Federal Criminal Discovery

What Laws Control How Defendants Obtain Discovery in Federal Criminal Cases?

Federal criminal discovery is governed by three sources of law: (1) Rule 16 of the Federal Rules of Criminal Procedure, (2) the Supreme Court cases of Brady and Giglio, and (3) the Jencks Act.

Rule 16 of the Federal Rules of Criminal Procedure is the rule that controls 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. Once the defendant invokes Rule 16 for discovery, the government can demand the same from the defendant.

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court found that the government has a duty to produce exculpatory evidence to the defendant. For example, if a defendant is suspected of possessing a firearm but the government has evidence that a DNA test conducted on the 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 impeachment information. That means that any information that undermines the credibility of a witness must be disclosed to the defense. For example, if the government plans to call an eyewitness to testify, and the witness has a prior felony conviction, the government must produce the information about the conviction to the defendant.

Brady and Giglio are extremely important to defendants in criminal cases. While the government is required to proactively produce this information, often it is up to the defendant’s lawyer to fully investigate and ensure anything exculpatory is made available to the defense. Federal criminal defense lawyers should 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.

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 prior recorded statements of that witness pertaining to the witness’s testimony. For example, if the government calls a law enforcement agent to testify about an investigation, any recordings or reports authored by that agent must be produced to the defendant. However, the Jencks Act only applies to “recorded statements”. If something was not recorded or written down, the Jencks Act would not compel the government to produce the notes of the interview.

Together, Rule 16, Brady/Giglio, and the Jencks Act represent the primary sources of discovery available to defendants in a federal criminal case. To ensure that the maximum amount of information is obtained under each, the defense team must be diligent in their investigation of the evidence. It is important for the defense team to not only understand what has been provided but to also understand what has not been provided.

How Does Federal Criminal Discovery Work?

In a federal criminal case, discovery typically begins after a defendant has been arraigned or after a scheduling order has been entered by the court. This scheduling order sets the deadlines for what and when evidence must be disclosed. These scheduling orders can vary by jurisdiction as well as by the complexity of the 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. In cases involving sensitive information or vulnerable witnesses, the government may require the defense attorney to review the documents at a government office.

Discovery in federal criminal cases tends to be an ongoing process. As such, the first set of documents or data produced by the government is not the last. The production of discovery will continue throughout 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 evidence takes the government a longer time to process and it is not available until right before trial. Sometimes, however, the government may deliberately delay in producing discovery in order to secure a tactical advantage. If that happens, having an experienced federal criminal defense attorney is critical because the defense can move to exclude that evidence.

Contact Haas Law About Your Federal Criminal Case

Federal criminal discovery can be a complex field to navigate. If you are involved in a federal criminal case, Haas Law is familiar with how federal criminal discovery works. At Haas Law, we monitor the government’s discovery practices and raise any suspicious discovery practices with the presiding judge. Cases can be won where the government intentionally hid exculpatory evidence. If you are facing federal charges, call Haas Law today at 407-755-7675 for a free initial consultation.