In Georgia’s criminal justice system, a “Defendant’s Demand for Discovery and Inspection” is a formal request the accused makes to the prosecution to obtain the evidence the state holds against them. This process is intended to ensure a fair trial by allowing the defendant to understand the case being built by the prosecution. By reviewing the state’s evidence, the defense can identify weaknesses, prepare counter-arguments, and prevent surprises at trial.
Understanding Discovery in Georgia Criminal Cases
Discovery is a regulated pre-trial procedure in Georgia’s criminal courts, governed by the state’s Criminal Procedure Code. The process prevents “trial by ambush” by allowing both the defense and prosecution to access the evidence the other side intends to present. This transparency allows for more thorough trial preparation and can facilitate plea negotiations by giving both sides a realistic view of their case.
For the discovery rules to apply in a felony case, the defendant must “opt in” by providing written notice to the prosecutor.1Justia Law. Georgia Code § 17-16-2 (2020) – Applicability of Article Once the defendant opts in, the obligation to share evidence becomes reciprocal, meaning the defense must also provide the prosecution with certain information it plans to use at trial. This exchange ensures the trial’s outcome is based on the merits of the evidence.
Evidence Subject to a Defendant’s Demand
A defendant’s demand can compel the prosecution to turn over a wide range of materials. This includes any relevant written or recorded statements made by the defendant, whether before or after arrest. If the defendant made an oral statement to a law enforcement officer, the prosecution must provide the substance of that statement. The prosecution must also provide any evidence that may be favorable to the defendant, known as exculpatory evidence or “Brady material.”
Other discoverable materials include:
- Statements made by any co-defendants in the case.
- A list of witnesses the prosecution intends to call, including their names, addresses, and phone numbers.2Justia Law. Georgia Code § 17-16-8 (2024) – Lists of names and information concerning witnesses
- Any statements those witnesses have made that relate to the subject matter of their testimony.3Justia Law. Georgia Code § 17-16-7 (2020) – Statements of Witnesses
- Police reports and the investigative notes that form the basis of the case.
- Books, papers, documents, photographs, and other tangible objects that are material to the defense’s preparation or that the prosecutor intends to use at trial.
- Reports from physical or mental examinations, as well as the results of scientific tests or experiments.
The defendant has the right to inspect, copy, or photograph these materials within the prosecution’s control.4Justia Law. Georgia Code § 17-16-4 (2024) – Disclosure required by prosecuting attorney and defendant; inspections allowed; reducing oral reports to writing; continuing duty to disclose; discovery creating threat of physical or economic harm
The Formal Process for Demanding Discovery
To initiate discovery, a defendant or their attorney must file a written document with the court, typically titled “Defendant’s Demand for Discovery and Inspection.” This document must also be formally served on the prosecuting attorney’s office to trigger the state’s legal obligations. Simply asking for the evidence informally is not enough; the demand must be a formal, written motion to be legally enforceable.
The demand is usually filed at or before the arraignment, or within 10 days after the indictment or accusation. This procedural formality creates a clear record that a demand was made on a specific date. This record is important if the prosecution fails to respond appropriately, as it forms the basis for any subsequent legal action.
The Prosecution’s Obligations to Respond
Once the prosecution receives a valid discovery demand, it is under a legal duty to provide the requested materials. The prosecutor must furnish the discoverable information no later than ten days prior to the trial, or as otherwise ordered by the court. This deadline ensures the defense has a reasonable amount of time to review the evidence and incorporate it into their trial strategy.
The prosecution’s duty is a continuing obligation. If the prosecutor discovers new evidence or materials that fall under the original demand after their initial response, they must promptly notify the defense and make the new evidence available. The response must allow the defendant to inspect and make copies of the documents, photos, and other materials provided.
Addressing Non-Compliance by the Prosecution
If the prosecution fails to comply with a discovery demand or provides an incomplete response, the defendant has recourse through the court by filing a “Motion to Compel Discovery.” This motion asks a judge to issue a formal order compelling the prosecutor to turn over the withheld evidence. The motion outlines what was requested, what was received, and why the defendant is entitled to the materials.
Should a judge find that the prosecution has failed to meet its discovery obligations, there are several potential remedies. The judge can order the immediate disclosure of the evidence or grant a continuance, postponing the trial to give the defense adequate time to review the new material.5Justia Law. Georgia Code § 17-16-6 (2020) – Failure to Comply With Discovery Requirements In more serious cases, a judge has the authority to prohibit the prosecution from introducing the undisclosed evidence at trial.