Discovery Process

Discovery Process is Federal Criminal Cases

In federal criminal cases, “discovery” is the process by which the prosecutor and defense lawyer obtain information from each other, but with some limitations.

Typically, criminal discovery is limited to materials intended to be used directly at trial and evidence that materially exonerates the defendant.

The theory behind a limited right of discovery in criminal cases is that the government can't force the defendant to produce evidence against himself.  Thus, the defendant is limited in what they can discover from the government.

Discovery Process is Federal Criminal Cases
The discovery process is where the prosecutor and defense lawyers exchange case evidence.

In federal criminal cases, discovery typically begins after a defendant's arraignment, when the prosecutor and defense lawyer might sign a discovery agreement outlining the deadlines for the government to disclose each type of discoverable material.

The government will often seek deadlines that are close to trial. Thus, it's essential that your attorney attempt to negotiate for early disclosure so there is sufficient time to review the documents and other disclosures to prepare for trial.

Notably, however, how discovery is produced varies by jurisdiction and based on the type of federal case. Mostly, the government will send your defense lawyer the documents electronically or on a DVD. Sometimes, they will send the actual paper documents.

Suppose the federal criminal case involves sensitive information or vulnerable witnesses. In that case, the prosecutor might not produce the actual documents but instead require your lawyer to review them at their office.

Federal criminal discovery is controlled by different sources of law, including Brady v. Maryland, Rule 16 Discovery and Inspection, and the Jencks Act.

Brady v. Maryland

The Supreme Court ruled in Brady v. Maryland, 373 U.S. 83 (1963), that the government must produce exculpatory evidence for the defendant. 

The Fifth Amendment to the United States Constitution protects the rights of people to due process of law, including the legal right to know the evidence which will be used by the federal prosecutor at trial.

This infamous case codifies the prosecutor's obligation to provide exculpatory evidence to the defense before trial, but the following must apply;

  • The evidence must be “material,” meaning relevant and essential to the issues in the case;
  • It could benefit the defendant's case and tend to exonerate them.

Other cases have expanded the Brady standard to evidence that impeaches the credibility of witnesses.

Rule 16 Discovery and Inspection

Rule 16 of the Federal Rules of Criminal Procedure is another source that governs discovery in federal criminal cases.  Suppose a defendant demands the prosecutor to give them items they intend to use at trial. In that case, they must produce the discovery, which includes the following:  

  • Oral or written statements by the defendant;
  • Recorded testimony,
  • Prior criminal record,
  • Documents and objects;
  • Reports of examinations and tests;
  • Expert witnesses and more.

Notably, once a defendant invokes Rule 16 for discovery, the federal prosecutor can do the same for the defendant.

Jencks Act - 18 U.S.C 3500

The Jencks Act is defined under 18 U.S.C 3500 as yet another source of law related to discovery for federal criminal defendants. Suppose intends to call on a witness at trial. In that case, they must produce any recorded statements regarding their testimony. 

In other words, it's a demand that the government produce statements and reports on witnesses. Notably, the Jencks Act only applies to recorded statements.

Suppose a victim was previously interviewed but was not recorded or written down. In that case, the Jencks Act would not require the government to produce the interview.

Other Things to Know about Discovery

Below is some essential information you should know regarding discovery in federal criminal cases:

  • Discovery in criminal cases is typically an ongoing issue;
  • The first set of documents by the government is rarely the last;
  • Discovery is often produced in multiple productions lasting months;
  • The production of discovery will continue throughout the case.

Suppose the government produces important evidence right before or during a trial. In that case, it can create problems for the defense lawyer, who might not have sufficient time to review all this information.

Often, this is not the government's fault. Instead, they did not have the information until right before the trial.  However, sometimes, the government deliberately delayed producing discovery to gain an advantage. 

Therefore, your defense lawyer must stay vigilant for any abusive discovery practices by the government. They can raise any suspicious discovery practices with the presiding federal judge if they occur.

Federal Criminal Investigations

Often, criminal investigations by federal law enforcement agencies such as the Federal Bureau of Investigations (FBI) will last months or years and involve complex techniques, including the following:

  • Undercover operations;
  • Cooperating co-defendants;
  • Wiretaps;
  • Electronic surveillance.

Thus, the information obtained during the investigation often turns into a legal battle between the government and defense counsel. A Daubert motion is an attempt to exclude the presentation of an expert's testimony in a trial.

What is a Motion to Compel Discovery?

Suppose the two opposing parties can't agree on whether the prosecutor is legally obligated to turn over specific evidence in discovery. In that case, the defense will typically file a motion to compel discovery with the court.

Motion to Compel Discovery
Contact our federal defense lawyers for help.

Federal criminal discovery can become a complex issue. It's common for federal prosecutors not always to follow the rules and procedures.

Our federal criminal defense lawyers know how federal criminal discovery works and how to obtain critical information to help you achieve a favorable outcome.

The federal judge has the legal authority to enforce the government's discovery obligation, meaning they can order the prosecutor to disclose information the defense is entitled to.

Notably, the court and the two opposing parties in a federal criminal case share a mutual interest in resolving discovery issues before the case proceeds to a jury trial because it's in nobody's interest for the government to obtain a conviction based on a failure to turn over the required discovery. Nobody wants a conviction that will be overturned by an appeals court, which will require another jury trial.

If you or a loved one is under a federal criminal investigation or already indicted, contact our law firm for a free case evaluation. The Hedding Law Firm has offices in Los Angeles, California.

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