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The Process Of Federal Discovery In A Criminal CaseHow Does Federal Discovery Work?

Federal Discovery is very rigid, and it is not open Discovery. Federal Discovery is anything but open, and for that reason it is very controversial.  It is far easier to get Discovery in a civil case where your checkbook is on the line than in a criminal case where your liberty is at stake. It seems wrong and backward to most people, but it is the truth.

There are three primary forms of Federal Discovery. There is “Brady material,” “Rule 16 Discovery,” and “Jencks Act Discovery.”

Brady material is evidence that tends to prove the defendant’s innocence, sometimes called “exculpatory evidence.” From the very inception of the case, the government has the continuing obligation under Brady to disclose Brady material immediately to the defense upon them getting possession of it, regardless of what stage your case is in (even prior to indictment).

Your case could be at the criminal complaint stage, pre-indictment, post-indictment, pretrial, during trial, or even after trial. But, if the government becomes in possession of Brady material that suggests the defendant’s innocence, the government must disclose it immediately.

Rule 16 Discovery is a discovery based on the Federal Rules of Criminal Procedure 16, which is the rule that covers most of pretrial Discovery practice. Federal Rule of Criminal Procedure 16 allows a defendant to get certain items of Discovery once he is indicted. In general, Federal Criminal Rule 16 Discovery is provided or turned over following your indictment and your arraignment on that indictment.

What Does Rule 16 Discovery Cover?

The government is required to provide the following things under Rule 16 once you are arraigned in your indictment:

  • Any oral statement made by the defendant
  • Any written or recorded statement by the defendant
  • The defendant’s prior record

In addition, the government must allow the defendant to inspect or copy documents and objects such as:

  • Books, papers, data, and photographs
  • Tangible objects (in other words evidence, such as cocaine or guns)
  • Copies of reports of any examinations or tests of any physical or mental examination, and any scientific tests or experiments.
  • Identification of any potential expert witnesses and, under Federal Rules of Evidence 702, 703, or 705, a written summary or a report of any expert witnesses they intend to call in their case in chief.

Importantly, reports, memoranda, or other internal government documents made by an attorney for the government or a government agent in preparation for trial or the investigation in prosecuting the case are also excluded under Rule 16. This means what is referred to as “work product” is not covered by Rule 16 and does not have to be turned over.

Jencks Act material is purposefully excluded from Rule 16 Discovery. The Jencks Act – 18 USC 3500 – is a statute that states that witness statements and testimony of government witnesses do not need to be provided in pretrial discovery – they are excluded from discovery production until trial.

The Jenks Act reads:

“No statement or report in possession of the United States, which was made by a government witness, or a prospective government witness shall be the subject of subpoena, discovery or inspection until that witness has testified on direct examination in the trial.”

Now, when one thinks about that description, it’s easy to see the danger and the potential for abuse of the Jencks Act. The Jencks Act goes on to state:

“Witness statements, transcripts of their testimonies in front of things like the grand jury and interviews by government agents do not need to be turned over until not just the trial begins but after that witness has testified at trial.”

Information covered by the Jencks Act and excluded from Rule 16 discovery include witness statements, grand jury testimony, or any government reports relating to the interview of their witnesses. The Jencks Act could be the most controversial part of Federal Discovery. The Jencks Act 18 USC 3500 is a statute that protects the government from ever having to produce witness statements before trial.

Unlike Discovery Rules in many states, which require the prosecution to turn over witness statements in pretrial discovery, the Federal government does not have to turn them over under the Jencks Act. But rather than allow the government to hang on to those witness statements until after the witness has testified at trial, most judges encourage the prosecution to turn that information over at some time before trial.

This is done  in order to avoid trial delays.  Otherwise, the government would call a witness who would testify at trial. Then, under the Jencks Act, the government would be required to turn over that witness’s statement to the defense. As a result, the defense would typically ask the Court for a recess to review those statements and prepare for their cross-examination. And if it’s a short witness with little material, that delay may be only an hour. But if it’s a long witness with many prior statements and grand jury testimony, that delay can be a day or more.  In order to avoid those delays during the trial, most judges will pressure, encourage, and coerce the US attorney’s office to provide Jencks material before trial. But by “Prior to trial,” that means days and (maybe, sometimes) a few weeks before trial – but it is never more than that.

The Jencks Act can make it extremely complicated to have a complete evaluation of how strong the government’s case is against you or your client. The defense is not getting the government’s witness statements, nor the grand jury testimony. In fact, the government can even withhold the identity of its witnesses. The government is not required to disclose to the defense who their witnesses will be at trial, nor the order in which they will be called. Importantly, the government will never give witness information in the case of witnesses that were co-defendants, co-conspirators, or other participants of the crime. The government claims that by doing so they are trying to protect that witness’s identity and safety.

For these reasons, pretrial preparation in a federal case becomes extremely important. The defense must undergo an intense trial preparation procedure with any client charged in a federal criminal case. This requires a thorough, extensive debrief of the client – which would include everything the client knows and any witnesses you have in your control, such as friends and family of your client.

With the guidance of a skilled attorney for Criminal Law Cases, you can have the peace of mind that comes with knowing that any and all preparation that needs to be done, will be done. For more information on The Process Of Federal Discovery In A Criminal Case, a free initial consultation is your next step. Get the information and legal answers you seek by calling today at (248) 509-0056.

Mark Satawa

Call Today For Your Free Case Strategy Session
(248) 509-0056