This article is a part of our Family Law 101 series.

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Discovery Definition

Discovery is the formal process through which parties involved in legal disputes gather evidence from each other with the purpose of ensuring that both sides have access to relevant facts, documents, and witnesses they will present at trial.

What is Discovery in Law?

Discovery is a process used in both civil and criminal procedures. It is applied through rulings from the U.S. Supreme Court (Brady v. Maryland), the Rules of the Virginia Supreme Court, and statutes written into the Code of Virginia. Applicable family law sections of the Code include:

  • 20-88.61. Assistance with discovery
  • 20-177. Disclosure of information
  • 20-182. Privilege against disclosure of collaborative law communication; admissibility; discovery

Some family law — domestic violence and protective orders — does intersect with criminal law and in those cases, the following three sections of the Code are pertinent:

  • 19.2-265.4. Failure to provide discovery
  • 19.2-389. Dissemination of criminal history record information
  • 19.2-8. Limitation of prosecutions

Much as we all enjoy courtroom dramas on TV, real legal proceedings are designed to be fair and efficient. The process of discovery in the real legal world prevents dramatic “gotcha” moments by presenting evidence and witnesses without surprises.

Ahead of any courtroom appearance, each side in a lawsuit presents to the other side a complete list of evidence and witnesses to be called. Both sides list evidence, file depositions, and issue subpoenas to elicit testimony.

The goal of discovery is to keep nothing hidden so that fairness, justice, and truth are upheld. The plaintiff (the person filing the lawsuit) and the defendant (the person being sued civilly or charged criminally) can prepare their best arguments when they know what the other side’s evidence is.

What are the 4 Types of Discovery?

Discovery generally falls into four categories in civil cases:

  1. Depositions — out-of-court statements (presented orally, on videotape, or in writing) given under oath by people involved in the civil or criminal case
  2. Interrogatories — Interrogatories are written questions each side wants the other to answer in writing, also under oath; Virginia limits these to 30 questions from each side
  3. Physical evidence — Financial documents, household items, weapons, telephone and computer records, and any other actual objects central to the criminal or civil proceeding; this evidence can be gathered by either side or compelled through a subpoena
  4. Witnesses — People with knowledge of the issue can be called to testify; they may be subpoenaed or volunteer and can be experts in a field, character witnesses, or eyewitnesses

Types of Physical Evidence in Discovery

In most family law (civil) proceedings, discovery is a predictable and mundane exchange of information between your attorney and your spouse’s attorney. Neither party is making sensational accusations about the other, and in most cases discovery provides the foundational numbers for calculating child support, spousal support, and separation agreements.

The types of physical evidence presented in family law proceedings include:

Additionally, experts’ testimony may be part of a defense or suit. Private investigators, child development experts, counselors, and others may be called to give depositions or appear as witnesses.

Discovery and Your Attorney

Your attorney will handle the transfer of information but will depend on you for providing much of the paperwork. Your attorney will interview you to determine which witnesses should be called to support your legal arguments.

This exchange of information can go back and forth but must be completed 30 days before the trial. The only exception is depositions taken in place of a courtroom appearance by a witness. These may be done up to 15 days before trial.

Discovery also includes a requirement to update any information that has changed. For instance, your outstanding marital debt on your mortgage may decrease substantially from the time of initial discovery to the date of your actual divorce hearing.

Hiding Evidence in Discovery

You risk a great deal if you deliberately withhold anything during discovery. For example, if your spouse’s attorney asks for five years of retirement account statements, you cannot withhold three years of paperwork. Hiding anything during a discovery process is wrong on many levels:

  • You destroy the faith and bond you and your attorney shared
  • You cannot admit the hidden evidence later at trial
  • You risk a charge of perjury

Discovery in Fault Grounds

Though most separation and divorce suits move along with minimal fanfare, divorce based on fault grounds can lead to contentious discovery battles. A fault ground in Virginia is one of four reasons to claim the divorce is the spouse’s fault:

  1. The spouse committed adultery
  2. The spouse made the plaintiff fearful of bodily harm or was cruel
  3. The spouse deserted or abandoned the family
  4. The spouse received a felony conviction resulting in a year or more of imprisonment

In each of these cases, discovery could include unsettling inculpatory evidence (evidence that proves guilt):

  • Police reports for domestic abuse
  • Photographs from emergency room visits
  • Private investigators’ reports, videos, and photographs of hotel assignations
  • Credit card statements indicating spending on someone outside the marriage
  • Criminal records and prison files

The spouse accusing the other of a fault ground can expect a vigorous defense that begins by attacking each item presented in discovery. Motions can be filed with the Circuit Court judge to have some evidence withheld (“tossed out,” as the media often reports).

Brady v. Maryland

In family law, one area that crosses into criminal law is domestic violence. Central to any criminal proceeding is the 1963 U.S. Supreme Court ruling in a case, Brady v. Maryland, which prevents the government from hiding evidence.

Whether or not the evidence is exculpatory (proves innocence) or inculpatory does not matter. Hiding evidence violates the defendant’s constitutional right to due process. Obviously, prosecutors would hide exculpatory evidence in unethical attempts to find a defendant guilty.

Brady’s effects can be felt in Virginia’s statute § 19.2-265.4. Failure to provide discovery:

  • … the attorney for the Commonwealth shall have a duty to adequately and fully provide discovery as provided under Rule 3A:11 of the Rules of the Supreme Court.
  • If at any time during the course of the proceedings it is brought to the attention of the court that the attorney for the Commonwealth has failed to comply with this section, the court may order the Commonwealth to permit the discovery or inspection, grant a continuance, or prohibit the Commonwealth from introducing evidence not disclosed, or the court may enter such other order as it deems just under the circumstances.

Unfortunately, the media often misrepresent careful application of the rules of law as “getting off on a technicality.” The U.S. and Virginia Constitutions are not “technicalities,” and the rights enshrined in both are meant to protect everyone. Your family law attorney can effectively shield you from unconstitutional behavior by prosecutors by invoking Brady and § 19.2-265.4.

Most laypeople have only a Hollywood understanding of discovery, so trusting your family law attorney is critical during the discovery process. Listen to and heed the advice you pay for.

The Firm For Men knows the discovery process for all aspects of family law, including criminal proceedings. Contact us today or telephone us at (757) 383-9184 to set up your first consultation.