At arraignment, a judge will order the prosecutor to provide “discovery” to the defendant or the defendant’s attorney.
Discovery consists of any evidence that’s relevant to the case—whether it helps to prove the defendant’s guilt or innocence.
Discovery in criminal proceedings is regulated by Rule 14 of the Massachusetts Rules of Criminal Procedure. According to section (a)(1)(A) of Rule 14, a prosecutor must give to the defendant:
- Any written or recorded statements made by the defendant or a co-defendant;
- Any exculpatory evidence or facts;
- Names, addresses, and dates of birth for all the Commonwealth’s witnesses;
- Names and business addresses for any witness that is a police officer or law enforcement agent;
- Expert witnesses and their opinions must be disclosed;
- All police reports, photographs, physical evidence, scientific tests, etc.;
- A summary of the procedures used to identify the defendant; and
- All promises, rewards, and inducements made to state witnesses.
In theory, this material should be provided to the criminal defense attorney without a request being made. In practice, however, the defendant’s attorney will most likely email or call the prosecutor directly and ask for the evidence.
All discovery should be given to the defendant prior to the pretrial conference and the pretrial hearing. This, again, isn’t always how it works out in practice.
Because many—if not most—criminal cases end with a plea deal during the pretrial proceedings, prosecutors will often wait to see how things go on the pretrial date before taking the time to gather discovery. If this happens in your case, the pretrial conference/hearing will be rescheduled and the requested discovery will most likely be provided in the meantime.