CRIMINAL DEFENSE
Discovery Delays: What "Ongoing Investigation" Really Means
Why Your Case Is Months Old But Evidence Is Still "Pending"
Published on by Attorney Jeff Lotter
You were arrested months ago. Your next court date is approaching. But when your attorney asks for the evidence against you, the response is always the same: "Discovery is pending—investigation ongoing."
If you're facing criminal charges in Florida, you have a constitutional right to see the evidence the State plans to use against you. This process is called discovery. But in practice, getting that evidence can take far longer than it should.
The phrase "ongoing investigation" has become a catch-all explanation for why discovery isn't ready. But what does it actually mean? And more importantly—what can you do about it?
What Is Discovery?
Under Florida Rule of Criminal Procedure 3.220, the State must provide the defense with evidence relevant to your case. This typically includes:
- Police reports — The narrative of what officers observed and did
- Witness statements — What witnesses told police
- Body camera footage — Video from officers on scene
- 911 calls — Audio recordings of the initial report
- Lab results — Drug analysis, blood alcohol content, DNA
- Photos and diagrams — Crime scene documentation
- Expert reports — Forensic analysis, accident reconstruction
Your Right to Discovery
The State cannot surprise you at trial with evidence you've never seen. Discovery exists to ensure a fair trial where both sides know what evidence exists.
Why Discovery Gets Delayed
When prosecutors cite "ongoing investigation" as the reason for incomplete discovery, it's rarely about active detective work. The reality is usually more mundane—and systemic.
1. Overwhelming Caseloads
State Attorney's Offices handle thousands of cases. In busy jurisdictions like Orange County, prosecutors may be juggling 100+ active cases simultaneously. Processing discovery for each case takes time that simply doesn't exist.
2. Junior Prosecutors Learning the System
Many misdemeanor and lower-level felony cases are handled by newer Assistant State Attorneys who are still learning the ropes. They're managing heavy caseloads while figuring out office procedures, court schedules, and how to track down evidence from various agencies.
3. Law Enforcement Backlogs
Prosecutors can only provide what they receive. Police departments have their own backlogs for processing body camera footage, writing supplemental reports, and responding to discovery requests. Crime labs can take months to return drug or DNA analysis.
4. Multi-Agency Coordination
Your case might involve evidence from multiple sources: city police, sheriff's office, FDLE, hospital records, or private businesses with surveillance footage. Coordinating between agencies adds layers of delay.
5. Technology and Storage Systems
Body camera footage, 911 recordings, and digital evidence require storage systems and processing. Older cases may have evidence in formats that need conversion. Some agencies still rely on outdated systems that slow everything down.
The Bottom Line
Discovery delays are usually a symptom of an overwhelmed system—not prosecutorial strategy. That doesn't make them acceptable, but understanding the cause helps your attorney address the problem effectively.
How Discovery Delays Affect Your Case
While the reasons for delay may be systemic, the consequences fall on you:
Your Life Stays on Hold
Pending charges affect employment, housing, and relationships. Every month of delay is another month living under the cloud of criminal prosecution.
Defense Strategy Is Hampered
Your attorney can't fully evaluate your case—or advise you on plea offers—without seeing all the evidence. Incomplete discovery means incomplete analysis.
Witnesses' Memories Fade
Time hurts everyone's memory. Witnesses who could help your defense become harder to locate and less reliable the longer the case drags on.
Evidence Can Disappear
Surveillance footage gets overwritten. Physical evidence gets lost. The longer a case takes, the greater the risk that potentially helpful evidence vanishes.
The Other Side: When Delays Work in Your Favor
Here's something most defendants don't realize: time usually favors the defense.
While discovery delays are frustrating, they're not always bad for your case. In fact, experienced defense attorneys often welcome some delay. Here's why:
Missing Documents Can Mean Excluded Evidence
This is huge. Certain evidence requires supporting documentation to be admissible. Radar guns need calibration records and officer training certificates. Breathalyzers need maintenance logs and calibration records. If the State can't produce these documents, the evidence itself may be excluded. A speeding ticket without radar calibration records? That reading might be inadmissible. A DUI without proper breath test documentation? Same problem.
Delayed Bad Evidence Is Still Delayed
Sometimes the discovery isn't favorable to the defense—breath test results, video footage, or damaging witness statements. If that evidence hasn't been turned over yet, the State can't use it effectively to pressure you into a quick plea. More time before confronting unfavorable evidence means more time to prepare your response to it.
More Time to Find Defense Angles
Every case has potential weaknesses—constitutional violations, witness credibility issues, procedural errors. Finding these takes time. When discovery is delayed, your attorney has more time to research the law, investigate the facts, and identify the strongest defense strategies.
More Time to Negotiate
Plea negotiations don't happen in a single conversation. They evolve over weeks or months as prosecutors reassess the strength of their case and defense attorneys present mitigating information. A slower timeline means more opportunities to negotiate a better outcome.
Witnesses Become Harder to Find
The State's witnesses—officers, civilians, experts—become harder to locate and schedule as time passes. Memories fade. People move. Officers transfer to different units. This can weaken the prosecution's case at trial.
Circumstances Change
Victims may become less interested in prosecution. New evidence may emerge. Laws may change. The longer a case takes, the more opportunities arise for circumstances to shift in your favor.
The Strategic Reality
Getting complete discovery quickly means the case moves toward trial faster. That's not always in your best interest. Sometimes the best defense strategy is to let the case age while your attorney works angles, builds relationships with the prosecutor, and waits for the right moment to resolve the case favorably.
This doesn't mean you should accept endless delays—especially if you're in custody or the charges are affecting your life. But it does mean that "slow" isn't always "bad." Trust your attorney to know when to push for discovery and when patience serves you better.
What Your Defense Attorney Can Do
When speed matters—or when delays become unreasonable—a good defense attorney has tools to move things along:
Demand for Discovery
Filing a formal written demand triggers the State's obligation to provide discovery within 15 days. This creates a paper trail and puts the State on notice.
Motion to Compel Discovery
If the State doesn't comply, your attorney can file a motion asking the court to order production of specific evidence. Judges generally don't appreciate prosecutors who can't get their evidence together.
Speedy Trial Demand
In Florida, you have the right to demand a speedy trial. Once filed, the State generally has 60 days (misdemeanors) or 175 days (felonies) to bring you to trial—or dismiss the case. This puts real pressure on getting discovery completed.
Direct Communication with the Prosecutor
Sometimes the most effective tool is a phone call or email. Experienced defense attorneys build relationships with prosecutors and can often resolve discovery issues through direct communication rather than formal motions.
Public Records Requests
Your attorney can request records directly from law enforcement agencies under Florida's public records laws. This can sometimes be faster than waiting for the State to provide them through normal channels.
Florida Rule 3.220(b)(1)
"Within 15 days after service of the [discovery demand], the prosecutor shall serve a written discovery exhibit..."
When Delay Becomes a Serious Problem
Most discovery delays are annoying but manageable. However, some situations require more aggressive action:
Red Flags That Require Attention
- Discovery is still incomplete after multiple court dates
- Key evidence (like body cam footage) is "unavailable" without explanation
- The State keeps asking for continuances while your life stays on hold
- You're in custody and delays are extending your time in jail
- Evidence that should exist (911 call, surveillance video) is never produced
In these situations, your attorney may need to escalate—through formal motions, speedy trial demands, or requests for sanctions. In extreme cases, discovery violations can result in evidence being excluded or charges being dismissed.
Frequently Asked Questions
How long should discovery take?
Simple cases (traffic offenses, minor misdemeanors) should have complete discovery within a few weeks. More complex cases involving lab work, multiple witnesses, or extensive video may take 2-3 months. Anything beyond that warrants questions.
Can I see the evidence myself?
Yes. Your attorney will share discovery with you. You have the right to review the evidence in your case and discuss it with your lawyer.
What if evidence goes missing?
If critical evidence is lost or destroyed, your attorney can file a motion arguing this violates your due process rights. Depending on the circumstances, this could result in evidence being excluded or charges being dismissed.
Does demanding speedy trial hurt my case?
It depends. A speedy trial demand forces action—but it also limits time to investigate and negotiate. This is a strategic decision that should be made carefully with your attorney based on the specifics of your case.
Should I just wait it out?
Passively waiting rarely helps. Even if aggressive action isn't warranted, your attorney should be actively tracking discovery status and following up regularly. Cases don't resolve themselves.
Dealing with Discovery Issues?
Prosecutors delaying evidence can violate your rights. Get an attorney who knows how to fight back.
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Frustrated by Discovery Delays?
You deserve to know what evidence exists in your case—and you deserve an attorney who will fight to get it. If your case is dragging on without answers, it may be time for a more aggressive approach.
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