Author: Attorney David E. Saperstein
Phone: 608-257-0945

This practical series, “Nuts and Bolts,” is intended to demystify the process of being charged with a crime in Wisconsin state (circuit) courts. The court process can be overwhelming. Knowing what to expect from the process may make it less confusing and unpredictable, and hopefully less stressful.

Building Our Defense:  Discovery and Investigation

For a defense attorney, this is when the case becomes interesting.  Before our not guilty plea is entered we typically have received only bare-bones, scant detail about the accusations against our client. Remember, the State is required to provide only enough detail in the criminal complaint to get past the very low “probable cause” burden of proof. However, to convict our client at trial the State has to prove the charges by proof that is “beyond a reasonable doubt.” This is the highest burden of proof in American law.  The prosecutor will pick and choose the evidence that the State has gathered to try and prove the allegations that were only minimally described in the criminal complaint. And it is after we enter our not guilty plea that we are entitled to all of the State’s evidence. This point in the criminal defense process is called the “discovery” phase.

The State has at its disposal countless law enforcement officers and personnel to investigate and build the State’s case.  To level the playing field, in many cases we will hire a private investigator to gather facts and information that will be useful for our version of the case. Usually the private investigator is a former law enforcement officer who has knowledge, skills and connections equivalent to those officers working for the State.  She will follow leads, interview witnesses, take photos or video of relevant locations and evidence, and report back to the lead attorney with this information. In some cases the defense investigator may become a witness at trial — to authenticate evidence that she discovered or recount statements that were made to her.  We may also hire various experts in specialized fields — medicine, psychology, accident reconstruction, engineering, ballistics, and other disciplines – to analyze the State’s or our evidence, and to assist in developing and supporting our theory of the case with their expertise.

The State is legally obligated to turn over to the Defense any evidence in their possession that is favorable to the accused (“exculpatory evidence”). The State must also turn over any evidence that supports their theory of why our client is guilty and what the punishment should be.  They must also provide certain background information, such as criminal history, about the witnesses that the State expects to produce at trial, including a list of those witnesses’ names and contact information.  The Defense also has an obligation to provide names and contact information for any witnesses we intend to call at trial.  If a Defense investigator has recorded statements of any of our trial witnesses – either written or audio – those too must be turned over to the State prior to trial. The potential penalty for either side’s failure to turn over names or statements of witnesses is the exclusion of that witness at trial.  And if the State attempts to introduce evidence at trial that has not been provided to the defense in advance we must voice our objection and either demand exclusion of that evidence (if the jury hasn’t already heard too much) or move for a mistrial.

Our client is at the center of this entire process, as you would expect. It is his future and freedom on the line.  It is his story of innocence that we as defense attorneys want to tell. We drill down on the information we gather from the State’s evidence and from our client’s version of events, and develop the most effective way to tell our client’s story using all of that information.

Throughout the discovery process it is essential that our client meets with us to review, discuss and develop the information we have gathered. At Hurley Burish, S.C. we approach every case as a team – with attorneys, paralegals, investigators and our client working together to achieve the best outcome.

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