Pennsylvania DUI: Mandatory vs. Discretionary Discovery: Must v. May

Discovery is a critical part of any criminal case and driving under the influence (DUI) is no exception.

The rule that every criminal defense attorney should follow during discovery is that no piece of potential evidence is too small or insignificant. The Pennsylvania Rules of criminal procedure, specifically Rule 573, govern, pre-trial discovery and inspection. The discovery period is supposed to give an accused person every opportunity to uncover evidence that he either didn’t know existed and to allow his attorney to prepare for trial. The purpose of discovery is to avoid surprises.  In a DUI prosecution the following pieces of evidence are considered mandatory and therefore the Commonwealth (aka the prosecution) must provide it the defense:

  1. Any evidence favorable to the accused that is material either to guilt or to punishment. This would include the results of field sobriety test;
  2. Any written confession or inculpatory statement along with the substance of any oral confession along with the identity of the person;
  3. The Defendant’s prior criminal record;
  4. The results any identification of the Defendant by voice, photograph, or in person identification;
  5. Any results or reports of scientific tests, expert opinions, or written expert reports. This would include blood test, breathalyzer test along with the reports associated with each;
  6. Any tangible objects, documents, or photographs or other tangible evidence; and/or
  7. Transcripts and recordings of any electronic surveillance.

In addition to mandatory discovery, the court may order the prosecution to produce the more information upon the request (motion) of the defense. This means that the prosecution isn’t required to produce unless the defense attorney makes a request for it; that information is as follows:

  1. Names and addresses of eye-witnesses;
  2. All written or recorded statements of eye witnesses that the prosecution intends to call at trial;
  3. All written and recorded statements of Co-Defendants whether or not these individuals have been charged;
  4. Any evidence specifically identified by the Defense in which the Defense can show that it should be disclosed in the “interest of justice”.

A court may also order that District Attorney (Prosecution) produce an expert report even if their expert hasn’t produced a report. This report would provide the facts to which the expert is expected to testify and a summary of the expert’s opinions as well as the grounds for each opinion. This additional information and potential evidence is known as discretionary discovery. If you have more questions about Pennsylvania DUI, read my book 5 Ways to Fight and Win Your Pennsylvania DUI Case.

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