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The importance of the criminal discovery process

If you face criminal charges in Colorado, the last thing you and your attorney need are nasty surprises cropping up during trial. (S)he needs to know exactly what the prosecution has so that (s)he can develop a strategy to best defend you. This is where the criminal discovery process serves as his or her best ally and therefore yours as well.

Discovery is the pre-trial process during which each side must, by law, divulge certain information to the other side. For instance, the prosecution must provide your attorney with the following:

  • A transcript of any oral statement you gave to law enforcement officers and/or a copy of any written statement you gave them
  • A copy of any prior criminal record you have
  • A list of any other defendants who will be prosecuted with you and their contact information
  • A copy of any document the prosecutor plans to rely on during your trial
  • A copy of any test results the prosecutor plans to rely on during your trial
  • A list of the witnesses the prosecutor plans to call to the stand to help him or her prove his or her case against you

Your attorney, in turn, must provide his or her own witness list to the prosecutor, as well as copies of any documents or test results (s)he plans to rely on during your trial.

Additional discovery

Depending on the nature and complexity of your case, your attorney can also file the following with the court if (s)he believes it will help your case:

  • Interrogatories, i.e., written questions to the prosecutor or any of his or her witnesses that they must answer
  • Requests for Admissions, i.e., written statements to the prosecutor or any of his or her witnesses to which they must agree or disagree
  • Requests for Disclosure, i.e., a written list of additional routine documents your attorney wants the prosecutor to produce
  • Requests for Production of Documents, i.e., a written list of additional nonroutine documents specific to your case that your attorney wants the prosecutor to produce, such as copies of statements the prosecution’s witnesses have made to law enforcement officers
  • Notice of deposition, i.e., written notice to any prosecution witness(es) your attorney intends to depose (formally question), including date, time and place where the deposition will take place

The prosecutor can file the same discovery documents with the court with respect to any of your witnesses, but (s)he cannot depose you or ask you for any statement or document that could run counter to your constitutionally protected right against self-incrimination.

It is impossible to overstate the importance of the criminal discovery process. The outcome of your trial may well hinge on the amount and quality of the discovery information your attorney receives.

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