There's a scene from My Cousin Vinny that perfectly describes how criminal justice discoveries work.
Attorney Frank Gambini (Joe Pesci) enters the room he shares with Mona Lisa Vito (Marisa Tomei), beaming with pride at having just "refurbished" a box of prosecutorial records.
In this one scene, Mona summarizes the entire discovery criminal law.
"Don't you want to know why Trotter gave you his files?"
Vinny says, "I already told you why."
Mona replies with:
"He has to do that, according to the law you are entitled. It's called disclosure, you ass$#@!. He has to show you everything, otherwise there could be a mistrial. He needs to give you a list of all his witnesses. You can speak to all of his witnesses. He allows no surprises!
You weren’t taught that in law school either?”
Rule 412 of the Illinois Supreme Court. Disclosure to the Defendant
Discovery in criminal matters…
In Illinois, the Supreme Court has rules governing disclosure in criminal matters. Each party has an obligation to the other party.
Rule 412 of the Illinois Supreme Court is listed below. It describes what the prosecution must offer the defense in all crime cases.
(a) The Defendant must submit a written request for discovery to initiate the State's obligation to offer the items described.
(i) A list of witnesses together with their statements or memoranda describing their statements;
(ii) any recorded or written statements made by the defendant or co-defendant, or a summary of such statements;
(iii) Minutes of the Grand Jury;
(iv) Expert opinions, including their opinions and a statement of their qualifications as experts
(iv) any documents or tangible items which the prosecution intends to use or any items received from or belonging to the accused; And
(vi) the criminal record of the State's Witnesses; and a list of all refuting witnesses
(b) The state must disclose any electronic surveillance, including wiretapping of conversations, in which the accused participated.
(c) This is the Brady determination. The state must disclose to the defense all information "that would negate the guilt of the accused with respect to the alleged crime or reduce his sentence therefor".
(d) "The State will comply with its obligations under this rule as soon as reasonably practicable after defense counsel has filed a request."
(e) State and Defense need to figure out how the information will be shared:
(i) The information can be described in general terms and given the opportunity for the defense to copy and examine what they wish. And
(ii) The Defense may arrange for items to be tested and inspected at a convenient place and time.
(f) "The State should ensure that a sufficient flow of information is maintained between the various investigative personnel and its office to obtain or control all materials and information relevant to the accused and the criminal offense charged."
(g) The State shall make diligent and good faith efforts to make available to defense counsel material that is not under its control.
(H) "Discretionary Disclosures. If materiality to the preparation of the defense is demonstrated, and if the request is well founded, the court may, in its sole discretion, require that the defense counsel be disclosed relevant materials and information not covered by this rule.”
(I) "Denial of Disclosure. The court may refuse disclosure authorized by this rule and rule 413 if it finds that such disclosure would expose any person to a significant risk of physical harm, intimidation, bribery, economic reprisals, or needless harassment or embarrassment that would detract from the benefit of the disclosure exceeds advising."
(J)Matters Not Subject to Disclosure.
(I)work product. The opinions, theories or conclusions of the State or members of its legal or investigative staff are not traceable.
(ii)The informant. "Disclosure of an informant's identity is not required if his or her identity is a law enforcement secret and failure to disclose does not violate the constitutional rights of the accused."
(iii)National security. "Disclosure is not required if there is a significant risk of serious harm to national security and failure to disclose would not violate the constitutional rights of the defendant."
How to make a criminal investigation inquiry
Download a sample crime detection application
This example application serves as an excellent crime detection checklist. This is an example of a crime investigation request and lists the types of things a defense team should request in a criminal proceeding.
Click on the link below to download this sample crime detection application.
Rule 413 of the Illinois Supreme Court. Disclosure to Law Enforcement
More insights into criminal matters...
Most of the knowledge in criminal cases goes from the state to the accused. That doesn't mean the defense doesn't have disclosure obligations.
Rule 413 of the Illinois Supreme Court lays out exactly what the defense must observe versus the prosecution.
(A)The person of the accused. The court may order the defendant to:
(i) appear in a lineup;
(ii) speak for identification purposes;
(iii) obtain a fingerprint;
(iv) pose for photographs that are not a re-enactment of a scene;
(v) trying on garments;
(vi) allow material samples to be taken from under his fingernails;
(vii) allow samples of his blood, hair and other bodily materials to be taken that do not constitute unreasonable interference;
(viii) provide a sample of his handwriting; And
(ix) undergo an appropriate physical or medical examination of his body.
(b) Defense Counsel shall have the right to be present at any of the above events and the State shall give reasonable notice to the accused and his counsel of the time and place of such appearance.
(C)Medical and scientific reports.At the written request of the state, the defense must disclose all expert opinions for which it intends to call a witness.
(D)defenses.Upon written request from the State, the Defense will disclose any objections it intends to raise at a hearing or hearing and provide the following information and materials under its control:
(i) List of witnesses containing the names and addresses of the witnesses together with their written or recorded statements and any summaries of the statements and a record known to the defense of any previous convictions of these witnesses; And
(ii) Any document, photograph or tangible item it wishes to use in the process or for any impeachment proceeding; And
(iii) Any alibi evidence used by the accused describes the specific location where he claims he was at the time of the offence.
(e)Additional Disclosure."If materiality is established and the request is well founded, the court may, in its sole discretion, require that relevant materials and information not covered by this rule be disclosed to the State."
Rule 414 of the Illinois Supreme Court. deposits of evidence
Criminal statements in criminal proceedings
Testimonies are not as common in criminal cases as they are in civil cases. However, the disclosure rules in criminal matters allow for some limited statements. Usually a material witness is that he is sick and dying. Here is the rule:
"(a) When the court hearing a criminal case is of the opinion that the testimony of a person other than the accused is necessary for the preservation of relevant testimony because of the substantial possibility that it will not be available at the time of the hearing or At the trial, the court may, upon application and notice to both parties and their counsel, order that that person's testimony be taken during oral or written questioning for use as evidence at a hearing or trial.”
Rule 415 of the Illinois Supreme Court. regulation of discovery
If there is a dispute between the parties as to what was offered and what was not, a judge may need to be involved to resolve the dispute.
These are the rules a court follows to resolve disputes:
„(A) Investigations must not be obstructed.Except as otherwise provided in matters not subject to disclosure and protective orders, neither the parties' counsel nor other prosecution or defense personnel shall advise any person in possession of relevant material or information (other than the defendant) to not to discuss the case with the opposing counsel or to show the opposing counsel relevant material, nor may they otherwise impede the investigation of the case by the opposing counsel.
(b) Continued Disclosure Requirements.If, following compliance with these Rules or any equivalent subpoenas, a party discovers additional material or information subject to disclosure, it must promptly notify the other party or its legal counsel of the existence of such additional material and, if the additional material or information becomes available during the Trial information discovered, the court is also to be notified.
(c) Safekeeping of the Materials.All materials provided to an attorney under these Rules will remain in his sole custody and will be used only for the purposes of advancing his case and will be subject to other terms and conditions as the court may impose.
(d) Protection Orders.At any time, for cause, the court may order that certain disclosures be limited or deferred, or make any other reasonable order, provided that all materials and information to which a party is entitled must be disclosed in a timely manner to obtain legal advice enable it to be put to good use.
(e) Excision.If some portions of a particular material are locatable under these Rules and other portions are not locatable, then as much of the material as is consistent with the Rules should be disclosed. Cutting out certain materials and disclosing the balance is preferable to withholding the whole. Material seized by court order will be sealed, confiscated and retained in the court records for availability to the reviewing court in the event of an appeal.
(f) In Camera Proceedings.At the request of a person, the court may permit the presentation of a reason for refusing or regulating disclosure or any part of that disclosureOn camera. A record must be kept of this procedure. When the court issues an appeal after a showingOn camerathe entire record of that performance will be sealed, confiscated and retained in the court files to be made available to the examining court in the event of an appeal.
(i) If at any time in the course of the proceedings it becomes known to the court that a party has breached any applicable disclosure rule or an order made pursuant thereto, the court may order that party to permit discovery of material and information previously disclosed undisclosed, allow continuation, bar such evidence, or make any other arrangement it deems appropriate under the circumstances.
(ii) A willful breach by counsel of any applicable disclosure rule or an order made pursuant thereto may result in counsel being subject to appropriate sanctions by the court.”
Detection in cases of administrative offenses
The rules of evidence described above apply to criminal offenses in Illinois. However, there is case law that describes detection in criminal cases.
"The state has an obligation to provide defendants in misdemeanor cases with a list of witnesses, any confessions by the accused, and evidence negating the guilt of the accused (Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 , 83 S. Ct. 1194) and in this particular case the results of the breathalyzer test. In addition, the report requested by the defendant is available at trial and may be used in the impeachment of the prosecution witness who prepared it.” People v. Kladis, 2011 IL 110920, ¶ 25; citing People v. Schmidt, 56 Ill. 2d 572 (1974).
Since the Schmidt decision, video recordings made by vehicle cameras in drunk driving cases have become as relevant to the question of proving or disproving guilt as the materials specifically mentioned in the Schmidt judgment.
Allowing their discovery furthers the goals of pre-trial discovery to “improve the truth-finding process, allow attorneys to better prepare for the trial, avoid surprises, and promote expeditious and final resolution of controversies consistent with the substantive rights of the parties .” Kladis, § 25; citing D.C. v. S.A., 178 Ill. 2d 551, 561 (1997).
See also People v. Taylor, 2011 IL 110067, where the Illinois Supreme Court allowed disclosure of videos through misdemeanor discovery. See also 20 ILCS 2610/30(b) and 720 ILCS 5/14-3(h-15) for regulations in patrol car videos.
“In summary, we conclude that routine videotaping of traffic stops has now become an integral part of these encounters, objectively documenting what is happening by capturing the behavior and words of both parties. We therefore believe that this important and relevant evidence falls within the range of materials considered discoverable under Schmidt.” Kladis, ¶ 29.
Download a sample application for detection in cases of administrative offenses...
Here is an example request for detecting a misdemeanor. It's also a great crime detection checklist.
The Civil Discovery Rules
In addition, it is common in DUI cases to invoke the Civil Rules of Discovery, which govern the civil hearing on a summary stay waiver request.
Seepeople v Patel,2019 IL App (2d) 170766 (March).Episode 603(duration 19:01)
Rule 201. General Discovery Rules
(b) Scope of Discovery.
(1)Full disclosure required.Except as otherwise provided in these Rules, a party may, through disclosure, obtain full disclosure with respect to any matter relevant to the subject matter of the pending proceeding, whether the claim or the defense of the party who the disclosure requests, or any other party, including the existence, description, nature, preservation, condition and location of documents or tangible things, and the identity and location of persons who have knowledge of relevant facts. The term “documents” as used in Part E of Article II includes, but is not limited to, any paper, photograph, film, record, memorandum, book, record, account, communication and electronically stored information within the meaning of rule 201(b). )(4).
(d) Time determination can be initiated.No disclosure proceeding shall be noted or otherwise commenced until all defendants have appeared or are required to appear, without the granting of valid court approval.
(k) Reasonable attempt to resolve differences required.The parties will facilitate disclosure under these Rules and will make reasonable attempts to resolve disagreements about disclosure. Each disclosure request must include a statement that counsel handling the case, after personal consultation and reasonable attempts to resolve disagreements, was unable to reach an agreement or that opposing counsel was unavailable for personal consultation asked or acted inappropriately attempted to resolve differences.
Rule 214. Discovery of Documents, Objects, and Tangible Things—Inspection of Real Estate
(a) Either party may, upon written request, direct another party to inspect, copy, reproduce, photograph, test or sample certain documents, including electronically stored information as defined in 201(b)(4), any item or tangible thing to permit access to property for the purpose of conducting surface or subsurface inspection, surveying, photography, testing or sampling, or to disclose information that may lead to the discovery of the whereabouts of such items, regardless of their nature or content or the condition of such documents, objects, tangible things or property is relevant to the subject matter of the claim. The request shall specify a reasonable time, which shall not be less than 28 days from the date of service of the request, except under an agreement or court order, and the place and manner of conducting the inspection and taking related actions .
A disclosure violation may be constituted either as a violation of due process under Arizona v. Youngblood, 488 U.S. 51, 58 (1988) or as Rule 415(g)(i) of the Illinois Supreme Court. People vs. Borys, 2013 IL App (1st) 111629, ¶ 17.
The Evidence Destruction Act
Noting that police do not have "an undifferentiated and absolute duty to retain and retain all material that might be of evidentiary importance to a particular prosecution," the Supreme Court ruled that "unless a defendant may have bad intentions." show.” Police believe that failure to obtain potentially useful evidence does not constitute a denial of due process.” Youngblood, 488 U.S. at 58
The Fourteenth Amendment as set out in Brady v. Maryland, 373 U.S. 83 (1963) renders the good or bad will of the state irrelevant when the state fails to disclose to the accused material exculpatory evidence.”
- People vs. Montgomery, 2018 IL App (2d) 160541 (Oktober). episode 555(duration 14:02)(What to do, what to do with lost, destroyed or missing video?)
- people v Kladis, 2011 IL 110920
- People against Aronson, 408 Ill. App. 3d 946 (2. Dist. 2011)
- People against Danielly, 274 Ill. App. 3d 358, 367 (1995)
- Arizona gegen Youngblood, 488 U.S. 51 (1988)(Officials failed to cool a rape victim's clothing, which later meant that serological testing could not be performed without due process being denied unless police showed bad faith.)
- People against Aronson, 408 Ill. App. 3d 946 (2. Dist. 2011)(Very similar to the facts of this case, where the court refused sanctions but then ruled in favor of the defendant at the SSS hearing, in part because the FSTs were being challenged.)
- people v Moravian, IL App 2015 (1.) 133869 (November). Episode 105(duration 8:00)(DUI Discovery Sanctions Confirmed: Police Refusing to Release Their POD (Police Observing Device) Images).
- Drug dog discovery by police: The defense has a right to know anything about the dog
- Why police drug dog detections should include a veterinarian's records
- People v. Cunningham, IL App 2018 (1.) 153367 (June). episode 517(Duration 12:37) (importance of evidence and bad faith lead to detection violations and evidence destruction issues)
- People v. Tsiamas, 2015 IL App (2d) 140859 (Dezember).Episode 122 (duration 5:12) (DUI Discovery Violation: Booking Room Video Discoverable)
- People vs. Olson, IL App 2015 (2d) 140267 (Juni). Episode 077(duration 17:22)(No penalties or remedies if defendant is handed blank CD as there is no proof the recording ever existed.)
- Defendants are entitled to police body camera footage by discovery
- People vs. Acevedo, IL App 2017 (3 days) 150750 (March). episode 309(duration 6:09)(Here is a sanction for detecting drunk driving without teeth (it's not the civil inference thing))
- Is it time to scrap the Brady Rule? And other big discovery themes with Evan Bruno
- Illinois FOIA is an alternative means of gathering information
- People v.Moore, IL App 2016 (1.) 133814 (Februar).Episode 149 (duration 4:49)(Issuing a civil subpoena is sometimes an acceptable discovery violation sanction)
- People vs. Jones, IL App 2017(1) 143403 (January)Episode 299(duration 5:53)(Mental health records are confidential: Here's how to get them)
- Regarding Manuel M., 2017 IL App (1st) 162381 (January). Episode 292(duration 8:55)(Minors are not allowed to enter the monitoring place of the officer)
- People vs. Flournoy, IL App 2016 (1.) 142356 (November). Episode 259(duration 11:44)(The defendant had a right to know the surveillance location from which the police made their observations)
- people v Gray, IL App 2016 (1st) 141196 (March).Episode 152 (duration 4:03)(The discovery rule does not apply to corrupt cops: no disclosure requirement before a plea deal)
- People against Moses, 2015 IL App (3d) 140577, ¶ 4 (August)(no detection violation if officer did not record FSTs)