Maine attorney for workers' compensation, criminal defense, civil litigation, and small business matters.

Maine criminal law blog

A humble collection of pieces about issues in Maine criminal law and procedure by Maine attorney Zachary J. Smith.

“Discovery” in Maine Criminal Procedure

Criminal defendants who are not experienced with the legal system often have questions about their access to the evidence that the prosecution or law enforcement has (or claims to have) against them. Sometimes they are upset because they are not given copies of police reports, photographs, witness statements, videos, or other pieces of tangible evidence before their first appearance in court. They also may not know what discovery means or what evidence they are entitled to see before trial. The following tidbits cover the basics of discovery.

Discovery, technically speaking, refers to the process that opposing parties or opposing counsel use to exchange the evidence or information (such as witness lists) that they intend to rely on in court at a hearing or trial. However, it has also come to mean the evidence or information itself, as in we’ll review your discovery next week at my office.

A defendant’s right to review the evidence usually begins with his or her first appearance on a charge, and the State’s attorney (the prosecutor) has a constitutional obligation to provide new discovery to the defense if it becomes available. The State is not allowed, for example, at a trial to call “surprise” witnesses or use evidence that it failed to disclose to the defense.

The State also has a constitutional obligation to disclose the exculpatory evidence — that is, any evidence that tends to show the defendant is innocent — that it possesses to the defendant or defense counsel when it becomes available. The government’s law enforcement representatives are not allowed to hide evidence that could exonerate a defendant. Although this constitutional right is different from the right to discovery, exculpatory evidence is often provided to the defense under the discovery rules.

Keep in mind: I have stripped complex doctrines and procedural mechanisms down to their rudimentary concepts here. This is not the place to discuss the full extent of the Brady and Giglio doctrines, the way that discovery may be conducted in a difficult case, the discovery-related obligations of the defendant, and so on.