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Discovery in Federal Criminal Cases: Rules Versus Reality

Kish Law LLC

I am currently plowing through the “discovery” in a federal criminal case brought against my client here in Georgia.  Discovery is the word we use to describe the evidence or exhibits that prosecutors are obligated to hand over to the defense lawyer at the beginning of a criminal case.  Going through all these materials in my current federal case reminds me of what I’ve learned over the years, and how the discovery “rules” are often far different than what really happens in criminal cases.

One of the biggest “rules” is based on a Supreme Court decision from 1963, the famous case of Brady v. Maryland,  373 U.S. 83(1963).  This rule applies to both federal criminal cases and those in the state court systems. The prosecutors conveniently “forgot” to hand over to defense counsel a statement made by Brady’s  co-defendant that Brady did not kill the victim, the other guy did it.  The Supreme Court said that suppression by the prosecution of evidence favorable to an accused who has asked for it violates due process if the evidence is “material” to guilt or to punishment, and it does not matter whether the prosecutor acted in good faith or bad faith.  Seems kind of simple, right, if the AUSA or DA has something which shows the the Defendant did not do the crime or should not be punished so severely, the “due process clause” from our wonderful Fifth Amendment  demands that the prosecutor give it up.

Now, here’s the reality, and I’ve always thought it is similar to the old expression about letting the fox guard the henhouse.  Lawyers, by our very natures, are competitive people.  We want to win.  Human nature tells us that if a prosecutor has evidence that undercuts his or her case, that DA or AUSA is less likely to want to turn it over than a more independent person.  But, here’s the crazy part of the “rule” as it has been modified over the years.  The DA or AUSA is the person who decides to turn it over (see what I mean about the fox guarding, etc).  Defense counsel might never even know about the exculpatory stuff if the prosecutor (and his or her agents) successfully bury the materials in files that are never turned over.  Even “good” prosecutors can fail to appreciate how some evidence or information is exculpatory, because they are looking at everything through a different lens than the criminal defense attorney.

The problems with the Brady rule are not something dreamed up by yours truly.  I have had multiple cases over the years where through dumb luck or perseverance we found exculpatory evidence which the prosecutor had in his files all along (yet he once more forgot to let me know about it).  Another question is sometimes asked: what does the Judge do when it is proven that the prosecutor broke the law by not turning over evidence that shows the Defendant did not do the crime?  In 99% of the cases, NOTHING.  There are a few high-profile matters where the prosecutors got into trouble, but the vast majority suffer no adverse consequences by hiding the ball from defense counsel.

Another rule comes from the Supreme Court case of Giglio v. United States, 405 U.S. 150 (1972).  The Court said that the prosecutor’s failure to let everyone know that a witness had been promised not to be prosecuted in exchange for his testimony was a failure to fulfill the duty to present all material evidence to the jury, thus violating due process.  This is the rule even if the prosecutor’s hiding of the “deal” with the witness was done out of negligence and wasn’t intentional.  We often use the term Giglio material when talking about any deals that witnesses in a criminal case may have entered into with the government.

Now, the reality of the Giglio rule.  I’m working on an older case where shortly before trial the AUSA sent a “target letter” to a person they really wanted to use as a witness against my client.  The guy had previously declined to say anything.   So, prosecutors sent him a target letter, which tells that person (and his or her lawyer) that the government is seriously considering bringing a federal criminal case.  Amazingly,  the target wakes up,  smells the coffee, and conveniently “remembers” a conversation with my client from ten years earlier!  The prosecutors claim they are following the law by telling defense counsel about the target letter, but we all know the real deal was worked out between the AUSA and the target’s lawyer, nothing in writing that would have to be turned over, but when the target amazingly recalls the decade-old “talk” with my client, no criminal case is ever brought.  It’s enough to make me sick sometimes.

I need to get back to reviewing then discovery materials in this case I’m working on.  I’ll write more in a few days about some other ways that reality is different than the rules in a criminal case.

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