Abiding by rules of discovery in federal criminal cases

There is some debate over the extent to which discovery in federal criminal cases actually exists. It does exist and all criminal lawyers need to abide by it.

“Discovery obligations at a federal level are much less open than in some States and are actually a function of case law, statute and rules,” said Miller Leonard, a Denver federal criminal defense lawyer and State criminal defense lawyer. “The fact is that federal prosecutors are usually bound by the rules of discovery as laid out in the Jencks Act and two other major court cases on point to this area, hence the reference to case law,” he added.

To help things along a bit, the Department of Justice recently released several memorandums on the discovery obligations of federal prosecutors. Those memos indicate that prosecutors need to get all the exculpatory information/evidence and impeachment information from the prosecution team. Exculpatory evidence/information is favorable to the defendant and either clears them or tends to clear them; in other words, prove them innocent. Inculpatory information/evidence usually proves guilt.

The prosecutor has to disclose to the defendant any exculpatory evidence they have, if they don’t, it may mean the case is dismissed or the court may impose sanctions. This is related to the constitutional right of due process and the prosecutor’s duty to find justice.

“What needs to be reviewed is just as important as where to look for discoverable information,” Leonard indicated. “In some cases, it may be self evident where to look for this type of information, but in others, things go overlooked due to time constraints or oversight,” he suggested. Often it is smart to check the files of the agency that did the investigation for useful information. Another area to access would be the confidential informant/witness/human source file and relate that to any and all evidence and documents garnered in the course of the investigation.

Looking around for paperwork or evidence gathered by civil attorneys is at time helpful, as are case related communications on all substantial issues and information from eyewitness interviews. It is also a good idea to source potential Giglio vs. United States information in relation to police witnesses and ordinary witnesses, especially in cases involving “snitches” or confidential informants as the government often has made a deal with these witnesses for their cooperation in the case.

The Giglio rule extends the prosecution’s duty to also share exculpatory information relating to the credibility of government witnesses and non-government witnesses. This case is what extended the duty of the government to share inculpatory evidence along with exculpatory evidence.

“Aside from figuring out what information is discoverable, its revelation is crucial to mounting a solid defense and making sure the defendant have a fair trial. In the end, the purpose of discovery in criminal cases is to assure a fair trial, effective assistance of counsel and a just verdict,” explained Leonard.

To learn more, visit http://www.fedcrimdef.com or call 303.623.2721.

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