Rules Versus Reality #2: Theory and Practice of Discovery in Federal Criminal Cases

I am taking a break from going through discovery materials in one of my current federal criminal cases that happens to be here in Atlanta.  I posted the other day about how the actual practice of federal criminal law is far different than the constitutional “rules” created in some cases from the United States Supreme Court.   Here’s a little more on the differences between theory and practice.

First, let’s talk about the timing of when we get the materials that the prosecution is supposed to turn over to defense counsel.  For example, here in the Northern District of Georgia, we have a Local Rule that says discovery “shall” be turned over at the arraignment.  Don’t take my word for it, read Local Criminal Rule 16.1, it flatly says the prosecutors are supposed to make all this stuff available to the defense on Day One of the case.  This is a Rule that makes a lot of sense.  Prosecutors get to decide when they bring a case, and since they are presumed to be ready on Day One, it makes a lot of sense to require that they produce everything to the defense on that date.  Ah, but the reality is far different.  In my current case, they took five weeks to produce materials.  In another case it took 3.5 months to get me the evidence that I knew they had all along.  They rarely give any excuses, they just give it to me late, and ignore my repeated complaints.

Second, we should also talk a bit about the type of materials that are turned over.  I sound like a very old lawyer when I remind people about how discovery in most federal criminal cases consisted of a small folder with 100-200 pages of material when I began practicing law.  Everything is far different in the digital age.  Most of the time, we now need to provide at least a hard drive to hold all the materials that a prosecutor turns over as the discovery in a federal criminal case.  You would think that larger volume of material would help the defense, more is better, right?  Ah, but as I have mentioned before, the government likes to hide the meaningful stuff among the forest of irrelevant data.  More information actually results in more work for the already harried criminal defense lawyer handling a federal case.

Third, I also want to explain how rapid technological advances also greatly impacts not only timing and volume of discovery, it also can make the work more difficult by virtue of the method by which the material is captured, stored and disseminated.  I never cease to be amazed that the federal government seems to have some horrible people negotiate its software contracts.  Prosecutors then have to use these awful programs into which the discovery materials are crammed before the stuff is turned over to the defense.  When we on the defense side get the materials housed in this lousy software, we often have to basically unpack the whole mess and save it again in better software that makes it more accessible and searchable.  So, even if a prosecutor produces all the material in a timely fashion and does not try to hide the ball by including a mountain if irrelevant junk, we still are often hampered in trying to simply open and then use the stuff they turn over.

Rules versus reality.  Back to work for me and anyone who has enough time to spend reading this.