Prepare A Discovery Review Report
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
Now, at this particular juncture, let’s go back through a few things. You’ve had an arrest of some kind, you’ve had a first appearance or not depending upon whether the officer took you in the custody and whether or not a bond was made before first appearance. You’ve had arraignment court, whether it’s called Arraignment, Plea Day or god knows what some judge will figure out to call it tomorrow. And at this point, you have completed your fact pattern report over four days. And by the way, a little side on that, please, don’t try that on your smartphone unless you want to bang your head with a hammer. It’s so much easier on a computer. So, what happens next?
Well, at some point, your attorney and your legal team is going to have your fact pattern report on the one hand, and they are going to have what’s called a Discovery Exhibit on the other. And we need to tear apart the case, break it down, and then put it back together in a way that’s most favorable for you or someone you love. And part of that process is having you review the discovery exhibit. Now, I totally understand that I have a lot of colleagues who do not like to send a copy of the discovery exhibit to their clients. They like to call them into the office, have an office chat. If the clients have stress, they call them in for an office chat. And while that is really good for marketing and sales, it’s not very good for you. So, what do we do instead?
Well, I want you to read your discovery exhibit. It’s going to have a list of witnesses, it may not have all of the witnesses. If there is a witness you forgot when you did your fact pattern report but somehow the discovery exhibit reminds you of a witness, get us that information. And the second report you are going to do is called technically a Discovery Review Report. And what you basically do is there is no timeframe on it, like there is with a fact-pattern report that’s got a very strict four-day time window. Instead, you review the discovery exhibit and you just simply take notes. And you are basically looking for three different things between the probable cause statement, the offense report, the incident report, the supplemental report, the other officer’s supplemental report, the backup officer’s incident report etc., etc., etc. You go through all of this documentation and you are looking for things that are true. The officer wrote it down exactly as it happened. More importantly, you are looking for things that are not true, things that are left out.
And then finally, and this is the biggest area, you are looking for things that are partially true. You are looking for things that are partially true. I’ll give you an example. I had a case out of a small town in Northwest Florida called Crestview. And two people were pulled over and their vehicle was searched for drugs. The stopping officer stated that she smelled the smell of marijuana, which after the constitutional amendment, I’m wondering if that justifies a search and seizure, does it? I don’t know. I tend to argue no. But either way, she got the people out of the vehicle, other officers arrived and then the head officer, someone senior to this rookie officer who’d made the initial stop took over the investigation and this particular agency uses body cameras. And we didn’t find it in a fact pattern report, we found it on a body-cam but we still want you to do yours and do it correctly and do the discovery review report because what we’ve found was that, 1) the rookie had turned her camera off and on at the direction of the legal officer in violation of sheriff’s office policy. Well, that’s kind of not good to put mildly and very helpful to the defense.
What was even more helpful is they went to the trunk and they found contraband in the form of drugs in a bag, but they had two different people in the vehicle, they didn’t know who it belonged to, or if it belonged to a third person who wasn’t present. So, six times as they are going through the trunk, the lead officer, the most experienced one there, tells the rookie, “Go over there, read them their rights, ask whose bag this is. Now, make sure you ask them whose bag this is but read them their rights first”. So, this particular officer is wearing a body-cam on the shoulder and you can tell because it’s kind of moving like this when you are looking at the video later, and sure enough, you see two people in the parking lot and you hear this voice, “Whose bag is this”, what? And then, you hear it again even louder, “Whose bag is this?” And one of the people in the parking lot said, “It’s mine”. Well, they both ended up getting arrested for different charges. But what was critical was both had their cases dismissed because the evidence, while it was present, was not admissible.
And this is key, this is why you do a fact pattern report, this is why you do a discovery review report, this is why we get discovery, is because you may think to yourself, “I don’t have any defense in the world”, really? Well, as a specialist in criminal law, I am trained to find those kinds of defenses that a layperson would never even know about. And by having you do a fact pattern report, a discovery review report and looking at all the evidence from the notice of discovery, we’re able to determine what types of defenses you have to some or all of the charges and the best way to proceed with your case or that of someone you love.
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