I am getting ready for some hearings in a federal criminal case I am working in in Gainesville, Georgia. My preparation caused me to think about and want to put down some thoughts on the strategies that sometimes impact such matters, plus the tactics we use to implement the strategy in a particular case. That’s a fancy way of saying I try to plan ahead for what I want to accomplish when I file a pretrial motion in a federal criminal case.
First, we often are able to convince a federal Judge that we are entitled to a “pretrial evidentiary hearing” concerning one or more of our Pretrial Motions. Most defense lawyers relish such a hearing. To begin with, it is always a benefit to get one or more of the government witnesses under oath before the trial. At such a hearing, the defense attorney can sometimes try to “lock in” the government witness. This means the lawyer will get the witness to thoroughly accept and adopt a certain version of the facts. When the lawyer locks the witness into this specific story, it means that same witness will have a hard time changing or modifying his or her version when the trial comes along. The attorney will have the transcript from the pretrial hearing. It is always an enjoyable sight to see an accomplished criminal defense lawyer armed with a pretrial hearing transcript whipping up on a witness who decided to change his or her version.
In addition to locking the witness into his or her story, the pretrial hearing is also valuable because the attorney gets to kind of measure the witness, to see if the person is going to be a difficult at trial. Cross examining a government person at trial when the lawyer has never previously encountered the witness can sometimes be frightening. Having a pretrial hearing where the lawyer more or less gets a free whack at the witness can reduce the fright factor at the later trial.
Above and beyond locking in and knowing more about the government witness, the savvy federal criminal defense lawyer will sometimes break one of the oldest rules when questioning a government witness at a pretrial evidentiary hearing. That old rule says: “Never, never, never ask a question if you do not already know the answer.” However, at a pretrial hearing, the lawyer has more leeway, less danger, and can take more chances. Lawyers can ask about areas that are unclear, and with no jury in the room, the attorney is less afraid of hearing information he or she has not previously known about.
Getting additional “discovery” is one more benefit for the criminal defense attorney who gets an evidentiary hearing in a federal case. Those unfortunate souls who have read this blog on other occasions know about the somewhat restricted nature of “discovery” in federal criminal procedure. Getting a government witness on the stand well in advance of trial can sometimes rectify this problem.
Prosecutors are kind of tricky, and will try to prevent the defense attorney from using any of the strategies laid out above. They will call the witness, but not produce any reports the witness may have filled out. This is when the wily defense lawyer will remind the Judge about Rule 26.2(g) of the Federal Rules of Criminal Procedure. It basically says that the prosecutor needs to turn over any “statement” previously made by the witness. This “turn-over-the-statement” rule applies to a federal criminal trial, but many lawyers forget that Rule 26.2(g) also applies to pretrial hearings.
OK, back to work preparing for my upcoming hearings!