When I take on a new criminal misdemeanor, it’s important to learn everything about my new client, but also to learn everything about the allegations that the client is facing. I call this the information gathering stage. Discovery is obtained through the police, prosecutor, outside agencies and private persons and businesses. Everything from the officer’s police report to a surveillance video from a department store.
In Michigan, discovery in criminal cases is governed by MCR 6.201 and MCL 767.94a. Discovery can be conducted in Michigan via a discovery demand to the prosecution and police, the Freedom of Information Act (FOIA) or a subpoena to a witness for both testimony and.or physical evidence. It’s important to be broad and expansive as possible; even if you’re not sure an item exists (a video), it must be requested to be preserved and obtained or it can be destroyed as time goes on.
The process of obtaining discovery assists in identifying potential motions to file, trial defenses and creation of leverage for negotiation. Discovery obtained from these external sources is only half the story; my client, his/her witnesses and potential physical evidence is the other half of the equation. The defense team should hold the information advantage; the prosecutor has everything from the police department and agencies, but the defense has all of that plus their client’s discovery.
Having both sides of the case is the key to leveraging the discovery process for use in pre-trial litigation, trial or brokering a deal. In a DUI case in Michigan, here are some common things we’re looking to obtain:
1. Officer’s police report
2. Client’s driving record & criminal background
3. Field Sobriety tests
4. Datamaster test results and/or Michigan State Police labs
5. Dispatch logs
6. 911 and dispatch recordings
7. In-car dash cam videos
8. Booking/Datamaster video
9. Miranda warnings waiver sheet
10. Chemical test right sheet
11. Accident reports
12. Client and/or witness statements
14. Personnel file of the officers
15. Datamaster calibration records/test results
16. Gas Chromatography Michigan State Police records
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