My criminal case is listed in two days and the district attorney just gave my lawyer new discovery. Included in the discovery are 35 new pictures of the crime scene that the DA had the since the time of my arrest. Also, they gave my lawyer a video recording of me inside the police car on the day of my arrest where the police and I were talking about the case as I was being transported. They have had the video since the time of my arrest. The District Attorney never mentioned anywhere in the written discovery that I had ever given a statement. My lawyer is very upset about this. She told me the DA is a cheater. How can the DA cheat, aren’t they supposed to be the honest ones? Is there a remedy?
The DA has a continuing duty under the Pennsylvania Rules of Criminal Procedure to give all discovery to the defense attorney before the trial starts. The DA cannot claim that the cops had it and never gave it to them.
The problem with the rule is the remedy. The judge has three choices: 1. if the trial has already begun and DA comes up with new discovery, the judge can grant a mistrial; 2. grant a continuance to the defense attorney; 3. preclude the DA from using the evidence in the case.
In the leading case in Pennsylvania on this issue, the case was about rape. The defense attorney opened with the theory that no seminal fluid was recovered from a certain blanket. During the break the DA had the blanket re-tested. Seminal fluid was found this time. The DA introduced the evidence in his case in chief. The defense attorney objected and asked for a mistrial. The judge denied that request and gave a curative instruction. The Superior Court disagreed and remanded.
In your instant question, I can’t answer whether you want a continuance or if you want to have the new discovery precluded from the case. It is possible that the new evidence could help your case. You never know.
As far as the DA being a cheater, they are rare, but they exist and I have no comment.