Explain the discovery process. In what ways does discovery differ from state to state?

Question

What will be an ideal response?

Answer 1

Discovery is the process by which both parties to the case learn of the evidence the opposing side will
use. Rule 16 of the Federal Rules of Evidence provides, for example, that the defendant may, upon
request, discover from the prosecution “any written statements or transcriptions of oral statements made
by the defendant that are in the prosecution’s possession; (2) the defendant’s prior criminal record; and
(3) documents, photographs, tangible items, results from physical and mental evaluations, as well as
other forms of real evidence considered material to the prosecution’s case.” There is considerable
variation among the states in the types of information that are discoverable by the defense and the
prosecution. In some states, only the defendant’s statements and physical evidence need be disclosed
to the defense; in other states, there is a presumption that the prosecutor, with only narrow exceptions,
will disclose most of the evidence against the defendant. The defendant has a constitutional right to any
exculpatory evidence. According to the Supreme Court’s decision in Brady v. Maryland (1970),
prosecutors are not allowed to conceal exculpatory evidence, which is evidence tending to show that the
defendant is innocent. Some states also require reciprocal discovery—that is, the defense is required to
turn over certain types of evidence to the prosecutor. Generally, the defense is required to notify the
prosecutor if the defendant is going to enter an insanity plea or use an alibi defense; in the latter
situation, the defense may have to provide a list of witnesses who will support the alibi defense so that
the state can be prepared to cross-examine them.