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In the United States federal court system, “discovery” refers to the pre-trial process by which parties to a litigation—both the government and the defense—exchange information and evidence that is relevant to the case. The rules governing discovery are set out in the Federal Rules of Criminal Procedure, specifically Rule 16.

The government has an obligation to provide the defense with various types of information, including:

The Defendant’s Statements:

The prosecution must disclose any oral, written, or recorded statements made by the defendant that are within the government’s control and are material to the case.

The Defendant’s Record: If the government intends to use at trial any evidence of prior convictions, they must disclose this to the defense.

Documents and Objects:

The prosecution must disclose any documents, data, photos, tangible objects, buildings, or places within the government’s control that the defendant is entitled to inspect and that are material to preparing the defense or that the government intends to use in its case-in-chief at trial.

Examination Reports: If the government has any results or reports of physical or mental examinations or scientific tests or experiments that are material to the defense or that the prosecution intends to use in its case-in-chief, these must be disclosed.

Expert Witnesses:

The prosecution must provide a summary of any expert witness testimony, including the witness’s opinions, the bases for those opinions, and the witness’s qualifications.

Reciprocal Discovery from the Defense

The defense is also required to provide certain information to the prosecution, including:

Documents and Objects: If the defense intends to use documents, data, photos, or tangible objects at trial, they must permit the prosecution to inspect and copy or photograph them.

Reports of Examinations and Tests: Similar to the prosecution’s obligation, if the defense intends to use any results or reports of physical or mental examinations or scientific tests or experiments at trial, they must disclose these to the prosecution.

Expert Witnesses: The defense must also provide a summary of any expert testimony they plan to use at trial.

Brady Material

Under the landmark Supreme Court case Brady v. Maryland, the prosecution is required to disclose to the defense any exculpatory evidence in its possession, custody, or control. Exculpatory evidence is any information that might be favorable to the defendant and is material either to guilt or punishment. This includes information that could be used to impeach the credibility of a prosecution witness.

Giglio Material

In addition to exculpatory evidence, the prosecution must disclose any impeachment evidence, as required by Giglio v. United States. This typically refers to evidence that could be used to challenge the credibility of a witness, such as deals made with witnesses in exchange for their testimony.

Limitations and Timing

Discovery in criminal cases is more limited than in civil cases. The Federal Rules of Criminal Procedure and case law dictate what must be shared and when. Often, discovery is “ongoing,” which means that the obligation to disclose pertinent information continues up to and during the trial.

Protective Orders and Classified Information

Sometimes the court will issue protective orders to restrict dissemination of sensitive information. This is common when the information is classified or could endanger witnesses. The Classified Information Procedures Act (CIPA) provides additional procedures for handling classified documents in criminal trials.

Consequences of Not Providing Discovery

Failure to provide discovery can result in various penalties, such as suppression of the evidence at trial, dismissal of charges, or sanctions against the offending party. In extreme cases, if the prosecution withholds exculpatory evidence, a conviction may be overturned.

In summary, federal criminal discovery is a process designed to ensure fairness in the judicial system by allowing both sides to access the evidence that will be presented at trial. This process helps to prepare both parties for trial and to negotiate possible plea agreements. It also works to prevent trials by ambush, where one side is uninformed of the other’s evidence.

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