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The Spodek Law Group understands how delicate high-profile cases can be, and has a strong track record of getting positive outcomes. Our lawyers service a clientele that is nationwide. With offices in both LA and NYC, and cases all across the country - Spodek Law Group is a top tier law firm.

Todd Spodek is a second generation attorney with immense experience. He has many years of experience handling 100’s of tough and hard to win trials. He’s been featured on major news outlets, such as New York Post, Newsweek, Fox 5 New York, South China Morning Post, Insider.com, and many others.

In 2022, Netflix released a series about one of Todd’s clients: Anna Delvey/Anna Sorokin.

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What Are Criminal Defense Discovery Obligations

What Are Criminal Defense Discovery Obligations

Discovery is the process of obtaining evidence and information about a case from the opposing party prior to trial. While typically associated with prosecutors providing evidence to the defense, discovery obligations also apply to criminal defendants in many jurisdictions. This article will examine the key laws and principles governing criminal defense discovery.

Key Federal Rules on Criminal Defense Discovery

Federal Rule of Criminal Procedure 16(b) contains the main obligations for federal criminal defense discovery. It requires defendants to provide discovery if they request discovery from prosecutors and applies in several key situations:

Documents and Objects

If the defense asks to inspect documents or objects in the prosecution’s possession, they must provide access to documents and objects they intend to use at trial. This allows both sides to examine evidence like murder weapons.

Scientific Reports

The defense must disclose reports of any mental or physical exams and scientific tests they intend to use at trial. This includes psychological evaluations of a defendant’s mental state.

Expert Witness Summaries

For any expert witnesses, the defense must provide a summary of their qualifications and expected testimony. This allows prosecutors to prepare for technical testimony.

Alibi Witness Notice

If asserting an alibi defense, the defense must disclose their alibi witnesses. This prevents last-minute surprises at trial.


Documents and objects must be produced no later than 30 days before trial, while summaries and notices must be provided by the court’s deadline. Late disclosures can be excluded from trial.

Noncompliance Penalties

Courts can impose sanctions for failure to comply with discovery, ranging from fines and fees to excluding evidence or testimony. Severe violations can result in jail time or overturning convictions.

Key State Laws and Variations

While federal discovery rules provide a baseline, individual states have their own laws and interpretations that defense lawyers must follow. Some key differences include:

  • Work Product Protection – Some states exempt attorney work product from discovery, like notes on witness interviews. Others provide more limited protections.
  • Witness Names and Statements – Many states require disclosing names and prior statements of defense witnesses if the defense requests names of prosecution witnesses.
  • Alibi Notice – Some states require more detailed alibi disclosures than federal rules, such as specific locations defendants claim to have been.
  • Timing – State deadlines for disclosure range from 30 days to 10 days to 3 days before trial. Running up against deadlines is risky.
  • Physical Evidence – A minority of states require defendants disclose some physical evidence they plan to introduce, not just documents.

How Defense Lawyers Approach Discovery

While reciprocal discovery creates obligations, skilled defense lawyers use various strategies to control disclosures:

  • File targeted discovery requests for only essential evidence to limit reciprocal duties.
  • Delay requests until necessary to provide less time for prosecutors to leverage discoveries.
  • Seek protective orders to limit disclosure of sensitive information like medical records.
  • Argue that work product, such as defense investigator reports, is privileged and non-discoverable.
  • Avoid putting a defendant on the stand if their testimony would open them to broad discovery.
  • If possible, decline to give pretrial notice of defenses like alibi or insanity to avoid disclosures.
  • Only disclose bare minimum summaries and boilerplate language for expert witnesses.
  • Withhold disclosures until deadlines to restrict prosecutorial advantage.
  • If harmful discoveries must be made, evaluate chances of getting charges dismissed or reduced via plea bargain.

Key Defense Discovery Obligations

While defense discovery varies by jurisdiction, some common categories of evidence that may need to be disclosed include:

Documents and Tangible Objects

  • Any documents the defense plans to introduce at trial, such as financial records, correspondence, photographs, or business records.
  • Tangible evidence like guns, ammunition, blood samples, or narcotics the defense intends to admit into evidence.

Scientific Reports and Tests

  • Results of medical exams, mental health evaluations, polygraph tests, forensic studies or any other scientific tests the defense plans to use at trial.

Witness Names and Statements

  • Names, contact information, and prior statements of any witnesses the defense plans to call, especially alibi witnesses.

Expert Witness Summaries

  • Qualifications, subject matter, and summaries of expected testimony for any expert witnesses.

Potential Defenses

  • Pretrial notice of planned defenses such as alibi, insanity, self-defense, etc. to allow prosecutors to prepare rebuttals.

Police Personnel Files

  • Portions of police personnel files necessary to cross-examine officers regarding alleged misconduct or dishonesty.

Strategic Considerations for Defense Discovery

Deciding what evidence to disclose involves key strategic choices:

  • Assess how discoverable information helps or harms the defense case and plea bargaining leverage.
  • Determine if non-disclosure risks harsh sanctions versus harm from disclosing.
  • Carefully craft summaries of witnesses and experts to limit prosecutor advantage.
  • Argue against disclosing privileged or protected information like attorney work product.
  • Withhold disclosures of critical witnesses like alibis until deadlines to maintain advantage.
  • File discovery requests narrowly to reduce reciprocal duties or avoid them altogether.
  • Seek protective orders for information that could endanger defendant safety if leaked.
  • Balance ethical duties of zealous advocacy with good faith discovery compliance.


While most discovery focuses on prosecutors, criminal defendants also face duties to disclose evidence in discovery. Defense lawyers must carefully navigate discovery rules and strategically manage evidence disclosures. Done effectively, this allows defendants to achieve the best outcomes in plea negotiations or at trial. Though reciprocal discovery creates challenges, skilled defense attorneys can still uphold their duty of zealous advocacy despite obligations to share some information.


[1] https://www.justice.gov/jm/jm-9-5000-issues-related-trials-and-other-court-proceedings [2] https://fastlawpc.com/what-are-criminal-defense-discovery-obligations/ [3] https://www.justice.gov/usao/justice-101/discovery [4] https://www.nolo.com/legal-encyclopedia/the-defense-s-duty-turn-over-discovery.html [5] https://www.justia.com/criminal/procedure/discovery-in-criminal-cases/ [6] https://www.shouselaw.com/ca/blog/discovery-criminal-law/

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