A Series of Lessons for Facebook Attorneys Lesson 2 – Getting Discovery and Reviewing Evidence

In Lesson 1 we discussed how a case starts and that little actual evidence or information is available. Today we are going to talk about getting discovery and reviewing evidence.

In every criminal case the client is entitled to see all the evidence against them. The process of receiving the evidence is called discovery. The attorney will request that the prosecutor provide all evidence available. This is to be received ten (10) days from request. However, you will only receive what they have in the file to that date. Certain items are not always immediately available.

Typically early in the case discovery is limited to any witness statements, officer reports and any statement made by your client. Physical evidence may be available for viewing at the evidence locker. Some evidence is sent to the crime lab for further testing. The testing could be to determine the presence of illegal narcotics, fingerprints, DNA, etc. If the evidence has been sent to the crime lab – get ready to wait. For instance DNA results can take 1 to 1.5 years to return from the lab. Also, electronics are sent to a cyber specialists, and those final reports can take a while.

The discovery process is ongoing. Each time the prosecutor receives additional information, they send supplemental discovery. That means discovery that has not previously been released. A complicated case can have numerous supplemental discovery filings. Some of those may come close to time for trial. It is not guaranteed that all evidence is available and released early in the case, and often the process goes on for a considerable length of time.

The client also has a duty to provide discovery to the State that they intend to use to prove their innocence. For instance, any alibi witnesses, records, or other items the client can use to prove their innocence will be provided to the State. That means that at the time of trial there should be little surprise in the evidence, it will just be the arguments about whether or not the evidence is admissible.

The attorney is responsible for reviewing all of the evidence as it comes in, and investigating any information provided by the client or third parties. If the attorney has information from a witness that could prove their client’s innocence, they have a duty to follow up on that information. The attorney will be watching social media accounts, talking with witnesses, doing back ground research and legal research to defend the client. The attorney gets the opportunity to follow up on all gossip and innuendo to determine credibility.

That means that all the social media posts where Jane “knows” all about the case and posts the things she “knows” the attorney gets to follow up. Often Jane heard it from a friend, who heard from a friend, who…

Part of reviewing evidence is looking for mistakes that were made in the original arrest, the investigation, the credibility of witnesses and admissibility of the evidence. This is when the attorney looks for inconsistencies in witness statements, officer reports and lab results. The information is often used to depose the witnesses to determine if their account of events has changed or to dig deeper into the story of the witness.

A full review of the evidence determines if the attorney needs to file motions to suppress statements and evidence ahead of trial. This is HUGE job, and often takes many hours over many months.

The majority of evidence is not released to the public, and by rule cannot be discussed much at all ahead of trial. If we released all of the evidence to the public ahead of trial, the client could just be tried by the court of public opinion. The information would be quickly released on all forms of media and eliminate any chance of the client getting a fair trial by jury.

Even if all the evidence were released to the public, the fact that the State or client plans to use evidence does not mean it will actually be admissible. There are many rules of evidence, for instance hearsay is a rule of evidence. That means what Jane heard from a friend won’t be admissible.

Facebook lawyers make many assumptions based on gossip and innuendo, and really do not have the benefit of all the evidence or knowledge of the rules on what evidence will be allowed by a court. So, as you see cases discussed in the media and on social media, keep in mind that it is a tiny amount of information with a lot of uneducated assumptions.

The trial is when all the evidence is presented to the jury to make a decision. So, when a case really piques your interest, it is best to wait for the trial and more information before making any final decisions on the “facts.”

Next time we will discuss preparing a case for trial or a plea.

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