If a prosecutor brings a case against a defendant, much of the argument in court will usually rest on several forms of evidence. What do you do if the evidence seems suspect, though? A criminal justice attorney will usually try to ask the court to exclude the prosecution's evidence. Let's look at how evidence exclusion typically works.

Discovery 

Whenever the state wants to present something as evidence, it has to put the materials through the discovery process. The goal of discovery is to ensure that no one can ambush the other side with surprise evidence, despite what you may have seen in some legal movies or TV shows.

If a judge holds a case over for trial, the court will order discovery early on. The judge will instruct both sides to disclose any evidence or witnesses they might want to present at trial. Even if a lawyer isn't sure if they want to present something as evidence, they have to disclose it in discovery if they expect that they might use it later.

Investigating the Evidence

The prosecution will send a list of the evidence to your criminal defense attorney, and this will include information about how to get physical access to it. If the police have stored a weapon in a baggy inside an evidence locker, for example, the discovery notes will tell your lawyer where it is and how to gain access to it without breaking the chain of custody. The discovery notes should also include who entered each item into evidence and when.

Likewise, the discovery process will include the result of any tests the prosecution might have requested. This information will include which labs tested it, how they did the testing, and what machines were involved.

A criminal defense assistance firm will investigate the discovery items. For example, they might look at a drug testing process to determine if a lab did everything the right way. Also, a criminal defense attorney will look at the chain of custody to make sure someone couldn't tamper with the evidence.

Motion to Exclude

Once both sides have concluded discovery, the judge will schedule pretrial hearings. Each side has to enter the evidence they might want to use at trial, and the other side has the right to object. A lawyer may motion for the court to exclude the evidence, and then the judge will decide whether or not to allow it. This process will repeat until both sides have entered all their evidence.

Contact a local criminal defense attorney to learn more. 

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