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Charged with A Felony What Happens Now? – Part Four

May 21, 2020

This is Part Four of an ongoing series of Blog Posts, Charged with a Felony What Happens Now? You can find Part One here, Part Two here, and Part Three here. Each part will tackle a different aspect of a felony criminal case from the arrest and complaint to sentencing. Each post is designed to give an explanation of that post's topic, to be used in conjunction with the entire series.

Previously, I went over some of the background information involved with the filing of felony charges, the different manners in which a criminal case begins, whether by a felony Complaint or an Indictment from the Grand Jury. In addition, I discussed the Arrest, Bond and Arraignment portions of felony cases, as well as the Preliminary Hearing and what it is, what it involves and what it means for your felony case.

In this post I will be discussing the Discovery phase of your felony case. I will explain what it is, what it involves and what is the purpose. A defendant's right to discovery is a fundamental aspect of our criminal justice system.


In both criminal and civil cases, discovery is the process where the parties involved exchange information. This information represents the evidence the parties intend to introduce at a trial. In a felony case, the discovery phase begins after the filing of a Felony Complaint or an Indictment.

Discovery obligations of the Parties are mutual and continuing.

There are rules in place governing how the parties are to exchange their documents and schedule interviews with witnesses. These discovery rules are enforced by the Court. In felony cases, the Court usually grants the parties some discretion with respect to what is and is not subject to discovery.

If the State refuses to make any of its witnesses available to the Defendant prior to trial, then the Court may end up hearing a Motion to Compel. A Motion to Compel is simply a formal request, in this case by the Defendant, asking the Court to force the State to make some form of evidence available.

If your felony charge is brought by the State in St. Louis County Circuit Court, then you will likely not have any issues with discovery. The prosecution in St. Louis County is generally very good with disclosing discovery on a timely basis without the need for the Defendant to go to the Court for an order to compel.

What Is Discovery?

Discovery is the process in which the state and defense can obtain information from each other about witnesses and evidence before trial. The discovery rules provide the defendant with sufficient information to make an informed plea and to prepare for trial. The discovery rules also conserve resources and expedite case processing.

Parties use this process to seek any information which is reasonably calculated to lead to the discovery of relevant evidence.

Additionally, in criminal cases any evidence which the State has that may exculpate the Defendant must be handed over in discovery. Exculpatory evidence is evidence which is likely to prove the innocence of the Defendant. Failure to provide the Defendant with such evidence could result not only in the exclusion of the non-disclosed evidence, a granting of a new trial, etc. but with the prosecutor being sanctioned as well.

"According to Brady, due process requires the prosecution to disclose evidence in its possession that is favorable to the accused and material to guilt or punishment." State v. Goodwin, 43 SW 3d 805 (Mo. Banc. 2001).

What Is Involved with Discovery?

Whether your felony begins with the filing of a Felony Complaint or Indictment, and after you have made a written request, Missouri Rule of Criminal Procedure 25.03 states that the prosecutor must disclose: any arrest reports, incident reports, investigative reports, written or recorded statements, documents, photographs, video, electronic communications and electronic data that relate to the offense for which defendant is charged.

Essentially, discovery includes anything that has been prepared or gathered from other sources by the investigating police regarding the defendant's case. It is the information or evidence the prosecutor intends to use against a defendant during trial. Likewise, the prosecutor has a right to any information or evidence regarding the defendant's case which the defendant intends to use during trial. Upon written request from the prosecutor the defendant must disclose this evidence, unless a constitutional limitation applies.

Depositions are a discovery tool used by the parties to interview witnesses on the record before going to trial.

Aside from discovery in the form of written reports and recordings, the parties are also permitted to take depositions of any witnesses named by either side in the initial or supplemental discovery disclosures. Depositions are a discovery tool used by the parties to interview witnesses on the record before going to trial. During a deposition, and after being placed under oath, the witness is seated in a room next to a Court Reporter and answers questions from Defense Counsel and the Prosecutor. The Court Reporter then prepares a transcript, or a word-for-word book, of the witness' testimony.

What Is the Purpose?

The purpose of discovery is to ensure as best as possible that neither party gets blindsided at trial. In State v. Kilgore, the Court explained that "the basic object of the discovery process is to permit the defendant a decent opportunity to prepare in advance of trial and avoid surprise." 771 SW2d 57, at 66 (Mo. Banc. 1989)

Knowing what the witnesses will say, and what other evidence the parties might use, is not only a matter of Due Process but it also permits the parties to develop a trial strategy which ensures a fair trial. Allowing the State to surprise a criminally accused at trial with evidence is antithetical to the principles of the US Constitution and its Bill of Rights.

As a defendant charged with a felony, it is important that you seek out this evidence in advance of trial in order to avail yourself of your constitutional rights. An experienced St. Louis criminal defense attorney will assist you in this process to make sure you do not go into trial blindfolded. Contact Anthony Bretz today and start defending your rights now!