Las Vegas criminal lawyers who also practice civil law understand that entirely different rules apply as far as what items are discoverable in a criminal case versus a civil case. Many criminal clients with prior exposure to civil litigation are absolutely shocked to learn that a person charged with a crime, who faces the loss of his liberty, is legally entitled to obtain far less discovery than he would be allowed to obtain if he were a party in a civil dispute involving money. A person litigating a civil case may use a wide range of fact-finding discovery tools that enable him to resolve almost every important factual issue prior to trial. It is a good system. It protects our rights. Las Vegas criminal lawyers, especially those who also try civil cases, understand the massive disparity in the right to discovery that exists between the two systems. It is very important for lawyers to understand how the two discovery systems work to ensure that they obtain all of the discovery their clients deserve. This article will outline some of the important components of criminal discovery.
Las Vegas Criminal Lawyers must aggressively seek discovery from the prosecution
Because discovery rights in criminal cases are so curtailed in comparison to civil cases, criminal lawyers must utilize every legal tool at their disposal to obtain the most information possible. Obviously, the party who is more acquainted with the facts of the case is in the better position to win at trial. That is why it is essential that criminal lawyers do everything possible to track down every report, memorandum, test result, voluntary statement, video recording, audio recording, or photograph that may be relevant to defending the case.
Brady and progeny
The landmark case of Brady v. Maryland established the principle that the prosecution must disclose exculpatory evidence within the prosecution’s possession. This principle is known as “The Brady Doctrine.” Brady held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Therefore, it is important for criminal lawyers to consider each of the Brady factors carefully to understand precisely what information they are entitled to receive.
The materiality element is perhaps the most contested factor because criminal defense lawyers and prosecutors frequently disagree about the definition of materiality. While most cases have defined materiality as – whether there was a reasonable probability the result of the trial would have been different if the exculpatory material had been turned over before trial – a substantial and growing minority of cases define materiality as anything that is relevant to guilt or punishment and is exculpatory or favorable to the defense. Brady materials that are relevant to guilt or punishment are simply those materials that are helpful to the defense either at the guilt or sentencing phase of a case. If the material helps exonerate the defendant at trial or helps mitigate his punishment at sentencing, then the material is relevant to guilt or punishment.
In addition to the constitutional rules that govern criminal discovery, Las Vegas criminal lawyers must also be familiar with Nevada Revised Statute 174.235. This statute essentially provides that upon the request of a defendant, the prosecuting attorney shall allow the defense to copy, photograph, or inspect any “written or recorded statements or confessions made by the defendant, or any written or recorded statements made by a witness the prosecuting attorney intends to call during the case in chief of the State, or copies thereof, 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.” The statute also allows discovery in the form of testing – physical, mental, and scientific. This statute essentially grants broad discovery rights to persons charged with crimes in Nevada.
Why is Discovery Important
When people watch legal thrillers on television or at the movie theater, the scenes rarely show the tedious, painstaking work that goes into case preparation. The best Las Vegas criminal lawyers understand that the best defense is always built upon a foundation of preparation. In addition to the defense’s own independent fact investigation, there is always the challenging task of obtaining the reams and reams of paper reports and documentation that law enforcement generate in almost every significant case. Almost always, this becomes a game of cat and mouse—law enforcement denies that certain documents exist or detectives shred their handwritten notes before the defense can obtain access to them, all the while, someone’s liberty hangs in the balance. So essentially, criminal discovery boils down to the following question: is the Las Vegas criminal defense lawyer tenacious enough and meticulous enough to track down the necessary documents and to obtain the necessary court orders to force disclosure of the documents? Too many Las Vegas criminal lawyers throw up their hands and just give in and take the paltry discovery that they receive while the prosecution holds most defense-friendly documentation back. It is understandable. The criminal lawyers just get worn out. However, it is unacceptable. Cases are won or lost at this very unglamorous and monotonous phase of the litigation. It not only requires a thorough understanding of the basic parameters of criminal discovery, but it also requires Las Vegas criminal lawyers who are willing to fight to obtain the documents the client is entitled to obtain.
At Oronoz & Ericsson, we have litigated hundreds, if not thousands, of criminal discovery-related disputes. The Las Vegas criminal lawyers at Oronoz & Ericsson—Jim, Tom, and Rachael—all have a deep understanding of what it takes to make sure that their clients obtain every shred of discovery the prosecution is required to provide. They are committed to providing the finest criminal defense representation in Southern Nevada. If you or a loved one is charged with a crime in Las Vegas or the surrounding areas, call us immediately. We can help.