Why Might the Prosecution Hold Back Evidence from the Defense Attorney?
Interviewer: So why would the prosecution hold back evidence when they know it can potentially hurt their case?
Kevin: The majority of the time, the prosecutors are not going to give evidence until they’re ordered to do so. Once they’re ordered to give evidence, then of course, the prosecution has to produce it. Otherwise, they’re going to be penalized.
Evidence May Be Lost or Misfiled or Withheld by another Agency
Sometimes, the prosecutor just can’t get the information that’s been ordered. On occasion, the information may be lost or misfiled. There may be another agency that has the information and has refused to produce it.
For instance, the New Jersey Attorney General’s Office may have certain information concerning the maintenance records for the breath test device and it does not want to produce them. Additionally, the New Jersey Attorney General’s Office may not be interested in producing that information to the local prosecutor.
The local prosecutor’s would then be stuck between a rock and a hard place. If the prosecutor can’t produce the information, then either the charge may be dismissed or this would be cause for the preclusion of the breath test results or field sobriety testing results, depending on what hasn’t been produced.
How Will the Defense Attorney Proceed with the Discovery?
Interviewer: Okay. So, you ask for discovery, give me all you got, this info, and then what happens?
Kevin: Once you receive all the information, a thorough review should reveal issues that can be attacked. If these issues require motions, such as a motion to suppress evidence, because of a constitutional violation, or a motion to preclude the breath testing results, because the machine was not in proper working order, then those motions have to be filed in the court in writing.
The Defense Attorney May Want to Utilize Expert Witnesses
If there are other issues that should be addressed by an expert witness, then the discovery has to be sent out to the expert witness to review, in order for a report to be produced. That report can be used to further negotiations in the case. Once the defense has completed its discovery process and filed motions that are appropriate, then the case will be scheduled for a trial.