As soon as you are charged, your attorney has the ability to file a pretrial
Motion for Discovery that requires the State to provide you (your attorney)
with all evidence that the State has and plans to use against you as well
as the names of each person they intend to call as witnesses against you.
Assure that the Motion for Discovery is filed at the first possible moment.
It is vital to know everything possible about the charges against you, who
made them and why, exactly who will testify against you and what will they
say. Remember, it's a feather in a DA's cap to "nail" a child molester,
regardless of whether they did it or not, so it is not unusual at all for
them to intentionally withhold certain discovery, especially material that
could benefit the defense.
Your attorney should consider filing a request for production of documents
with Child Protective Services and attempt to obtain all their records,
documents, notes or any other material pertaining to you. That is also true
of any psychologists or counselors who talked with the children.
The days of "trial by ambush" are long over and if your attorney does his
job properly, through the use of "discovery," they will determine everything
that will be used against you, who will testify against you, what their testimony
will be and what, if any, exhibits will be used in support of the State's
case.
Likewise, the State also has the right to know who you will call as witnesses,
experts or otherwise and what documents or exhibits you plan to present.
In short, if "discovery" is conducted properly, there should be absolutely
no surprises whatsoever during trial.
Now, let's keep things very simple for a moment. Think carefully about what
material is out there that would assist you. The State may have lab reports,
investigative notes and reports, audio or video recordings of interviews
between you and investigators, audio or video recordings between
investigators/the prosecutor and the minor children, reports from social
services, youth courts, school counseling records, reports from medical doctors,
psychiatrists, psychologists or other counselors or written statements from
witnesses who plan to testify against you. It would certainly benefit you
to obtain everything possible at the fastest possible time and if your attorney
honestly cares, he will do so.
In addition, there are numerous other areas open to your attorney, such as
pretrial motions and pretrial hearings, in the event the State, or anyone
else denies discovery that you are entitled to.
As an example of what you are entitled to in discovery, consider the following
which should consist of the very least asked for in the motion:
-
The names and last known addresses of persons whom the State intends to call
as witnesses.
-
Any written confession, admission or statement of the defendant and a list
of witnesses thereto.
-
Whether there was an oral confession, admission or statement made by the
defendant and a list of witnesses thereto.
-
The results of any scientific examination conducted upon any evidence.
-
Any material or information within the State's possession or control which
tends to negate the guilt of the accused as to the offense charge or would
tend to reduce his punishment.
-
An opportunity to inspect any physical evidence prior to trial.
It is vital that you know and understand a little about discovery, because
without it, your attorney is like a pilot flying at night with no instruments.
I recall one specific case I was involved in where the attorney was retained
several days following the arrest of my client, yet it took that attorney
over two (2) months before he even filed a Motion for Discovery. Worse yet,
the State did not even comply with the defense's motion until two (2) days
prior to my client's trial and then intentionally failed to provide certain
material that would have benefitted the Defense. That fact was discovered
several years later, following a conviction, when the boy's father filed
a lawsuit against that attorney, charging him with legal malpractice and
ineffective assistance of counsel. No attorney that cares about their client
would have allowed the State to conduct Discovery in that manner.
Discovery issues can also play a vital role in post-conviction relief. If
the defense attorney did file a proper motion for discovery and then, following
conviction, you are able to prove that the prosecution wilfully withheld
information or evidence "beneficial" to the defense, depending on the nature
of what was withheld, that would be grounds for requesting a new trial based
on a violation of your constitutional rights. In the same manner, if the
defense attorney did not file a proper motion, failed to compel the State
to comply if they failed to provide the material required by law or if you
can prove that the outcome of your trial would have been different had the
defense attorney conducted discovery properly, you have a reversible issue
on ineffective assistance of counsel, also a violation of constitutional
rights.
