OLR Report 2013-R-0433 summarizes the discovery rules governing the sharing of information between prosecutors and defendants in state criminal proceedings.
Discovery is the process by which opposing parties in a lawsuit obtain documents, information, and other evidence from each other prior to trial. In criminal cases, the opposing parties are prosecutors and defense attorneys (or the defendants themselves if they are not represented by counsel). Court rules generally govern the discovery process. A few statutes also apply, such as those governing privileged communications between certain people (for example, communications between attorneys and their clients and psychiatrists and their patients). Constitutional rights may also affect the disclosure of information during discovery. This report focuses on disclosures in criminal cases required during discovery under court rules. References to the “defendant” include defense counsel.
Under court rules, if the defendant requests it, the prosecutor must disclose to the defendant the existence of a number of items, provide copies of them, or allow the defendant to inspect and copy them. This includes (1) exculpatory (favorable to the defendant) information and certain reports and statements; (2) names and addresses of witness for trial; and (3) law enforcement reports, affidavits, and statements. Certain information is not subject to disclosure, such as internal prosecutorial or law enforcement documents, legal research, and records identifying the prosecutor's opinions or theories.
If the prosecutor requests it, the rules require the defendant to disclose to the prosecutor the existence of certain items in writing and make them available for examination and copying. This includes (1) items the defendant intends to offer as evidence and (2) expert reports or statements that will be used as evidence or are related to a witness' testimony. On request, defendants must also disclose whether they will raise certain defenses or alibis and provide witness' names, addresses, and statements.
On a motion by the prosecutor, the court can order a defendant to undergo a psychiatric examination or provide nontestimonial evidence. Nontestimonial evidence includes asking the defendant to move or speak in a lineup or submit to fingerprinting. The prosecutor or defendant can also seek a court subpoena to depose certain witnesses.
The rules require the prosecutor and defendant to make good faith efforts to secure documents or objects that are the subject of discovery orders (Conn. Practice Book (CPB) §§ 40-2 and -5). They must notify the other party and the court if additional material that must be disclosed is discovered (CPB § 40-3). But a prosecutor or defendant can object to, and a court can deny, disclosure of an item. The court can also grant a protective order to deny or restrict disclosure.
For more information, read the full report.
