Discovery In Federal Cases: An Overview

Discovery in Federal Criminal Cases - does it exist?  On January 4, 2010 the United States Department of Justice issued a Memorandum for Prosecutors with the stated purpose of giving guidance for Prosecutors regarding criminal discovery (here after Memorandum).[1] The Memorandum is a good overview of prosecutorial discovery obligations in Federal Court.  The purpose of this article is to give a synopsis of the Memorandum.  As this article is a synopsis, the author encourages all lawyers engaged in criminal law to obtain a copy of the Memorandum for their files.  The Memorandum can be found at:  www.justice.gov/dag/discovery-guidance.html.

         Unlike Colorado, which provides for open discovery through Colorado Rule of Criminal Procedure 16, discovery obligations at the federal level are much less open and a function of case law, statute, and rule.  As the Memorandum notes, “[t]he discovery obligations of federal prosecutors are generally established by Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).”[2]  The interplay of the Rules, statutes, and case law are the basic subject of the Memorandum.    

         In order to help facilitate discovery, the DOJ has promulgated its own rules for Assistant United States Attorneys.  The “Department policy states: It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.”[3] This is an important policy statement and serves to remind to both prosecutor and defense attorney the areas in which they should seek and/or expect discovery.

         What to review is as important as where to look for discoverable information.  The Memorandum succinctly advises government prosecutors to look in the following areas for information that is discoverable:

    1.  The Investigative Agency’s File

     2.      Confidential Informant (CI)/Witness (CW)/Human Source (CHS)/Source (CS) File

     3.      Evidence and Information Gathered During the Investigation

     4.      Documents or Evidence Gathered by Civil Attorneys and/or Regulatory Agency in Parallel Civil Investigations

     5.      Substantive Case-Related Communications

     6.      Potential Giglio Information Relating to Law Enforcement Witnesses

     7.      Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants

     8.      Information Obtained in Witness Interview

         The Memorandum correctly notes that the review of discoverable information is the role and duty of the Prosecutor.[4] That said, it is not uncommon for defense counsel to seek out discovery on their own, either through investigation or by use of Court Order.  The above list of items is useful for both the prosecution and defense, in regards to what each should be looking for, in terms of discoverable material.

         Aside from determining what information is discoverable, the disclosure of such information is critical to mounting a proper defense and ensuring a fair trial.  The Memorandum notes that:

Prosecutors are also encouraged to provide discovery broader and more comprehensive than the discovery obligations. If a prosecutor chooses this course, the defense should be advised that the prosecutor is electing to produce discovery beyond what is required under the circumstances of the case but is not committing to any discovery obligation beyond the discovery obligations set forth [by law].[5]

         While it is desirable to have full and fair disclosure in criminal trials, the process by which discovery become available to the defense is a human endeavor.  Thus, discovery can be curtailed by lack of knowledge, time, resources, or, in the rare circumstances, through intentional acts.  The Memorandum offers a nice outline for counsel when encountering issues related to discovery.  It is worth reading!

Endnotes:

     1. Memorandum For Department Prosecutors, David W. Ogden, January 4, 2010

    2.      Memorandum, page 1.

    3.      Id.

    4.      Id. at pg. 3

    5.      Id.