Prosecution Preparation: Discovery, Impeachment, and Trial Rules

Introduction

One of the harsh realities of the criminal justice system is the ability of defendants to defeat charges against them unless the prosecution has done its homework and prepared for the case properly. Irrespective of how thorough the criminal investigation may have been, or how much evidence is available to support a criminal charge, cases can be lost at trial when prosecutors fail to properly prepare for adjudication. In order to gain fresh insights in this area, this paper reviews the relevant literature to identify the evidentiary stages in the criminal justice process, including the discovery process, applicable case law, the defense tactic of impeachment, and general expectations for court and applicable rules — describing how officers can best prepare for trial.

Simply stated, the discovery process allows each party to a case to gain access to information that may be of use in prosecuting or defending that case. According to Black's Law Dictionary (1991), discovery is generally "the ascertainment of that which was previously unknown," but more specifically refers to "the pre-trial devices that can be used by one party to obtain facts and information about the case from the other party in order to assist the party's preparation for trial (Hardenbergh v. Both, 73 N.W. 2d 103, 106)" (p. 466).

The Discovery Process

For this purpose, subpoenas duces tecum can be used to acquire documentary evidence. So-called "John Doe" subpoenas "allow plaintiffs to discover the identity of anonymous online speakers from their ISP or from websites they visited. Without a successful John Doe subpoena, a target of anonymous online speech has no way to uncover his or her attackers and no legal remedy" (McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343, 1995)" (Gleicher, 2008, p. 320).

One of the more common tactics used by defense attorneys is the impeachment of prosecution witnesses. According to Black's Law Dictionary (1991), the impeachment of a witness means "to call into question the veracity of a witness, by means of evidence adduced for such purpose, or the adducing of proof that a witness is unworthy of belief" (McWethy v. Lee, 272 N.E.2d 663, 668). It should be noted that the laws concerning witness impeachment vary from state to state, but generally speaking, witnesses can be impeached for any of the following:

Defense Tactic of Impeachment

1. Prior inconsistent statements; or,
2. Contradiction of facts, bias, or character (Black's Law Dictionary, 1991, p. 753).

It is possible at trial, however, to "rehabilitate" an impeached witness through the introduction of new evidence that supports the witness's credibility (State v. Peterson, 219 N.W. 2d 664, 671) (Black's Law Dictionary, 1991).

Conclusion

The research showed that prosecutors have a great deal to consider when preparing a case for trial, including the discovery process that allows them access to information from the defense but which also permits defense attorneys to learn what evidence and witnesses the prosecution intends to present at trial. The research also showed that prosecutors must be prepared to defend the credibility of their witnesses against impeachment attacks from the defense, and that prosecutors must ensure that a valid chain of custody has been maintained by law enforcement authorities to preserve evidence for trial. Finally, although every case is unique, prosecutors should familiarize themselves with the protocols and practices followed in their courts of competent jurisdiction in ways that will help them avoid surprises and costly mistakes.