pretrial discovery (criminal) – conducted before trial to reveal facts, develop evidence and prevent parties from surprising each other at trial

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pretrial discovery:

1. Discovery conducted before trial to reveal facts and develop evidence.  *  Modern procedural rules have broadened the scope of pretrial discovery to prevent the parties from surprising each other with evidence at trial. [1]

2. See discovery. [2] [3]

n. (16c)

1. Compulsory disclosure, at a party’s request, of information that relates to the litigation Fed. R. Crim. P. 16.   The primary discovery devices are interrogatories, depositions, requests for admissions, and requests for production.  Although, discovery typically comes from parties, courts also allow limited discovery from nonparties.

2. The facts or documents disclosed <the new associate spent all her time reviewing discovery>.

3. The pretrial phase of a lawsuit during which depositions, interrogatories, and other forms of discovery are conducted.  discover,vb. — discoverableadj. [1]

1. A remedy for the sole purpose of compelling the adverse party to answer its allegations and interrogatories, and thereby to disclose facts within his own knowledge, information, or belief, or to disclose and produce documents, books and other things within his possession, custody, or control, being usually employed to enable a party to prosecute or defend an action. 23 Am J2d Depos § 141. [2]

1. A means for providing a party, in advance of trial, with access to facts that are within the knowledge of the other side, to enable the party to better try her case.  A motion to compel discovery is the procedural means for compelling the adverse party to reveal such facts or to produce documents, books, and other things within his possession or control. [3]

     Excerpt from Geoffrey C. Hazard Jr. & Michele Taruffo’s American Civil Procedure: An Introduction (1993):

    “Discovery has broad scope. According to Federal Rule 26, which is the model in modern procedural codes, inquiry may be made into ‘any matter, not privileged, that is relevant to the subject matter of the action.’  Thus, discovery may be had of facts incidentally relevant to the issues in the pleadings even if the facts do not directly prove or disprove the facts in question. [4]

Related Terms:

Jencks rule – the rule that a defendant in a federal criminal prosecution has the right to examine government papers to be better able to cross-examine or impeach government witnesses.

reverse Jencks material – a defense witness’s written or recorded pretrial statement that a prosecutor is entitled to have, via pretrial discovery, in preparing to cross-examine the witness; discoverable statements include a witness’s signed or adopted written statement, and transcripts or recordings of the witness s oral statements, including grand-jury testimony.  U.S. v. Nobles, 422 U. S. 225, 231-34, 95 S. Ct. 2160, 2166-68 (1975); Fed. R. Crim. P. 26. 2. — aka reverse Jencks; reverse discovery; reciprocal discovery.

discovery abuse – misuse of the pretrial discovery process, especially by

(1) requesting unnecessary information;
(2) requesting information for an improper purpose; or
(3) failing to respond adequately to a proper discovery request.
 — aka abuse of discovery.


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[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: Geoffrey C. Hazard Jr. & Michele Taruffo’s American Civil Procedure: An Introduction (1993)


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