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What Does It Mean When My Lawyer Says He Is Waiting For Discovery?

Criminal-DiscoveryI often have to catch myself when I’m talking to my clients about their criminal cases. As lawyers, we sometimes use terminology that while it may be common for us, is foreign to most people who are not involved in the criminal justice system every day like we are. The other day I was talking to a client about the status of their criminal case and I mentioned to the client that I was ‘waiting for Discovery’. I didn’t give the terminology a second thought, assuming that the client knew what I was talking about. However, the client made it very clear that they did not understand what I was saying and I realized that most clients probably feel the same way. I want to take this opportunity to describe what Discovery is and why it sometimes takes a long time time for Discovery to be complete.

If you are facing criminal charges, the US Constitution requires that you have a fair trial. Central to the notion of a fair trial in the criminal law is the requirement that you be provided with all of the evidence the prosecution intends to use in Court to prove you guilty of the criminal charges. In order to have a fair trial, there can be no surprises. Criminal defendants have a right to see all of the evidence the prosecution has. But fairness requires more than you be given the evidence that the prosecution intends to use against you. Fairness requires that you be given ALL of the evidence that is in the states possession. This includes evidence that may tend to show that you are not guilty of the criminal charges.

While the Constitution requires that a criminal defendant be afforded a fair trial, the prosecution is also entitled to be treated fairly. That is why the state has the right to be provided with any evidence that a defendant intends to use at trial. The bottom line is that there should be no surprises in any criminal cases. That is basically what the Discovery process in a criminal case is all about. It’s the part of the case where the parties exchange all of the evidence and then determine whether they want to go to trial, or work out a plea agreement to avoid going to trial. It is usually the most important part of a criminal case.

If you are charged with a felony, the Discovery process formally begins after you are Arraigned, or formally charged, with a criminal offense. This usually happens after the Preliminary Hearing or after you are indicted by a Grand Jury. The defense attorney will file a written Motion for Discovery and serve a copy of the Motion to the prosecution. The Motion for Discovery will set forth all of the information that the defense is requesting. This will include all of the police reports, witness statements, photographs, videos, or any other evidence that may be in the prosecution’s possession.

If you are charged with a misdemeanor, your lawyer does not have to file a written Motion for Discovery. Most of the time, an oral Motion for Discovery at your first court date is enough to trigger the prosecution’s obligation to provide you with all of the evidence they have on your case. In most misdemeanor cases, the prosecution will provide the Discovery immediately. In some misdemeanor cases, there is no Discovery. Recently, I had a case involving a criminal charge for a client clocked driving 39 mph over the speed limit, a Class A Misdemeanor in Illinois. There was no discovery in the case, just the ticket issued by the Illinois State Police. In most felony criminal cases, it can take several weeks, or months, for Discovery to be complete. Sometimes, the state has to issue subpoenas to get the Discovery. If the state has to obtain medical records, this can delay the completion of Discovery. Federal and State Health Privacy laws require that prosecutors obtain a Court Order allowing them to have access to a criminal defendants medical records. When the state issues a subpoena for medical records, the subpoena is returnable to the court. When the court receives the medical records, the judge will review the medical records and will not allow the state to have access to medical records that are private and have no relevance to the criminal case.

A formal decision about how to defend a criminal case does not usually happen until the prosecution turns over all of their evidence. In some instances, a defendant may Demand a Trial before receiving all of the evidence if the lawyer for the defendant believes it is the best strategy. In most instances, it is not in the best interest of the defendant to Demand a Trial without having all of the evidence. If a defendant makes a formal written Demand for Trial, they cannot complain that they did not receive all of the evidence before trial. Once the state answers that they have completed all of the discovery, they cannot use any evidence at trial that was not made available to the defense ahead of time.

A formal decision about how to defend a criminal case does not usually happen until the prosecution turns over all of their evidence. In some instances, a defendant may Demand a Trial before receiving all of the evidence if the lawyer for the defendant believes it is the best strategy. In most instances, it is not in the best interest of the defendant to Demand a Trial without having all of the evidence. If a defendant makes a formal written Demand for Trial, they cannot complain that they did not receive all of the evidence before trial. Once the state answers that they have completed all of the discovery, they cannot use any evidence at trial that was not made available to the defense ahead of time.

James Dimeas is a nationally-recognized, award-winning, criminal defense lawyer, with over 28-years of experience handling criminal cases throughout Chicago, Cook County, DuPage County, Kane County, and Lake County. Recently, James Dimeas was named a “Top 100 Criminal Defense Lawyer in the State of Illinois” for the Years 2018, 2019, 2020, and 2021 by the American Society of Legal Advocates. James Dimeas was named a “Best DUI Attorney,” a “Best DUI Lawyer in Schaumburg,” and a “Best Criminal Defense Lawyer in Chicago” by Expertise. James Dimeas was named a “Top 100 Criminal Defense Trial Lawyer” by the National Trial Lawyers. The National Academy of Criminal Defense Attorneys gave James Dimeas the “Top 10 Attorney Award for the State of Illinois”. James Dimeas is rated “Superb” by AVVO, 10 out of 10, the highest classification possible for any criminal lawyer in the United States. The American Society of Criminal Law Attorneys recognized James Dimeas as a “10 Best Attorney for Client Satisfaction”. Attorney and Practice Magazine gave James Dimeas the “Top 10 Criminal Defense Attorney Award for Illinois”.

If you are facing criminal charges in Illinois, you can contact James Dimeas anytime for a free and confidential consultation. You can always talk to James Dimeas personally by calling him at 847-807-7405.

Additional Blogs:

Does My Lawyer Have to Give Me Copies of the Police Reports for my Case?, by James G. Dimeas, Chicago Criminal Lawyer Blog, March, 13, 2018.

Do the Police Have To Read You Your Rights If You Are Arrested, by James G. Dimeas, Chicago Criminal Lawyer Blog, September 5, 2017.