Fighting the Good Fight for Discovery Materials in Federal Court

The arrest is where it begins. A Federal criminal arrest can often be an almost civil event between professional U.S. agents and the target. Once arrested you are brought before a Magistrate for arraignment. At arraignment the matter of reading the indictment, determination of counsel, and conditions of pre-trial release, or pre-trial incarceration, are determined.


What comes next is the most difficult and most important stage: it is called Pre-Trial Discovery. In Federal criminal courts in Miami and Fort Lauderdale all cases, not just some, or a few, but all Federal criminal cases are won and lost in Discovery.  Older lawyers learned Motion Practice, and it is still true that in the technical skills of motion practice a case lives, or dies. There is great truth in the ancient lawyers’ adage that good lawyers have good answers, great lawyers have good questions.  What goes on in Federal criminal courtrooms in Miami and all over Florida, is a struggle to force the U.S. Attorney to reveal evidence that will exonerate.

Over fifty years ago the U.S. Supreme Court wrote the groundbreaking case of Brady v. Maryland. In the Brady decision, the U.S. Supreme Court made the finding that the government’s failure to disclose favorable evidence violates the constitution.  But what the Court gives, it also takes away….when the Court added the inscrutable caveat that the rule only applies to information that is “material.”  Certainly no one knows the unknown, but forcing a prosecutor to provide exonerative evidence is what truly great criminal trial lawyers do best.

This is sadly truest, and most lacking, in Federal criminal courts where prosecutors have an unwritten code of total war to secure a conviction. Most criminal trial lawyers in Federal criminal court will agree that Brady rules are more in the breach then in the observance.  A recent study by the National Association of Criminal Defense Lawyers found that in 620 cases under study Federal prosecutors failed to disclose favorable information in 145 of the 620 cases. It is also widely held by criminal defense lawyers that judges are no friend to criminal defense attorneys in federal court.  The NACDL study concluded that in only 14 percent of the cases judges granted the defendant’s motion. Finding a way to use discovery rules to gain advantage is best done not in anger, but with patience.

Here is an illustration of how it is done: Witnesses, who were known to Federal investigators and determined as not useful to the prosecution, are not interviewed.  In discovery practice, all Federal districts require that field notes of investigators be revealed to defendants Demanding interview lists (not notes) is the way to get the names of witnesses who were not interviewed and do not appear in the investigator’s notes. Resistance by prosecutors is successfully skirted by demanding investigation names of both those interviewed and those not interviewed.

Federal criminal court judges, in my opinion, often thwart defense investigations rather than helping them.  You can encourage a Federal judge’s unwilling assistance by couching your demands in such a way as to suggest failure to grant the motion may well be an ethical violation.  Again, asking good questions is better than having good answers.  When you file discovery requests, such that they place a judge in an area that is between ethically right and wrong, you can overcome a judge’s predilection to expediency in moving his criminal docket. Start with having no fear. Do not fear a judge nor prosecutor. Fear cripples; but knowledge and skill can enlist a Federal criminal judge to assist in your discovery rather than block it.

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