What is criminal “discovery”?

“Discovery” is a term used in the legal profession to refer to the process by which parties in litigation obtain information from each other.  In civil cases, discovery is an extensive and robust process.  Parties have the right to interrogatories, requests for admissions, and depositions.  In criminal cases, by contrast, discovery is much more limited.  Typically, criminal discovery is limited to materials that are intended to be used directly at trial, as well as evidence that materially exonerates the defendant. The rationale for a more limited right of discovery in criminal cases is that the government cannot force the defendant to produce evidence against himself, therefore, the defendant should be limited in what he can discover from the government.

Although this more limited right of discovery in criminal cases may sound “fair” in light of the defendant’s right against self-incrimination, in practice the limited discovery often results in unfair surprise at trial, or worse, conviction of innocent defendants.

(When lawyers say “discovery,” they are not talking about a TV channel.)

What can defendants obtain from discovery in federal criminal cases? 

Federal criminal discovery is governed by three sources of law: Rule 16 of the Federal Rules of Criminal Procedure, the Supreme Court cases of Brady and Giglio, and the Jencks Act.

Rule 16:

Rule 16 of the Federal Rules of Criminal Procedure is the chief source of law governing discovery in federal criminal cases.  Under Rule 16, once a defendant makes a demand on the government, the government is required to produce items such as the defendant’s statements, the defendant’s criminal record, reports of any examinations and tests, documents or other physical objects it intends to introduce at trial, and more.  Rule 16 is a reciprocal rule: once the defendant invokes Rule 16 for discovery, the government can demand the same from the defendant.

Brady and Giglio

The Supreme Court has held through a series of cases, starting with Brady v. Maryland, 373 U.S. 83 (1963), that the government has a duty to produce exculpatory evidence to the defendant.  For example, if a defendant is suspected of murder, but the government has evidence that a DNA test conducted on the murder weapon does not match the defendant, the government must produce that evidence to the defendant.

In Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court extended Brady’s rule to cover impeaching information.  Thus, in addition to exculpatory evidence, the government is required to disclose all information that tends to undermine the credibility of its witnesses. For example, if the government plans to call an agent to testify, and the agent was previously disciplined, the government must produce the information about the disciplinary action to the defendant.

Together, Brady and Giglio are extremely important rights of discovery in criminal cases. Although the government is required to produce this information on its own, often it is to the defendant’s advantage to send a Brady letter to the government outlining the things that he believes are exculpatory. By doing so, the defendant can ensure that the government will not overlook certain evidence that is potentially exculpatory.

Jencks Act

The Jencks Act is the final source of discovery for criminal defendants.  Under the Jencks Act, a party calling a witness is required to produce any recorded statements of that witness pertaining to the witness’s testimony.  For example, if the government calls a victim to testify about an assault, and it has a recording or a report of a previous interview with the victim about the assault, it must produce the report or recording to the defendant. Importantly, the Jencks Act only applies to recorded statements. Thus, if the victim was previously interviewed, but the interview was not recorded or written down, the Jencks Act would not compel the government to produce a summary of the interview.

Although most law enforcement agencies in the federal government have written policies requiring all interviews to be recorded, it is still a good practice for the defendant to send a letter to the government specifically requesting that interviews and meetings with potential witnesses be memorialized in writing.

Together, Rule 16, Brady/Giglio, and the Jencks Act represent the only sources of discovery available to defendants in a federal criminal case. Thus, it is paramount for an attorney in a federal criminal case to make good use of these three sources, and to ensure that the maximum amount of information is obtained under each.

How does federal criminal discovery work in practice? 

In an actual federal criminal case, discovery typically begins after a defendant has been arraigned.  At the arraignment, the prosecutor and the defendant’s attorney may sign a discovery agreement that outlines the deadlines for the government to disclose each type of material that is discoverable. Often, the government will seek deadlines that are close to trial. It is important for your attorney to try to negotiate for early disclosure, so that you have ample time to review the documents and other disclosures with your attorney and to prepare for trial.

How discovery is actually produced tends to vary by jurisdiction as well as by case.  In most cases, the government will simply send your attorney documents or, as is more often the case today, electronic data on hard drives or DVDs. Sometimes, especially in cases involving sensitive information or vulnerable witnesses, the government may not produce the actual documents, but instead require your attorney to review the documents at their office.

Discovery in federal criminal cases tends to be an ongoing affair.  This means that the first set of documents or data produced by the government in a case will rarely be the last. The production of discovery will continue throughout the life of the case, and sometimes continuing even into the trial. Obviously, when the government produces important evidence right before trial, or during trial, this can cause problems for the defense attorney, who may not have time to review all this information for trial. Sometimes this is through no fault of the government: they simply did not have this information until right before trial.  Sometimes, however, the government may have deliberately delayed producing discovery in order to secure a tactical advantage.  It is important for your attorney to keep an eye out for any abusive discovery practices by the government, and to raise any suspicious discovery practices with the presiding judge.

Conclusion

Federal criminal discovery can be a complex field to navigate, and sometimes local practices may not, in fact, comply with the letter of the rules. If you are involved in a federal criminal case, make sure that your attorney is familiar with how federal criminal discovery works, or you may miss important information that could help you win your case.