Overview of Discovery in a Criminal Case


Discovery is the process by which a criminal defendant finds out what evidence the prosecution and law enforcement have against him or her. Generally, the prosecution’s duty to provide discovery is triggered when a specific request or motion for discovery is made by the defendant. In the case of a felony, discovery is not available until after a grand jury indictment or a prosecutor’s information. This rule can be altered by agreement between the prosecutor and counsel for the defendant. For example, it is not unusual for a defendant to waive their right to a preliminary hearing in exchange for early discovery.

There are certain items of discovery that are required to be disclosed by law. The legal sources for discovery in a criminal case are found in either the Rules of Criminal Procedure or the Due Process Clauses of the United States Constitution and West Virginia Constitution, as set forth in the applicable case law.

Rule 16(a) of the West Virginia Rules of Criminal Procedure provides the basic framework for items to be produced to a criminal defendant. That Rule requires the prosecution to disclose:

  • Any statement made by the defendant
  • The defendant’s prior criminal record
  • Documents and tangible things
  • Reports of examinations and tests
  • Expert witnesses, along with their opinions, bases, and reasons for opinions, and qualifications
  • Lay witnesses along with their respective criminal record

Rule 26.2 of the West Virginia Rules of Criminal Procedure requires disclosure of any statement of a prosecution witness. A statement of a prosecution witness is only required to be disclosed after the witness testifies on direct examination although, in practice, the statement is usually produced prior to their testimony. This Rule applies to witnesses testifying at suppression hearings, trial, sentencing hearings, and probation revocation hearings.

The Due Process Clauses of the United States Constitution and West Virginia Constitution require the disclosure of the following:

  • Fraudulent or perjured testimony used against a criminal defendant that is known to the prosecution and goes uncorrected. See Mooney v. Holohan, 294 U.S. 103 (1935); State ex rel. Pinson v. Maynard, 181 W. Va. 662, 383 S.E.2d 844 (1989).
  • Exculpatory evidence or “Brady material.” This is defined as any material evidence that is favorable to the accused and which may negate or tend to negate guilt for the offense alleged or which may mitigate punishment. See Brady v. Maryland, 373 U.S. 82 (1963); State v. Hatfield, 169 W. Va. 191, 286 S.E.2d 402 (1982).
  • Impeachment evidence or “Giglio material.” Courts have extended the Brady rule to any evidence that may be used to impeach or attack the credibility of a prosecution witness. See Giglio v. United States, 405 U.S. 150 (1972).
  • Witnesses advised not to communicate with a criminal defendant’s attorney. If requested by motion, a court can compel a witness to make him or herself available to talk with defense counsel. See State v. Harr, 156 W. Va. 492, 194 S.E.2d 652 (1973).
  • Sampling of drug or narcotic for scientific analysis. Under proper supervision, a person charged with a drug crime can be permitted to examine the alleged illegal substance. See State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972).
  • Photographs used for identification purposes. Photograph displays used during a pretrial identification process must be disclosed to determine whether it was improperly suggestive. See State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978).

The constitutional duty to provide Brady and Giglio material applies not only to the prosecutor’s office but also to law enforcement officers and other agents of the prosecution. See State v. Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007); Kyles v. Whitley, 514 U.S. 419 (1995).

Discovery in a criminal case must be evaluated on a case-by-case basis. Discovery should be reviewed carefully to determine if anything is missing. Our attorneys analyze discovery multiple times to ensure that no stone is left unturned. We have had great success in obtaining discovery through the court that the prosecution initially refused to provide.