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The Madness of Discovery in a Federal Criminal Case

Kish Law LLC
Casual readers (those in Bermuda shorts included) know that I am a criminal defense lawyer in Atlanta who specializes in federal cases.  Some readers even know about “discovery” in a federal criminal case.  These readers know about Rule 16 from the Federal Rules of Criminal Procedure and the constitutional principles underlying the long-standing “Brady rule“.  I am currently trying to plow through some discovery materials in some relatively new federal criminal cases, and for those readers who have had to do this on the defense side of a case, you know how maddening this can be. It’s enough to make you want to pull your hair out. 
First, the maddening aspects of the rules themselves.  By the language of the rules, the only “evidence” that the prosecutor has to hand over to the defense prior to trial in a federal case is limited to documents and materials that the government intends to use at trial, the results of any expert testing, and any statement made by the defendant to a known law enforcement official. The Brady rule also says they have to turn over any information tending to show that the Defendant is not guilty, but they actually are not required to turn it over prior to trial, and only have to reveal this exculpatory information to the defense so that the attorney at least has some time to make use of the evidence.  Note, this limited list of information does NOT include the names or statements by witnesses.  The utterly absurd Jencks Act (a vestige of the 1950’s!) says that the prosecutor only needs to provide a witness’s prior statement to the defense AFTER the witness has finished his government testimony in a trial.  Talk about trial by ambush. The rules and constitutional principles that impact discovery, along with the data-driven explosion of information, have led most federal prosecutors to basically ignore the old days and provide lots of information up front to the defense lawyer.  Nowadays they even give us witness names and their statements, figuring we are going to find out anyway so why play “hide the ball.”   From the old days, when we basically learned very little, we have come to the modern era, where prosecutors dump so much data on the defense that a single attorney is disadvantaged, unless he or she is very technologically capable and assisted by highly skilled support staff (like the wonderful folks with whom I work). But, even when a modern federal criminal defense lawyer has the tools and staff to access, search and then categorize the relevant information out of the mountain of data a prosecutor turns over, that same lawyer is then confronted with never-ending technological problems from the prosecution’s side.  For many years, the government produced all of its discovery in this absolutely horrible program that required the reader to look at each page individually, without the ability to search the entire database.   We figured out some work-arounds over the years, but now there is a completely new problem: multiple formats from multiple agencies.  That’s right, different law enforcement agencies use completely different formats and tools for recording and transmitting information.  We are currently trying to figure out how a group of videos from various agencies can be accessed, and my tech folks are also pulling their hair out. So, if you see a bunch of bald men and women in lawyer suits heading to court, just know that they are likely federal criminal defense lawyers in the middle of plowing through their own discovery.

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