Discovery in Federal Criminal Cases: Practical Issues

Another day here in steamy Atlanta, and another federal criminal case I am starting to work on after being retained by my client. This particular case is in federal court in Texas, but I want to provide some observations that apply no matter where the federal criminal case might be pending.

Readers will recall that the “discovery” materials are those items that the prosecutor is obligated hand over to the defense attorney.  There are various sources of this obligation, found in some statutes, in court rules, and also within our wonderful Constitution’s promise of “due process.”  However, today I want to talk about practical aspects of looking through the “discovery” materials.

First tip for those who may be unfamiliar with defending a federal criminal case: figure out the format.  That’s right, even though most of us operate in our digital lives using well-known tools like Adobe Acrobat or Microsoft Word, federal prosecutors often hand over a series of computer discs that contain material in wildly different formats.  The material is often in a “load file” that generally works only in a certain litigation software.  To reduce all this to the very basics, the feds have nationwide contracts for their software needs, and they often get less than state-of-the-art  programs for storing, accessing and using digital materials.  Many times I get discs that contain multiple formats, and the materials are searchable only one page at a time, meaning that a case with millions of documents and emails can take years to review.  So, what we do is convert everything to a pdf, and then use the Adobe search tools to take a first whack at the materials.  Later, we may use more sophisticated software when we are actually going to court, but I find that this method is a pretty good opening step.

My second tip concerns storage and dissemination of the discovery materials. Obviously, almost all material today is in a digital format, although occasionally we get a case where the Assistant United States Attorney hands over papers, along with computer discs.  We store just about everything on our servers, and also in one of the cloud-based storage services, such as Dropbox.  Cloud storage allows me to access the materials wherever I am, and also lets my client do the same.  So, the attorney needs to make sure that everyone working on the case has the requisite ability to get to the important stuff.

The third tip is based on the fact that (surprise surprise) federal prosecutors do not always turn over everything that they have!  Again, while there are rules governing what must get turned over, prosecutors often are reluctant to or simply do not understand the materials that federal agencies possess that are useful to the defense.  As a result, the lawyer handling a federal criminal case needs to put on his or her thinking cap and figure out where within the far-flung federal government there might be additional material that impacts the case.

The fourth tip is an offshoot of #3–be careful what you ask for, you might get it!  Sometimes, the defense lawyer will ask for additional material, and the prosecutor will send his or her agent looking for it, only to discover even more incriminating evidence against the Defendant! Therefore, the attorney needs to think long and hard as to whether they really really want that extra material, or is this one of those cases where the better course of action is to defend against that evidence which the prosecutor already knows about.

Final tip, then you and me need to go back to real work: be prepared for more materials.  That’s right, the AUSA is supposed to turn everything over on Day #1, but they never do.  They keep getting more and more, and keep getting Judges to excuse their lateness.  I recently reminded a judge who I like personally that he is simply enabling bad conduct when he lets each new generation of baby prosecutors get away with not turning over important material until just before trial.  The Judge acknowledged the accuracy of my point, then shrugged his shoulders and let the tardy disclosure happen with little consequence.  So, the wily federal criminal defense lawyer needs to be ready for new stuff up to and sometimes during trial.