ABA Family Legal Guide

Criminal Justice

Court Procedures

Pretrial Procedures

Does discovery take place in criminal cases as in civil cases?

Discovery is a process that allows the parties (state and criminal defendant in criminal cases; and plaintiff and defendant in civil cases) to learn the strengths and weaknesses of each other's case--for example, by obtaining the names and statements of witnesses the other side intends to call at trial. Because the defendant in a criminal case has certain constitutional safeguards (such as the right against self-incrimination), discovery in criminal cases is far more limited than in the civil context.

It is common for discovery rules or laws to require both parties to provide in advance of trial lists of names of witnesses and physical evidence that may be introduced at trial. The state usually has to hand over any statement made by the defendant that it intends to introduce at trial and to indicate criminal record histories of defendants and witnesses as well as any benefits (such as reduced charges) offered or provided to witnesses. Defendants are entitled to receive the same kinds of discovery material as are made available to the state. It is common for defendants to have to tell the prosecution about their intention of relying on certain defenses, such as insanity, in advance of trial. The prosecution is required as a matter of federal constitutional law to hand over to the defense all evidence favorable to the defendant that concerns either factual guilt or sentencing issues.