Federal Criminal Discovery

Kish Law LLC

Readers-you all know that I specialize in federal criminal defense, and handle investigations and defend against actual federal criminal prosecutions here in Atlanta and throughout the United States.  Today, I am plowing through some “discovery” materials, and that caused me to reflect on the changes to this part of my practice during my 40 plus years of defending clients against the “Feds.”

Federal law requires that the Government provide certain materials to the Defendant and his or her attorney.  Some people call this the “evidence” but it is both broader and more narrow than that.

By law, the Feds have to give the Defendant all documents, physical evidence, and any expert testing that the prosecutor intends to use during a trial.  Note that the last line said nothing about what the witnesses say.  Under the law, the federal prosecutor can hold back the witness statements until the actual trial, which is, obviously, grossly unfair.  In addition, Government also needs to hand over any “Brady” material, which means anything tending to show that then Defendant is not guilty.

While the law only requires a small amount of material to be turned over to the defense, the past 40 years of practice has eroded that rule to an almost meaningless mush of words.  Nowadays, prosecutors drown the defense with data and details.  A single email leading to an individualdual transaction yields mountains of data, and the trick for the defense is to see if there is a way to wade through this bog to find the real heart of the case.  Furthermore, prosecutors now regularly hand over so many witness statements that it is difficult to figure out which one is important as opposed to some meaningless interview with a federal agent.  As a result, over the past four decades I went from not knowing enough to knowing too much, but the bottom line always has remained the same:  figure out what happened and defend my client.

Lots of changes over the years but I still advise people being investigated or prosecuted to consult with an attorney who specializes in these complex matters.  For me, now it is back to my most recent case here in federal court in Atlanta.

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