Discovery in Criminal Cases

It is a regular sight in TV shows, movies or in novels, that a trial is decided by a revelation at the very last moment when either of the side presents a surprise witness or document. However, this does not happen in real court trials as such a situation is avoided by the concept of Discovery. Since, justice entails the concept of fairness it is a general process that information related to the case is shared between the parties to a case. In the initial days of trial in justice systems, prosecutors were not bound to share their evidence with the defendants but with the change in concept of fairness over time the modern systems have recognized the importance of ensuring that the defendants is given the opportunity to craft the strongest defence availablewith the help of their attorneys & due to this fact some information is shared between the parties to a case before the trial. This concept of discovery is present in most of the national justice system across the world with the aim of allowing the defendant to prepare the cases accordingly.


In legal terminology, Discovery is a pre-trial procedure which provides for the exchange of information related to a case between the parties involved in the proceedings. The process of discovery helps in narrowing the disputed issues &prevents any surprises at trial and very often helpsin resolving the issues by reaching an out of court settlement rather than going through a full trial.This sharing of relevant informationis also aimed at ensuring fairness of a trial &may be made through interrogatories wherein the parties send questions to one another  in an attempt to secure important facts, depositions wherein the witnesses are sworn in & subjected to questions in the presence of attorneys of both the sides& this written record may be introduced later if the case comes to trial, demand for production & inspection wherein the opposing party may be required to produce relevant documents or other evidence, requests for medical examination in cases wherein a party’s mental or physical condition is at the centre of the issue, etc.

However, there is no specific timing as to when an information is to be shared & there is no obligation to disclose all the information immediately& it is an ongoing process except in very simple cases wherein one time transfer of information is sufficient.The manner in which the information is shared & the chronology of information to be shared varies on a case to case basis.

In both civil & criminal cases this procedure is allowed although it varies according to the prevailing law in the respective countries like in US civil procedure extensive discovery is permitted but the same is restricted in other civil law systems & countries with common-law systems.

Role of discovery in a legal case

Discovery plays an important role in simplifying the subsequent trial in a case as it helps with the following:

  • Avoiding an Ambush at Trial

Discovery allows sharing of objective information related to a case such as police records, scientific evidence, and witness lists and statements which prevents a situation wherein the other party is bombarded with such information on the day of the trial which complicates the trial process.

  • Saves court time

The process of discovery saves the court’s time as otherwise such information will be transferred in the court only which consumes the valuable time of the court leading to delay in justice delivery. And many-a-times the defendant after knowing this information accepts his guilt rather than contesting the charge & going through the trail process which further speeds up the justice delivery process.

  • Prevents prosecution based on unfair investigation

In many cases, the case rests heavily on the testimony of the arresting officer& there are various instances wherein it is alleged that the police mishandled the situation & the investigation is unfair. Discovery by allowing the parties to access police personnel’s records (relevant information only based on review by the appropriate agency)helps them to substantiate their claim by doing follow up on cases wherein the police officer was involved in similar misconduct. This helps to prevent prosecution based on an unfair investigation.

Discovery in Criminal Cases

Discovery involves the investigating of evidence that the other party plans to present before the court & in the criminal cases, earlier it mostly consisted of the defendant getting evidence from the prosecutionwherein the defence lawyer requested to inspect the evidence that was to be used against the defendant which included the reports and records made by the police, as well as statements of witnesses. This is typically done after submission of a written request &allowed access to evidenced.However, in modern criminal justice systems this process has evolved allowingthe prosecution to get some information from the defence as well.

Criminal discovery involves discovery of evidence such aspolice reports, blood samples, photographs of the crime scene, handwriting samples, recorded witness statements, respective test results, and other related evidence involved in the case.

Discovery is important in criminal cases as it allows the defendant’s lawyer to seek an independent analysis of the evidence. Moreover, in many cases the defendant has limited resources whereas the government on the other hand has vast resources at its disposal, so this process acts as a level playing field. However, the process of discovery in criminal cases is quite limited in most criminal justice systems across the world due to the fact that just like an accused can’t be compelled to produce evidence against himself similarly it is implied that the discovery he can get from the government must be limited only.

Discovery in Indian Legal System

The Indian legal system has elaborate procedures to run a fair trial which is an essential part of the justice delivery system. It is believed that both the parties to a case must be given equal opportunity to be heard & access the documents related to the respective case & accordingly the Civil Procedure Code, 1908, has separate chapters which ensures the same& the Criminal Procedure code also has some provisions for the same. The parties to a case can ask for information related to a case if they are not satisfied with the disclosed facts.

The Civil Procedure Code, 1908 defines discovery as a pre-trial procedural aspect wherein each party is given an opportunity to obtain evidence from the opposite party & can be done in the following ways:

1) Interrogatories (Section 30 & Order XI Rule 1-11, 21 & 22 of CPC)

2) Depositions

3) Requests for admissions

4) Requests for production of documents and inspection

5) Subpoena duces tecum

6) Physical and mental examinations.

Discovery is a procedural aspect of law &the extent of discovery that can be made in a case depends on the consideration of the court varying on a case to case basis. Discovery helps in determining the nature of the case & allows the other party to prepare their case accordingly. In criminal cases, discovery is allowed to the extent of exchange of basic information of the case like police report, nature of crime ,etc. & other information is shared in the court only whereas concerning the facts of the case it is allowed to the extent that the statement of the accused leads to the discovery of the fact.

Judicial Perspective

In the case of Brady v. Maryland,[i] the U.S. Supreme Court state that the prosecutors need to disclose the materially exculpatory evidence to the defence & it also observed that prosecution must not withhold such evidence which later during the trial is used to surprise the defence by ambush.

Later in the cases ofKyles v. Whitley[ii]&United States. v. Bagley[iii], the U.S Supreme court observed that the prosecution has the constitutional duty to disclose all such favourable evidence to the defence without the request by the defence for such favourable information.

The U.S. Judiciary has held that discovery allows the defence to build a strong case & this right cannot be denied to the defendant.

The Indian Judiciary has also recognised the concept of discovery by highlighting its importance in various civil cases like in Gobinda Mohun v. Magneram Bangur & Co[iv], the Calcutta High Court highlighted the importance of the discovery of documents.

In the case of Govind Narayan and Ors. vs. Nagendra Nagda and Ors.[v], The Rajasthan High Court highlighted the importance of interrogatories in a trial while & observed that it can be allowed in the initial stages of a suit but not in later stages of a trial.


The concept of discovery is an important part of the procedural law. It has helped the courts by saving their time as it allows the parties to a case in preparing strong & solid cases based on relevant facts which results in speedier settlement of cases. Moreover, it ensures fair trial by providing equal opportunity to both the parties to a case. However, in criminal cases, the scope of this concept is very limited as unlimited discovery may lead to alteration of facts owing to various reasons especially corrupt officials & pressure by the criminals.

It can be concluded that the process of discovery simplifies the trial process, but the government agencies & the judiciary needs to keep a constant check on its implementation while ensuring that it does not lead to compromised justice. It needs to be ensured that this process is not misused by the vested interests to their benefits by sharing privileged information & collusion by the respective counsels & officials.

Frequently Asked Questions (FAQs)

  1. What is Discovery?
  2. Is Discovery a one-time process?
  3. Can a defendant ask for case related information from the prosecution?
  4. Is Discovery applicable in Indian legal system?
  5. What are the various ways in which discovery is made in India?


[i]373 U.S. 83 (1963)

[ii]514 U.S. 419, 434 (1955)

[iii]473 U.S. 667 (1985)

[iv]AIR 1940 Cal 331

[v]Civil Writ Petition No. 7803 / 2016

  • The Code of Civil Procedure, 1908
  • The Code of Criminal Procedure, 1973

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