Pretrial discovery

The bulk of discovery flows from the prosecution to the defense. The state is required to disclose the evidence it intends to use and evidence that could help the defense. In practice, discovery in a Nevada criminal case typically includes:

Police reports. Written accounts by investigating officers of what they did, what they observed, and what they were told. These are usually the first documents produced. They identify witnesses, describe the basis for the stop or arrest, and provide the defense's first look at what legal issues are likely to arise, including whether any rules were broken. One caveat: the police write their own reports, so misconduct can simply be left out. What's not in the report can tell you as much as what is.

Video evidence. Three types appear most often:

• Body camera footage. Worn by the responding and arresting officers. It often captures the arrest itself, conversations with witnesses at the scene, and the defendant's statements (or silence). In most cases it is some of the best evidence available, and it is only kept for a limited time.
• Dashcam video. Recorded from the front of police vehicles. It captures traffic stops, pursuits, and the circumstances of initial contact. It is central in DUI, eluding, and traffic cases.
• Security camera footage. From government traffic cameras, business surveillance systems (retail stores, gas stations, parking lots), or private residential cameras like Ring doorbells. It can back up or contradict the prosecution's timeline.

Seized digital evidence. If law enforcement obtained a search warrant for a phone, laptop, or other device, the contents are produced as digital images of those drives. Social media records subpoenaed from Facebook, Instagram, Google, or other platforms, including private messages, also come through discovery if the prosecution obtained them.

Lab reports and expert analysis. DNA results, toxicology reports in DUI cases, ballistics analysis, forensic accounting reports in fraud cases, and any other expert examination the prosecution intends to rely on.

Under the Supreme Court's decision in Brady v. Maryland, the prosecution is constitutionally required to disclose evidence that is "material" to guilt or punishment, including evidence that helps the defense. Lawyers call this the Brady rule. Evidence that helps the defense is called exculpatory evidence: anything that casts doubt on whether the defendant committed the crime, undermines the credibility of a prosecution witness, or reduces the defendant's culpability.

Examples include:

• A witness statement that contradicts the prosecution's account
• Evidence that another person may have committed the offense
• Prior misconduct by a police officer whose testimony the prosecution relies on
• A lab result that doesn't support the prosecution's theory
• Evidence of a motive for a witness to lie

The prosecution also must disclose evidence that, while not itself exculpatory, is likely to lead to the discovery of exculpatory evidence. What the prosecution does not have to disclose is its internal work product: legal strategies, mental impressions, and documents prepared in anticipation of litigation. That material is protected and not subject to discovery.

Discovery runs both ways. The defense must also disclose certain evidence to the prosecution before trial. This is called reciprocal discovery. It includes:

• Alibi evidence. If the defense intends to argue the defendant was elsewhere when the crime occurred, the prosecution must be notified. An alibi witness who appears at trial without prior disclosure can be excluded.
• Expert witnesses and reports. If the defense plans to call an expert (a ballistics examiner, a forensic accountant, a medical expert), both the expert's identity and their written report must be disclosed to the prosecution in advance.
• Witness lists and exhibits. The defense must provide the prosecution with a list of witnesses it intends to call and exhibits it intends to introduce at trial.

Reciprocal discovery requirements exist to prevent trial by surprise on both sides. Failing to comply can get witnesses or evidence excluded, so the defense has to meet its own disclosure deadlines carefully.

If the defense believes the prosecution has evidence it hasn't produced, the first step is a direct request to the prosecutor. Often this resolves the issue. The evidence was overlooked or not yet compiled. If the prosecutor refuses, the defense files a Motion for Discovery asking the court to order production.

A Brady violation is the prosecution's failure to disclose exculpatory evidence. When one is discovered during or after trial, the consequences can be serious:

• A mistrial can be declared if the hidden evidence surfaces during trial and prejudiced the defendant's ability to defend.
• If the prosecution intentionally withheld evidence, the mistrial may be "with prejudice," meaning the case is dismissed entirely and cannot be retried.
• If a conviction has already occurred, newly discovered Brady evidence can support a motion for a new trial or a post-conviction petition.

Getting complete discovery, including chasing evidence that should exist but hasn't been produced, is a large part of a defense attorney's job from the first week of the case to the last.

Once your case resolves, you may be eligible to seal the record, which removes it from background checks. If you were convicted and believe legal errors occurred at trial, an appeal may be an option.