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    Colorado Criminal Law and Procedure – Understanding “Making” Discovery – Getting the DA’s File

    By Colorado Criminal Defense Lawyer – H. Michael Steinberg

    One of the most important functions of the Colorado Criminal Justice System is a procedure known as making discovery.  This is critically important because the Criminal Justice system puts the burden of proving a case on the Government – and the State has to give you ALL of their evidence so that you can defend yourself- they cannot “hide the ball.”  Making discovery is one of the very first things a Colorado criminal lawyer does to protect their client.

    What is Discovery?

    Discovery is the term used to describe the information, facts, documents, and other materials the District Attorney’s Office will rely upon to prosecute a case. The accused person or defendant in a case has the right to obtain access to this information to prepare their defense.

    How A File Is Created

    After a case has been referred to the DA’s office by a law enforcement agency and charges have been filed, the DA will open a case against the defendant. All investigative reports and other information is placed in the case file as it is received and becomes discoverable in the case. The discovery is then be available for purchase by defense counsel or the defendant

    The Importance of Full or Complete Discovery

    In criminal cases, discovery is a formal process by which the defense and prosecution exchange information relevant to a criminal investigation. The exchange of relevant evidence is a critical component of investigation and trial preparation. Discovery provides  pertinent information allowing each side to adequately prepare for the prospect of a trial and it gives the defendant information on how to plead.

    The necessity of adequate discovery flows from the principle upon which the criminal justice system is founded — the presumption of innocence. By requiring the timely exchange of all information collected by the police and prosecution in criminal cases the idea is that the outcome is a fair and accurate criminal justice system.

    American criminal jurisprudence is predicated upon the presumption of innocence. Because an individual is presumed innocent until convicted by a court of law, the prosecution alone bears the burden of proof. The state must present evidence that the accused is guilty beyond a reasonable doubt. The presumption of innocence is seriously damaged when the defense is given insufficient opportunity to cast doubt upon the prosecution’s case.

    Only through adequate discovery can counsel subject evidence to appropriate scrutiny and give the accused a meaningful opportunity to challenge and test evidence in a fair hearing before a court of law.

    What Is Reciprocal Discovery?

    At times through a process of reciprocal discovery, the defense may also be required to turn over information to the prosecution. Such information may regard, inter alia, witnesses the defense intends to call at trial. Reciprocal disclosure cannot violate neither attorney-client privilege nor the Fifth Amendment right not to give self-incriminating testimony. Rules identifying what qualifies as “discoverable” material in criminal trials, and when it must be exchanged, are determined in large part by state statutes, with some guidance from the United States Supreme Court.

    Colorado has formal rules establishing what information the prosecution must disclose to the defense.

    Civil vs Criminal Discovery Process

    The rules that codify civil and criminal procedure are different in state and federal courts, but in both instances civil procedure actually provides more expansive rights to discovery. For example, in civil trials parties may depose the other party and the other party’s witnesses. This rule simply does not exist in Colorado and most states for criminal trials. Moreover, civil procedure often mandates discovery timelines adequate for counsel to evaluate and scrutinize evidence.

    The fact that discovery laws are so broad in civil cases and are often so restrictive in criminal cases — where the freedom and, sometimes, the life of the defendant are at stake — is as nonsensical as it is unjust. Discovery is a crucial procedural safeguard that protects against wrongful imprisonment, helps to make the legal system more transparent by increasing pretrial disclosure, and ensures a fair procedure by allowing each side in a trial to adequately prepare their case. Alternatively, inadequate discovery laws threaten the reliability of outcomes in criminal cases and significantly undermine a defendant’s right to due process.

    Seeking “Expanded” Discovery

    Thorough discovery laws also mitigate other common reasons for wrongful convictions, such as eyewitness misidentification and false confessions. A Colorado criminal defense lawyer should seek what is called “expanded discovery” to make certain that challenge evidence and increases the likelihood that misleading or exculpatory evidence will be caught and handled appropriately when considering pleas and at trial.

    Expanded criminal discovery helps ensure a more fair and accurate legal system, – discovery in criminal cases often does not include information on witnesses, certain police reports relating to connected case, or mitigating and aggravating evidence, all of which could affect the outcome of a trial, as well as lessen or increase the sentence imposed after a conviction.

    The defense needs to have access to all material evidence in the possession of the prosecution or any third party investigatory agencies, both to ensure a fair outcome and to protect the defendant’s right to due process. Limited “up front” discovery during the pre – trial phase creates the risk that some material evidence will be provided without adequate time for appropriate use, or even missed entirely.

    The Need for Full and Unfettered Access to the Government’s File

    Unlike criminal cases, discovery laws regulating civil suits allow for open-file access to the opposing counsel’s files including witness statements, police reports, and insurance information; this open-file access is even more critical in cases where a defendant’s liberty — or even life — is at risk.

    This writer endorses the open-file policy, the ABA standards provide a model for discovery statutes, because they present a clear enumeration of what evidence must be exchanged, including written statements made by the defendant or co-defendant, witness lists, expert witnesses, and the inspection of physical evidence.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
    The Edward Building
    8400 East Prentice Ave, Penthouse 1500
    Greenwood Village, Colorado, 80111
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