Discovery in Federal Cases

Discovery is the generally the process where information is exchanged in a federal court case. Many people use the term “discovery” to mean information that the federal government has to prosecute a Defendant. However, discovery includes information that can be used to defend someone against federal charges. Discovery is also sometimes the term use to the investigation of a case by the defense team although this is not technically “discovery.”

In the Southern District of California, the United States Attorney’s Office typically produces initial discovery very early in a case and without any written request by the Defendant. This can assist in reviewing a case with a client and typically can lead to a full evaluation of whether to take a case to trial or to accept a plea agreement.

Each federal jurisdiction can have different procedures for obtaining discovery. That being said, Rule 16 of the Federal Rules of Criminal Procedure controls “Discovery and Inspection” in federal criminal cases. Rule 16 requires the government, upon a defendant’s request, to turn over the following for individual defendants:

• Defendant’s Oral Statement – statements made by the defendant before or after arrest in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial.
• Defendant’s Written or Recorded Statement – any written or recorded statement by the Defendant if the statement is within the government’s possession, custody or control including the Defendant’s recorded testimony before a grand jury relating to the charged offense;
• Defendant’s Prior Criminal Record
• Documents and Objections – this includes books, papers, documents, data, photographs, tangible objects, buildings or places, or copies of any portions of these items that are in the possession of the government
• Reports of Examinations and Tests – copies of any physical or mental examination or any scientific test or experiment
• Expert Witnesses – a summary of any testimony that will be given at trial by an expert witness

Investigation by the Defense Team

In every case that we handle, our office will evaluate whether to use investigators or experts in order to prepare the defense of a case. Our office always tries to independently verify information that is necessary to defend a client. Very early in a case we will interview our client (or possibly will have an investigator we have hired do this) so that we can get the names and contact information of possible witnesses to interview or locate items that could be used in the discovery process. This can include anything from photographs of the scene of an arrest or area in question to bank statements or text messages that might be on a client’s phone or computer. Typically we tell clients that the more information they can provide to us, the stronger our investigation and evaluation of a case will be.

What About Attorney Client Privilege and Discovery?

Everything that is told to an attorney or investigator of the defense team is protected by attorney/client privilege. This means that your attorney cannot disclose anything that has been told to them unless a Defendant agrees to this being disclosed to the prosecutors. If a case is proceeding to trial, a Defendant will have to turn over any evidence that will be presented at trial (including test results, pictures, witness statements, etc.). This is always something that is addressed on a case by case basis.

“Brady” Orders

In many jurisdiction a “Brady” Order will be entered by a Court without the Defendant making any requests or motions. This order is based on the case Brady v. Maryland, 373 U.S. 83 (1963). This case basically requires that the government must provide a Defendant with any exculpatory evidence. This includes any evidence that could be favorable to a Defendant’s case or that could be used to attack a prosecutor’s witness or other government evidence. If this order is violated it could lead to the dismissal of a case.

Motion to Compel Discovery

In many cases a Defendant might file a motion to compel discovery as a part of the discovery process. In the Southern District of California this does not necessarily mean that the Defendant has not been given some piece of evidence, but it is a formal request for particular items of discovery. In other jurisdictions (and in the SDCA) a Motion to Compel Discovery might be used because of a dispute with the government over evidence that needs to be turned over. This motion will be heard by a Court and a ruling will be made that either requires disclosure of evidence or prevents it.

Get More Information About California Federal Criminal Defense

If you or a loved one have been arrested on federal charges in California, contact a lawyer from Rist Law Office to discuss your case. Our office will take the time to meet with you or your family to begin preparing an aggressive defense of your case. For more information or to speak to a lawyer today, call us at (619) 377-4660.