Discovery in a Federal criminal case involves the defense attorneys getting their heads and hands wrapped around the evidence the government has to present in a case against a criminal defendant and normally begins after a defendant has been arraigned. At the arraignment, the defendant’s criminal defense lawyer and the federal prosecutor might sign a discovery agreement.

This agreement lays out the deadlines for the prosecutor to disclose the types of material that is discoverable and the deadlines are usually close to trial date. Sometimes witnesses, in particular, are only disclosed right before the trial is set to begin, putting the Defendant at a huge disadvantage (especially since such disclosures are required significantly earlier in State criminal cases). Seasoned federal defense lawyers will normally negotiate for early disclosure in order to give them sufficient time to review the documents and other disclosures to prepare for trial, but that are not always successful.

How criminal discovery in federal cases is produced will typically vary by the jurisdiction as well as the type of case.  In most cases, the prosecutor will just send the federal criminal lawyer the hard paper documents, or through electronic communication. There are situations where there is sensitive information or vulnerable witnesses. In such as case, the prosecutor might not produce actual documentation, rather they will require the criminal lawyer to review this information at the prosecutor’s office. Discovery in federal criminal cases is usually more than one exchange at the arraignment. In most cases, the production of discovery will continue throughout the case, and even into the trial.

It’s crucial for the defense lawyer to closely monitor any potential abusive discovery practices by the prosecutor and to voice any suspicious practice with the federal judge. After all, prosecutors and federal agents are sometimes quite reluctant to hand over evidence that might undermine their case. The rules and procedures that are supposed to be religiously adhered to are set forth as follows

Brady v. Maryland

The federal criminal defendant’s right to inspect the government’s evidence against them is deeply rooted in the traditions and laws of the United States. The Fifth Amendment to the United States constitution protects the right of the accused to due process of law. This includes being entitled to understand the evidence which will be presented by the government should the case proceed to trial. In this way, “trial by ambush,” is avoided whereby the defendant hears about the evidence of their guilt for the first time when sitting before the jury at a trial.

The landmark case of Brady v. Maryland codifies the government’s obligation to provide material, exculpatory evidence to the defense before trial. The two prongs of the Brady standard are often litigated between the parties in a federal criminal case. To qualify as a required disclosure, the evidence at issue must be material. This means that it is relevant and important to the issues in the case. The government may come into possession of a significant amount of evidence during a law enforcement investigation which is relevant only to tangential issues which have little or nothing to do with the charges against the defendant. This material is not required to be turned over. The evidence covered by Brady must also be exculpatory. This means that it will benefit the defendant’s case and tend to exculpate them, which is the opposite of inculpating, or incriminating, him or her.

Credibility of Witnesses

Subsequent cases have extended the Brady standard to evidence which impeaches, meaning undermines the credibility of, a witness. Imagine the following scenario. The government has a witness who claims to have personally observed the defendant buying drugs in a large quantity. The government intends to call this witness at trial as his testimony will be very probative of the issue of the defendant’s guilt.

However, during the course of its investigation, the government learns that the eye witness was previously convicted of perjury and lying to law enforcement in a sworn report. The fact that the witness suffered this previous conviction is arguably immaterial to the defendant’s case – whether or not the witness was convicted says nothing about whether the defendant purchased drugs.

However, the prior perjury conviction raises serious issues about the witness’ credibility.  If the jury is not informed that it has good reason to mistrust or at least question the veracity of the witness when he testifies, the jury may convict the defendant based on a false appraisal of the witness’ credibility. Therefore, the government is obligated to turn over its information to the defendant about the witness’ prior conviction.

Rule 16 Discovery and Inspection

Rule 16 of the Federal Rules of Criminal Procedure is a primary source that governs discovery in federal criminal cases.  Under this Rule, after a defendant makes a demand on the prosecutor, they are required to produce the discovery. These items include documents or other items they intend to use at trial, oral statements by defendant before or after arrest, written statements by defendant, recorded testimony, defendant’s prior record, reports of examinations and tests, expert witnesses, and more. It should be noted that once a defendant invokes Rule 16 for discovery, the prosecutor can demand the same from the defendant.

Jencks Act – 18 U.S.C § 3500

The Jencks Act under 18 U.S.C § 3500 is also a source of discovery for federal criminal defendants. Under this Act, the prosecutor who is calling a witness is required to produce any recorded statements in reference to their testimony. 18 U.S.C § 3500 is a demand for production of statements and reports on witnesses. For instance, let’s say the prosecutor calls an alleged victim to testify about a fraud crime and they have a recording or a report of a prior interview with the victim about the fraud. Then, the prosecutor is required to produce this information to the defendant. It should be noted that the Jencks Act only applies to recorded statements. This means if the victim was previously interviewed, but it was not recorded or any notes written down, then the prosecutor is not required to turn over information about the interview.

Motion to Compel Discovery

Federal criminal case discovery is often produced in multiple productions. This process can last months or even years. Unlike state cases which frequently feature a few witnesses, typically law enforcement officers, federal investigations often span years and involve sophisticated techniques such as wiretaps, electronic surveillance, undercover operations, and the involvement of cooperating witnesses. Whether and when any of this information is turned over to the defense is often a point of legal contention between the parties.

When the parties cannot agree on whether the government is obliged to turn over a certain piece of evidence in discovery, the appropriate procedure is for the defense to file a motion to compel discovery with the court. Ultimately, the court has authority to enforce the government’s discovery obligations on it by ordering the government prosecutors to disclose information to which the defense is entitled, because it is in no one’s interest for the government to secure a conviction based on a failure to turn over required discovery, which may very well result in the conviction being overturned and necessitating a second trial, the court and the parties share an interest in fully litigating any discovery issues before the case proceeds to a jury trial.

Then again, Federal criminal discovery is often very complicated. What needs to be turned over and what doesn’t? That initial discretion is exercised by the prosecutors themselves and it’s sadly not uncommon for them to play fast and loose with the rules. After all, who’s going to find out. And, even when that evidence is later discovered, it’s usually years later, once a conviction is at hand, when they’re almost impossible to overturn. It’s a rough and tumble process with the Defendant at its mercy and, all too often, only serves to further compel the accused to plead guilty rather than take their chances with a sentence that might be double or triple should they lose.