What is Discovery in The Federal Criminal Law System?

Discovery is loosely a synonym for evidence. In the federal criminal justice system, discovery constitutes the material in the government's possession upon which it made the determination to charge the defendant. Depending on the nature of the case, such discovery might include things like witness interviews, investigator reports, polygraph examiner reports, forensic expert reports, and other documents and records.

Yes and no. The rules of criminal procedure and applicable case law require the government to turn over this discovery to the defendant's attorney for his or her review. More specifically, the government is required to produce evidence in its possession that might be categorized as Brady material, which is material that tends to exculpate the defendant. This requirement may be memorialized in a standard discovery order. The purpose of discovery is to afford your lawyer the opportunity to bring any legal challenges about the admissibility of the government's evidence. Discovery is also used to counter the government's case and to prepare for trial. For more information on discovery not subject to disclosure, see the Federal Rules of Criminal Procedure, Rule 16(a)(2), discussed in more detail below.

The judges in the Eastern and Western Districts of Michigan will enforce the requirements of the standard discovery order very strictly. Judges are not afraid to hold the government accountable for failing to produce the discovery unless the government has some valid reason. One reason often cited by the government for not providing discovery is simply the volume. In some cases, there may be many thousands of pages of discovery material. Also, there may be an applicable privilege. For example, in child pornography cases the actual images seized will not be turned over to your attorney but will be made available for review at the office of the detective or prosecutor. Also, it should be noted that the requirement is only that the government make the discovery available for review. However, in most cases in the Eastern and Western Districts of Michigan the government will copy any documents requested by the defendant. In the case where you have retained a private lawyer, the government will charge you for the cost of providing the discovery.

Additionally, the government is required to produce any statements that you may have made during their investigation as well as any interviews with witnesses. The government is also required to produce all documents and records subpoenaed by the grand jury.

If a wiretap is involved, the government is not obligated to produce the wiretap itself. However, the government must provide the application for the wiretap and the records relating to that which can be quite large. A typical wiretap application might run 100 or 200 pages.

The government also is not required to produce grand jury material until after the witness has testified for the government. In the Eastern and Western Districts of Michigan it is general practice to require the protection of grand jury material prior to the witness testifying. Technically speaking, though, the government has the right to refuse to do so because of what is called the Jencks Act. This act is found at 18 USC 3500 and technically prohibits the distribution of the material prior to the testimony of the witness.

The discovery process in a federal criminal case is largely controlled by Rule 16 of the Federal Rules of Criminal procedure. According to this rule, the following information is subject to disclosure:

1. The substance of any oral or written statements attributed to the defendant. In the case of a written statement, the government must provide any statement in the government's custody and control, or that the government lawyer, through reasonable due diligence could know exists. This includes recorded statements a federal criminal defendant may have given before a grand jury.
2. A copy of the defendant's prior criminal record.
3. The government must also provide any photographs, books, papers, data, etc., within the government's control, provided this information is material to preparing a defense and/or will be used by the government in its case at trial.
4. The government must also provide a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. The summary must provide a description of the witness's qualifications along with a summary of their opinion and reasons for those opinions.

Rule 16 also provides that the government need not provide any reports, memoranda, or other internal government documents made by a government lawyer agent for investigating or prosecuting the case. This Rule also provides and sets forth the terms of reciprocal discovery.

Discovery is to be provided to the defendant prior to the first pretrial conference with the District Court judges assigned to the case. Then, at the first pretrial after the arraignment the first question asked of the parties by the judge or the magistrate conducting the pretrial is, "has the government complied with its discovery requirements?"

If the government has not, they are generally required to advise the court as to why the delay has occurred and how long it will be before they can comply with the requirements of the standing order of discovery. The court will then tell the government it must produce the material by a particular date. This date will be based on a determination by the court about the exact nature of the material and the government's reason for not having already produced it. If the court feels the government's position is reasonable it will extend the discovery period. The extension will also give your lawyer more time to file motions and possibly extend the speedy trial act requirements.

It is also possible for the government to request reciprocal discovery. This request puts the burden on the defendant to produce any material that might constitute discovery held in the possession of your lawyer. If this happens, the same timeframes as those required by the government will apply to your lawyer. As a practical matter this has little effect because defendants usually do not know what material they are going to present until they have seen a significant portion of the government's case.

Rule 16(b) of the Federal Rules of Criminal Procedure apply to reciprocal discovery. The "discoverable material" under this rule is essentially the same as applicable to the government. Namely, relevant discovery is within the "defendant's possession, custody, or control" that your federal criminal defense attorney intends to use in your case-in-chief at trial. Because the defendant in a criminal case has no burden of proof it is entirely possible that no reciprocal discovery will be provided by the defendant in a federal criminal case.

If discovery is not produced as required, and the government does not offer a satisfactory explanation to the court, then the court has several options. The most extreme option is outright dismissal of the case. While possible, this option is rarely exercised, especially as a matter of first recourse. Instead, a district court judge would usually begin by threatening to hold the government in contempt or take some action against the AUSA assigned to the case prior to taking the more draconian measure of dismissing the case. Nevertheless, a failure to comply on behalf of the government can result in the dismissal of your case.

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