IV. Pre-trial Discovery and Motions Practice


After indictment, the options of a criminal defendant are quite limited. He may plead not guilty and proceed to trial by jury. He may plead guilty to all charges or he may attempt to arrange for a plea bargain – i.e. – a negotiated plea of guilty. In a very few situations, he may be allowed to enter into a pre-trial diversion program. In the majority of all cases, however, the ultimate decision is quite simple: either one pleas guilty to some or all of the charges or he proceeds to trial.

Any competent defense attorney will advise his client to postpone this ultimate decision until after the Government’s evidence has been analyzed. Through access to documents, forensic reports, physical evidence and exculpatory material in the possession of the Government, a given defendant may feel that his best option is to plea bargain with the Government. This oftentimes occurs because in many instances the Government’s evidence will overwhelmingly demonstrate the defendant’s guilt. Depending on the nature of the material disclosed, however, a defendant may elect to proceed to trial by jury even if he knows himself to be guilty. For example, a given defendant may feel that the Government’s evidence is insufficient to demonstrate his guilt beyond a reasonable doubt. In cases where a defendant knows himself to be innocent of all wrongdoing, he/she will in all likelihood proceed to a trial by jury regardless of what the Government’s evidence indicates. In all of these situations, access to certain aspects of the Government’s case is invaluable in helping to resolve which of the stated options is best. And if the decision is made to proceed to a trial by jury, pre-trial discovery is invaluable in preparing a defense for trial.

The federal rules of discovery are designed to ensure that criminal defendants receive fair trials. This is accomplished primarily through specified rules which permit pre-trial examination and discovery of the bulk of the Government’s evidence. In this regard, the rules give meaning to the Sixth Amendment rights of all criminal defendants to cross-examine and confront witnesses at trial by providing that prior to such examination the accused will have access to the evidence which will be offered against him.

Through pre-trial examination of the Government’s evidence, an accused is enabled to test before a jury the reliability of evidence being offered against him and to counter it with evidence of his own. As we shall see, however, while a criminal defendant is entitled to discover a great deal of the Government’s case, he is not entitled to know everything about it. While a criminal defendant is entitled to a fair trial, he is not entitled to threaten, injure or intimidate witnesses, nor should he be able to fabricate evidence or suborn perjury in order to “beat the rap”.  Accordingly, the right to pre-trial discovery of the Government’s evidence is circumscribed and specifically limited in areas where abuse of discovery by unscrupulous defendants would likely occur. Indeed, to guard against such abuse the federal rules of discovery provide that the Government is entitled to certain reciprocal discovery of the defendant’s case once the defendant initiates and requests pre-trial discovery from the Government.

The extent to which pre-trial discovery should be permitted in a criminal case is a complex and controversial issue. Some legal scholars would argue that Defendants should be entitled to discover and examine all of the Government’s case pre-trial because all criminal defendants are presumed to be innocent under the law. Others contend that criminal defendants are permitted too much discovery in the federal system and that, limitations on discovery notwithstanding, the guilty are enabled through pre-trial discovery to manipulate the system and escape punishment for their deeds. Although reasonable minds may differ over these matters, it cannot be gainsaid that the federal rules of discovery do not accommodate each different school of thought. What is presented by the rules is a state of counterpoise: a balancing of the concern for fair trials versus an equal concern for the right of the public to see criminals brought to justice. What follows then, is an analysis of Congress’ attempt to protect the rights of the public and the accused.

Next section: A. Rule 16 of The Federal Rules of Criminal Procedure

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