not later than thirty days before trial.
    4. The prosecuting attorney shall ensure that a flow of information is maintained between the various investigative personnel and his or her office sufficient to place within his or her possession or control all material and information relevant to the accused and the offense charged.
  3. Material Held by Other Governmental Personnel.
    1. Upon the defense’s request and designation of material or information which would be discoverable if in the possession or control of the prosecuting attorney and which is in the possession or control of other governmental personnel, the prosecuting attorney shall use diligent good faith efforts to cause such material to be made available to the defense.
    2. The court shall issue suitable subpoenas or orders to cause such material to be made available to the defense, if the prosecuting attorney’s efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court.
  4. Discretionary Disclosures.
    1. The court in its discretion may, upon motion, require disclosure to the defense of relevant material and information not covered by Parts I(a), (b), and (c), upon a showing by the defense that the request is reasonable.
    2. The court may deny disclosure authorized by this section if it finds that there is substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment, resulting from such disclosure, which outweighs any usefulness of the disclosure to the defense.
    3. Where the interests of justice would be served, the court may order the prosecution to disclose the underlying facts or data supporting the opinion in that particular case of an expert endorsed as a witness. If a report has not been prepared by that expert to aid in compliance with other discovery obligations of this rule, the court may order the party calling that expert to provide a written summary of the testimony describing the witness’s opinions and the bases and reasons therefor, including results of physical or mental examination and of scientific tests, experiments, or comparisons. The intent of this section is to allow the defense sufficient meaningful information to conduct effective cross-examination under CRE 705.
  5. Matters not Subject to Disclosure.
    1. Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting attorney or members of his legal staff.
    2. Informants. Disclosure shall not be required of an informant’s identity where his or her identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.
Part II. Disclosure to Prosecution
  1. The Person of the Accused.
    1. Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, upon request of the prosecuting attorney, the court may require the accused to give any non testimonial identification as provided in Rule 41.1 (h)(2).
    2. Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the prosecuting attorney to the accused and his or her counsel. Provision may be made for appearance for such purposes in an order admitting the accused to bail or providing for his or her release.
  2. Medical and Scientific Reports.
    1. Subject to constitutional limitations, the trial court may require that the prosecuting attorney be informed of and permitted to inspect and copy or photograph any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.
    2. Subject to constitutional limitations, and where the interests of justice would be served, the court may order the defense to disclose the underlying facts or data supporting the opinion in that particular case of an expert endorsed as a witness. If a report has not been prepared by that expert to aid in compliance with other discovery obligations of this rule, the court may order the party calling that expert to provide a written summary of the testimony describing the witness’s opinions and the bases and reasons therefor, including results of physical or mental examinations and of scientific tests, experiments, or comparisons. The intent of this section is to allow the prosecution sufficient meaningful information to conduct effective cross-examination under CRE 705.
  3. Nature of Defense.Subject to constitutional limitations, the defense shall disclose to the prosecution the nature of any defense, other than alibi, which the defense intends to use at trial. The defense shall also disclose the names and addresses of persons whom the defense intends to call as witnesses at trial. At the entry of the not guilty plea, the court shall set a deadline for such disclosure. In no case shall such disclosure be less than thirty (30) days before trial for a felony trial, or seven (7) days before trial for a non-felony trial, except for good cause shown. Upon receipt of the information required by this subsection (c), the prosecuting attorney shall notify the defense of any additional witnesses which the prosecution intends to call to rebut such defense within a reasonable time after their identity becomes known.
  4. Notice of Alibi. The defense, if it intends to introduce evidence that the defendant was at a place other than the location of the offense, shall serve upon the prosecuting attorney as soon as practicable but not later than thirty days before trial a statement in writing specifying the place where he or she claims to have been and the names and addresses of the witnesses he or she will call to support the defense of alibi. Upon receiving this statement, the prosecuting attorney shall advise the defense of the names and addresses of any additional witnesses who may be called to refute such alibi as soon as practicable after their names become known. Neither the prosecuting attorney nor the defense shall be permitted at the trial to introduce evidence inconsistent with the specification, unless the court for good cause and upon just terms permits the specification to be amended. If the defense fails to make the specification required by this section, the court shall exclude evidence in his behalf that he or she was at a place other than that specified by the prosecuting attorney unless the court is satisfied upon good cause shown that such evidence should be admitted.
Part III. Regulation of Discovery
  1. Investigation Not to be Impeded. Subject to the provisions of Parts I (d) and III (d), neither the prosecuting attorney, the defense counsel, the defendant nor other prosecution or defense personnel shall advise persons having relevant material or information (except the defendant) to refrain from discussing the case or with showing any relevant material to any party, counsel or their agent, nor shall they otherwise impede counsel’s investigation of the case. The court shall determine that the parties are aware of the provision.
  2. Continuing Duty to Disclose. If, subsequent to compliance with these standards or orders pursuant thereto, a party discovers additional material or information which is subject to disclosure, including the names and addresses of any additional witnesses who have become known or the materiality of whose testimony has become known to the district attorney after making available the written list required in part I (a)(1)(VII), he or she shall promptly notify the other party or his or her counsel of the existence of such additional material, and if the additional material or information is discovered during trial, the court shall also be notified.
  3. Custody of Materials. Materials furnished in discovery pursuant to this rule may only be provided to others and used by them for purposes of preparation and trial of the case, and shall be subject to such other terms, conditions or restrictions as the court, statutes or rules may provide. Defense counsel is not required to provide actual copies of discovery to his or her client if defense counsel reasonably believes that it would not be in the client’s interest, and other methods of having the client review discovery are available. An attorney may also use materials he or she receives in discovery for the purposes of educational presentations if all identifying information is first removed.
  4. Protective Orders. With regard to all matters of discovery under this rule, upon a showing of cause, the court may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit the party to make beneficial use thereof.
  5. Excision.
    1. When some parts of certain material are discoverable under the provisions of these court rules, and other parts are not discoverable, the nondiscoverable material may be excised and the remainder made available in accordance with the applicable provisions of these rules.
    2. Material excised pursuant to judicial order shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.
  6. In Camera Proceedings. Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.
  7. Failure to Comply; Sanctions. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed or enter such other order as it deems just under the circumstances.
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