Discovery is the process by which the prosecution and defense exchange information about a criminal case. Both sides need this information to decide whether the case can be resolved by a plea agreement or has to be set down for a trial. The process of discovery is controlled by certain rules. The rules of discovery are set out in O.C.G.A. § 1716-1 thru O.C.G.A. § 17-16-23 known as the Criminal Procedure Discovery Act (“the Act”).
The Act applies only to those cases in which the defendant elects by written notice to have it apply. It imposes discovery obligations upon both the defendant and the prosecution. There is no general constitutional right to discovery in a criminal case. Therefore, if a defendant does not elect to have the Act apply to his case he is only entitled to a limited amount of information from the prosecution. State v. Lucious, 271 Ga. 361, 370 (1999), setting forth the information to which a defendant who does not elect to have the discovery rules apply is still entitled.
The prosecution, upon motion by the defendant, has the duty to produce anything that is exculpatory or impeaching. Brady v. Maryland, 373 U.S. 83 86(1963); Hendricks v. State, 290 Ga. 238 (2011). Brady is involved when the suppressed evidence is material, that is, if disclosed the result of the proceeding would have been different. Young v. State, 290 Ga. 441 (2012).
The defendant opts in, or makes the discovery rules apply to his case by giving written notice to the prosecutor that the rules will apply. When one defendant in a multi-defendant case opts into discovery, it shall apply to all defendants unless their cases are separated for trial.
Once a defendant elects to have the Act apply to his case, he will receive a discovery packet from the prosecutor. The discovery packet contains copies of documents from the prosecution file. The discovery packet gives the defense some indication of the nature of the case against the defendant and helps the defendant frame a defense. For example, the discovery packet will tell the defense if there are eyewitness identifications, statements by the defendant, statements of witness, inconsistencies in statements, and other information that will allow a defense attorney to create motions to suppress and otherwise prepare for trial. It also helps determine if a plea bargain is in the defendant's best interest.
Time for Discovery
Under O.C.G.A. § 17-16-3, every defendant is 87entitled prior to arraignment to a copy of the indictment or accusation and a list of witnesses against him. The other provisions of the Act direct the prosecutor to provide discovery ten days before trial unless the judge sets another time. However, as a matter of practice, discovery is usually furnished earlier in the process, often around arraignment. Some judges set scheduling orders which tell the parties when discovery, motions, and other matters are due. Most defense attorneys give the defendant a copy of the discovery, but there is no rule requiring counsel to provide a defendant with copies of all discovery materials.
Discoverable Items
The Act requires the prosecution and the defense to disclose all discoverable material. The rules do not allow discovery of attorney work product. Further, the Act was not intended to apply to public information to which a defendant already has access. Gonzales v. State, 286 Ga. App. 821 (2007).
Information about Witnesses
When a defendant opts into discovery under the Act, O.C.G.A. § 17-16-8 (a) requires that the prosecuting attorney furnish to defense counsel “not later than ten days before trial . . . the names, current locations, dates of birth, and telephone numbers of the State's witnesses." The defendant's attorney is required to furnish the same information within ten days of the prosecutor's notice but no later than five days prior to trial. The statute imposes an affirmative duty on the producing party to attempt to acquire the information. They cannot simply say that it is not within their possession. State v. Dickerson, 273 Ga. 408 (2001).
The witness list rule is designed to prevent a party from being surprised at trial by a witness that they have not had an opportunity to interview. Powers v. State, 314 Ga. App. 733 (2012). When the identity and involvement of a witness is disclosed to the defendant in the discovery, the purpose of the witness rule is served and the judge can allow the witness to testify even though the witness was not listed on the State's witness list. Wilkins v. State, S12A0658; McLarty v. State, 238 Ga. App. 21 (1999).The judge may allow an exception to the time rule where good cause is shown and the opposing attorney is given an opportunity to interview the witness. O.C.G.A. § 17-16-8(a); Chance v. State, 291 Ga. 241 (2012); Norris v. State, 289 Ga. 154 (2011); Rose v. State, 275 Ga. 214 (2002). The witnesses are not required to speak to the attorney. Norris v. State, 289 Ga. 154 (2011); Mclarty v. State, 238 Ga. App. 27 (1999). Either party may call as a witness any person listed on either the prosecution or defense witness list. O.C.G.A. § 17-16-10.
Witness Statements
No later than ten days prior to trial, or at such time as the judge permits, or at the time of any post indictment pretrial evidentiary hearing other than a bond hearing, the prosecution or the defendant shall produce for the opposing party any written or recorded statement of any witness that is in their possession, custody, or control that relates to the subject matter concerning the testimony of the witness. Under O.C.G.A. § 17-16-1(1), an item within the possession, custody, or control of a law enforcement agency involved in the investigation of the case being prosecuted is within the possession, custody, or control of the prosecution. A party is not entitled to an oral unrecorded statement. Downs v. State, 257 Ga. App. 696 (2002).
Statements & Criminal History of Defendant
Under O.C.G.A. § 17-16-4, the prosecutor must disclose to the defendant and make available for inspection, copying, or photographing any relevant written or recorded statements by the defendant, including statements of co-conspirators that are attributable to the defendant. The prosecutor must also furnish the defendant a copy of his criminal history.
Alibi
Upon written demand by the prosecutor within ten days after arraignment, or at such time as the judge permits, stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days of the demand of the prosecutor or ten days prior to trial, whichever is later, or as otherwise ordered by the judge, upon the prosecutor a written notice of the defendant's intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied. The defendant must give notice of his alibi even if he is the only witness planning to testify to his alibi. State v. Charbonneau, 281 Ga. 46 (2006).
The prosecutor shall serve upon the defendant within five days of the defendant's written notice of alibi but no later than five days before trial, whichever is later, a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the State, upon whom the State intends to rely to challenge the defendant's evidence of alibi, unless previously supplied.
Tangible Items
Under O.C.G.A. § 17-16-4, the prosecution must permit the defendant at a time agreed to by the parties or ordered by the judge to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the State or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution´s case-in-chief or rebuttal at the trial. The duty to disclose only exists if the State intends to use the items at trial. Zamora v. State, 291 Ga. 512 (2012). The prosecution must also allow inspection or copying of items that were obtained from or belong to the defendant regardless of whether the prosecutor intends to use these items at trial. Evidence that is within the possession, custody, or control of the Forensic Sciences Division of the Georgia Bureau of Investigation or other laboratory for the purpose of testing and analysis may be examined, tested, and analyzed at the facility where the evidence is being held pursuant to reasonable rules and regulations.
The State must allow the defendant at a time agreed to by the parties or ordered by the judge to inspect and copy or photograph a report of any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report if the State intends to introduce this in evidence at trial. This does not include any material, note, or memorandum relating to the psychiatric or psychological treatment or therapy of any victim or witness.
Also, the Act does not require the State to have its expert witness prepare a report; rather, it requires that if such a report exists, it be made available to the defendant. Hullander v. State, 271 Ga. 580 (1999). The defendant must within ten days of compliance by the prosecutor, but no later than five days prior to trial, permit the inspection or copying of books, papers, documents, etc., physical or mental examinations and of scientific tests or experiments.
The prosecutor shall, no later than ten days prior to trial, or at such time as the judge orders but in no event later than the beginning of the trial, provide the defendant with notice of any evidence in aggravation of punishment that the State intends to introduce in sentencing.
Under O.C.G.A. § 17-5-56 governmental entities in possession of any physical evidence in a criminal case, including, but not limited to, a law enforcement agency or a prosecuting attorney, shall maintain any physical evidence collected at the time of the crime that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the crime. Biological samples collected directly from any person for use as reference materials for testing or collected for the purpose of drug or alcohol testing shall not be preserved. In a case in which the death penalty is imposed, the evidence shall be maintained until the sentence in the case has been carried out. Evidence in all felony cases that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the crime shall be maintained for the period of time that the crime remains unsolved or until the sentence in the case is completed, whichever occurs last. A defendant seeking to have certain materials preserved should file a particularized motion specifying which items the defendant seeks preserved. Clay v. State, 290 Ga. 822 (2012).
Discovery Violations
There are penalties for failing to abide by the discovery rules. The judge can order compliance with discovery including an opportunity to interview witnesses or the judge can grant a continuance. Patterson v. State, 312 Ga. App. 793 (2012). A defendant must request a continuance to cure any prejudice which may have resulted from the prosecution's failure to comply with the rules of the Act. Jones v. State, 290 Ga. 576 (2012); Hayes v. State, 249 Ga. App. 857 (2001). The requirement that a defendant must ask for a continuance applies even if it would result in the waiver of a defendant's speedy trial demand. Rosas v. State, 276 Ga. App. 513 (2005). However, a prosecutor's demand that a defendant waive his right to a speedy trial in order to receive the discovery to which he is entitled “deprives the defendant of his due process rights under the state and federal constitutions.” Ditman v. State, 301 Ga. App. 187 (2009).
Only if the judge finds a party that has acted with bad faith and caused the other side prejudice, the judge can prohibit the evidence or witness altogether. O.C.G.A. § 17-16-6. Wilkins v. State, 291 Ga. 731 (2012). The judge also has the power to limit discovery upon a sufficient showing that discovery would create a substantial threat of physical or economic harm to a witness. O.C.G.A. § 17-16-4 (d); Jones v. State, 290 Ga. 576 (2012; Boykin v. State, 264 Ga. App. 836 (2003).
The failure to preserve evidence does not automatically constitute a constitutional violation. Williams v. State, 317 Ga. App. 248 (2012).