Drunk Driving: Bench Trial or Jury Trial?

In civil cases, "discovery" refers to a broad number of devices designed to compel production of statements, documents, and evidence. These devices include subpoenas, interrogatories, requests for production of documents, and depositions. Oddly, where one's liberty is at stake rather than merely money, discovery is not permitted on the same scale in criminal cases as in civil cases.

In criminal cases, a defendant is entitled at a minimum to disclosure of exculpatory evidence. The prosecutor cannot hide favorable evidence from the defense. This is because a prosecutor's job is to see that justice is served, and justice is not served through convictions of innocent people.

Standard discovery in a criminal case typically includes a generic laundry list as follows:

1. All statements known to the police and prosecutor of all endorsed witnesses.
2. All statements of the Defendant which statements are recorded or have been reduced to writing.
3. The Investigator's Report and all preliminary complaint reports (PCR's) concerning the above captioned case.
4. The arrest and conviction record of the Defendant.
5. All scientific and laboratory reports.
6. All corporeal and photographic lineup sheets.
7. All photographs, diagrams and/or other visual evidence which pertains to this case and which are in the custody of the police.
8. All physical and/or tangible evidence in the custody of the police department which pertains to the instant case.

Additionally, in OWI proceedings, the chemical testing results must be disclosed to the defense and filed with the court at least 2 days prior to trial.

Nonetheless, most prosecuting attorneys take the position that it is not their job to disclose any more evidence than a copy of the police report, driving record and Datamaster test result. This is simply not true, and several cases have held that the prosecutor must make the ordered disclosures, but a defense attorney must actively pursue these arguments with the court in order to enforce discovery orders. In truth, the real issue is that the prosecuting attorney is unable or unwilling to dedicate significant time to a single misdemeanor case.

Finally, if an attorney actively pursues enforcement of discovery, additional materials that may contain exculpatory evidence may be obtained from most police agencies. This includes videotapes, audio recordings, 911 logs, radio dispatch transmission, and a variety of records and materials that may provide compelling defenses in a drunk driving case.