Sunday, December 28, 2008

Discovery Discussion--and How Criminal and Civil Cases Differ


A commenter (thanks, Alaska) asked questions about how discovery works, and I am posting my response here because these questions seem to come up frequently.

Discovery is a process required under American law in which one side gives information on the case to the other side. Discovery rules vary by jurisdiction.

In criminal law, discovery was traditionally one-way: The prosecution gave evidence to the defense, but the defense gave nothing to the prosecution. Recently, however, some jurisdictions--including Alaska--have required the defense to provide some discovery to the prosecution. It is still true, though, that the prosecution provides much more information to the defense than the other way around.

The list of what discovery the prosecution is automatically required to provide under Alaska law includes copies of any written and recorded statements made by the defendant; any papers or documents which the prosecution intends to use at trial; any papers or documents which were obtained from or belong to the defendant; and any material or information which tends to negate the guilt of the defendant as to the offense.

An example of what Alaska law requires the defendant to produce to the prosecution is the name, address, and written report of any expert witness. Another example of the limited discovery from the defendant required under Alaska law is that the defendant must give the prosecution advance notice of defenses including alibi, entrapment, and duress.

As this blog has discussed before, the federal rules for discovery require less discovery from the prosecution than Alaska law does.

The prosecution in criminal cases--whatever the jurisdiction--generally has to provide automatically more information than any party has to provide in civil cases of any kind. There generally is a different discovery process in civil matters such as employment mediations than exists in criminal cases.

There are other differences in the ways that criminal cases and civil cases proceed. Civil cases often drag on a long time, while speedy trial rules keep all but the most serious and complicated criminal cases moving along much faster. Civil cases tend to feature depositions and written requests like interrogatories and requests for production. A higher percentage of criminal cases are tried than civil cases.

After handling both kinds of litigation, I have said that lawyers are always preparing to try civil cases but somehow the trial almost always gets derailed by a settlement or some other resolution sort of trial. Attorneys in criminal cases, however, did not get to prepare as much but are often actually going to trial. This is particularly true with misdemeanors. Lawyers handling felonies--particularly a very well-financed team like the attorneys at Williams & Connolly in white-collar crime cases--often do have more time to prepare more like lawyers in civil cases.