Are you taking full advantage of the discovery opportunities in your federal criminal cases? Small changes in your discovery practice can generate big rewards. Consider these six tips, excerpted from Federal Criminal Practice:
1. Request Government Agents’ Notes of Interrogation
You are entitled to any written record of your client’s oral statements to a known government agent, even if the government does not intend to use the statements in evidence. When you request production of these statements, include a demand for all government agents’ notes of interrogations of your client, including all handwritten notes from which computer reports or notes are prepared. There may be important differences between handwritten notes taken at the time of the interview and reports or notes composed days later.
2. Ask Prosecutor to Categorize Production of Documents, Data and Tangible Objects
Upon request, the government must produce documents, data and tangible objects within its possession, custody or control that are (a) material to the preparation of the defense; (b) intended for use by the government as evidence in-chief at trial; or (c) obtained from or belonging to the defendant. In your discovery letter or motion, ask the prosecutor to identify each item produced as fitting within one of these categories. In a case with voluminous documents, data and objects, this will greatly assist you in trial preparation by allowing you to readily separate those materials the government intends to use in evidence at trial, as well as those referred to or relied upon by government witnesses.
3. Request Polygraph Evidence
The federal rules of criminal procedure require the government to disclose, upon request, reports and results of scientific tests and physical and mental examinations. While polygraph tests may not qualify as scientific tests subject to disclosure under FRCrP 16(a)(1)(F), if you believe the government gave such a test, request production of written summaries of all aspects of the test: questions asked, responses given, examiner’s conclusions. Under Brady v. Maryland and United States v. Bagley, the government must disclose impeachment evidence, and the polygraph evidence could be impeachment evidence.
4. Move to Exclude Expert Opinion Evidence as Based on Hearsay
When the government intends to use expert testimony during its case-in-chief, the government must furnish, upon request, a written summary of each expert’s expected testimony and qualifications. The summary must include the facts and data on which the expert’s opinion is based. If the summary reveals that the basis of the expert’s opinion is hearsay evidence, its admission may violate your client’s Sixth Amendment confrontation rights. Move in limine to exclude the inadmissible evidence. If the evidence is central to the expert’s opinion, move for voir dire of the witness and to exclude the testimony.
5. Request Summary of “Soft” Expert Opinion Testimony
The government frequently calls a variety of law enforcement officers to give so-called “soft” expert opinion testimony at trial. When it does, it must produce a written summary of each officer’s expected testimony, just as with any other expert witness. Make sure your request for notice and summary of the government’s intent to use expert testimony includes these “soft” experts. This may protect you against an assistant U.S. Attorney unexpectedly calling the case agent at trial to tie up a loose end in his case, exposed by your cross-examination (e.g., to explain why fingerprints are difficult to lift from a firearm after you have stressed the absence of fingerprint testimony).
6. Request In Camera Review of Written Statements Deemed Not Relevant
If the government refuses to disclose a written statement made by your client, on the grounds that all or part of the statement is not relevant, request an in camera review and determination of relevancy. If the district court rules that the statement is not relevant and, therefore, not subject to production, ask the court to retain it for review by the court of appeals should your client be convicted. If the prosecutor later uses the statement for impeachment, your record on appeal will contain the complete text of the statement.
Barry Boss served as Assistant Federal Public Defender in Washington, D.C. between 1995 and 2000. Currently, he is the managing partner of the Washington, D.C. office of Cozen O’Connor, where he handles complex criminal matters, with a focus on white-collar crime.
Jeffrey H. Rutherford served as a Deputy Federal Public Defender in the Central District of California between 1999 and 2004. Currently, he is a partner with the Los Angeles office of Crowell & Moring LLP, where specializes in white collar criminal defense. Mr. Rutherford also handles criminal appeals, grand jury investigations, and parallel administrative and enforcement proceedings.
Edward F. Marek was the Federal Public Defender for the Northern District of Ohio from 1973 to 1994. He has taught evidence and criminal procedure as a member of the Adjunct Faculty of Cleveland-Marshall College of Law since 1972.