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Does Discovery Take Place in Criminal Cases as in Civil Cases?

Before a civil or criminal trial begins in earnest, there is a period of time in which both parties exchange information about the facts of the case. This is called discovery. Discovery in civil cases is very similar to discovery in criminal cases, although there are a few minor differences.

What kind of information is exchanged in discovery?

Both criminal and civil discover use many of the same tools to ensure that they receive complete information from each side. These tools include:

  • Depositions: In a deposition, each party gets the opportunity to ask questions from a witness. The witness is under oath to tell the truth, but unlike trial, there are very few rules about the kind of questions that can be asked, and the witness generally has to answer most questions unless the information is privileged. This helps the parties get a fuller understanding of the events of the case and get an idea of what the witness might say if called to testify at trial.
  • Interrogatories: Interrogatories are like depositions, except the questions are written and directed only to a party in the lawsuit. The party must then respond (or object) in writing and sign a sworn statement that the information in the response to the interrogatory is the truth.
  • Requests to Admit: In a request for admission, one party will write a series of statements, and the other party may only answer by admitting or denying the statements. Attorneys use these statements to show that some statements are true without having to prove them at trial.
  • Document Production Requests: In the document production process, one party will give the other party documents related to the case. This is one area where civil and criminal discovery can be different. In a civil case, parties must request documents from each other, and need only turn over the documents that were requested. In a criminal case, the prosecution usually has a duty to provide certain documents to the defendant, regardless of whether or not it was asked. These can include police reports, transcripts of wiretaps, or, in the case of white collar crime, corporate records.
  • Disclosures: Some states mandate that the parties make certain disclosures to each other, although the exact disclosures will vary by state. They often include whether either party will use an expert witness, such as a doctor or ballistics expert. For criminal cases, the defendant is usually required to tell the prosecutor whether she is planning on giving any special defenses, such as insanity.

The discovery process can seem long and burdensome but it is very important to do it correctly. Information that is not disclosed to the other party during discovery may not be allowed in at trial, unless the parties learned about it much later. Proper discovery requires a close reading of your state's rules of procedure, and may be best handled by a local trial attorney.

For more information, see FindLaw's section on Litigation.

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