Do I need to FOIA Police Reports?
If you are charged with a criminal offense the answer is usually no. This is because the police reports (and any other written or recorded evidence) will be turned over to your attorney (or you if you represent yourself) as part of the “discovery” process in court. The Illinois Freedom of Information Act (FOIA) has provided the public the right to request access to records from governmental agencies including police departments. However, there are law enforcement exceptions that often result in redacted information. These redactions are not made in most circumstances in criminal cases when reports are tendered as part of discovery. Illinois is not a state where a criminal defendant is “surprised” by hidden evidence at trial- a real trial is not like a Hollywood trial. While you never know for sure how a witness will actually testify at a trial, all written and recorded statement whether good or bad for the prosecution are supposed to be disclosed prior to the trial. If they are not, that is a discovery violation and may lead to a mistrial or sanction against the side that knew about the evidence and did not disclose it.
If an attorney believes that there is additional relevant evidence not disclosed there are procedures set up to deal with those situations. The defendant can issue a subpoena- formally called a "subpoena duces tecum". In plain language this means that the party issued a subpoena to a person or entity to bring documents to court. Often, the need for a subpoena is not necessary because the prosecution has an obligation to comply with the discovery rules so will get the information and disclose it to the defense. During the discovery process it is typical that a defense attorney will let the prosecution know when they are missing something, and the prosecution will obtain it and tender it. If evidence was destroyed or hidden, your attorney can file a motion for sanctions. The resulting sanction can be anything from a dismissal of charges, the suppression of the evidence or something called a “negative inference”. A negative inference means the court finds a presumption that the evidence the state failed to produce would be unfavorable to their case.