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Gotta Know When to Hold ’em, Know When to Fold ’em: Giving Defense Evidence to Prosecutors Before Indictment

Kish Law LLC

With apologies to the late great Kenny Rogers (who had a house not far from mine in Atlanta) ,  part of the federal criminal defense lawyer’s job is to decide whether or not he should turn over “good” defense evidence to a prosecutor BEFORE an indictment is issued in the hopes that no charges will be brought.  On the other hand, if the prosecutor is going to bring charges anyway, sometimes the criminal defense attorney can get more bang for his or her buck by holding off on revealing the “good” stuff and using the element of surprise during the lead-up to trial.  As old Kenny sang “ya gotta know when to hold ’em, know when to fold ’em.”  Here are some of the considerations that go into this part of being a criminal defense attorney who specializes in federal criminal matters and white collar crimes and appeals.

Many federal prosecutors will tell a Defendant that the Government is on the path toward getting an indictment.  In this scenario, the prosecutor will send what we call a “Target Letter” to the prospective Defendant.  The letter basically says that charges are likely, gives a brief outline of the charges, and tells the person that he or she might want to consider getting a lawyer to talk it over BEFORE the charges are brought.  As a general rule, prosecutors will offer some slight benefit to a person who agrees to plead guilty shortly after getting one of these Target Letters.  Prosecutors also use these Target Letters to get potential Defendants to cooperate against more involved or culpable people, or higher-ups in an organization.

Like many federal criminal defense attorneys, it is very common for clients to come to me after they get one of these Target Letters.  Like many lawyers, I usually will reach out to the prosecutor who wrote the letter to get a somewhat more detailed sense of what the Government is looking at, the client’s potential exposure, the stage of the investigation, whether other people have been charged and/or sentenced, and any other pertinent details.  I then meet the client to get his or her side of the situation.  Here is where it starts to get tricky.

Some clients did the crime and want to end the matter as simply as possible, so that is a matter of trying to negotiate a better deal and trying the convince the Probation Officer and the Judge to see things more my way when we get to a sentencing hearing.  Other clients who did something wrong want to hold out and fight.  And, the really difficult cases are where the client did a few things wrong, it might, or might not, be a crime, and as a lawyer I need to decide whether to tell the prosecutor about the facts that might show the person is not guilty.

Some very rational people will be saying, “Why not tell them, otherwise they will charge the client for sure.”  Maybe, but if they already made that decision, why give them something they do not otherwise have?  In my career, I have seen many situations where the defense lawyer handed over what appeared to be really good defense evidence, only to have the FBI or some other agency tear that evidence to shreds when they get the chance to interview (which really means “to intimidate”) the defense witnesses.  Sometimes, it is better to wait as long as possible before turning over the real good defense evidence.  I was able to use this strategy a few years ago, and when they got the “good” stuff shortly before trial, the prosecutors gave up and dismissed all charges.

No two cases or situations are alike.  In the matter I am working on today, my inclination is to give over the “good” stuff and see if we can convince them to not bring charges in the first place.  It is a gamble, but after discussing it with my client, it seems the best move in this case is to not “hold ’em.”

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