Federal Discovery

Cases are won and lost in the Discovery phase. In the past, this part of the pre-trial process was called Motion Practice and clients’ causes would live and die by the Motion Practice skills of the attorney. The lawyer’s adage is very true: A good lawyer has right answers; a great lawyer asks the right questions.

Discovery is generally considered the third of the critical stages in a criminal prosecution. The first being arrest, and the second being arraignment (which is when you are told exactly what statute is alleged to have been violated).

In Discovery, your lawyer seeks to force the government to turn over evidence that will exonerate you. Finding evidence to convict you is what the U.S. Attorney does very well.

Fifty years ago, the U.S. Supreme Court handed down the keystone case Brady v. Maryland. In Brady, the court declared the government’s failure to disclose favorable evidence violates the constitution when the information is “material.” One cannot know what is unknown, but knowing how to force an unwilling prosecutor to produce exonerative evidence is a trial skill of immense importance, but little understood by most trial lawyers.

This is especially true in Federal criminal courts where government lawyers hide behind an unwritten code of total war in seeking convictions. Notwithstanding good words emanating from the Justice Department, most trial lawyers in Federal criminal courts know that Brady rules exist more in the breach then in the observance.

A 2014 report from the National Association of Criminal Defense Lawyers found that of 620 decisions, prosecutors failed to disclose favorable information to the criminal defendants in 145 cases. Judges are no friend to criminal defense attorneys in Federal court, as the study found that in only 14 percent of the cases studied the Judges granted defendant motions.

Finding the throttle point is the key. Here is an example: The government can often not reveal the identity of witnesses who were interviewed and found not helpful to the government’s case. That does not mean the testimony is Brady material and so that would ordinarily be the end of a Federal criminal defense lawyers efforts. But ask the question another way and you can compel the Judge to rule in your favor. In most Federal districts, the investigative notes of investigators can be revealed if demanded. By demanding the interview lists (not notes), you can obtain witnesses who were not interviewed and whose names do not appear in the investigator’s notes. The resistance from the Federal prosecutor can be overcome by demanding investigation leads not followed, rather than interview notes.

Courts do, in my opinion, more often impede defense investigations rather than nurture them. Often you can force a Federal Judge to approach an ethical violation by filing discovery demands that put a Judge in tension between ethical standards and his expediency in moving his docket. Rule No. 1 is have no fear: Do not fear a Judge nor a prosecutor. You cannot claim your case is being impeded without actual proof that the prosecution has violated the rules of Brady. You can, however, demand production of required discovery. Force the production of exonerative evidence that is not listed by a willfully blind prosecutor, by understanding where the Brady rules begin and where they end.