Discovery in Criminal Cases

The basics

On Monday, federal Magistrate Judge Bruce Reinhart entered a fairly standard protective order covering Rule 16 discovery in the case of United States v. Trump. The full order can be found here. That makes this a good moment for us to take up how discovery works in a federal criminal case. What follows is a lot of procedural nitty-gritty, but the details matter. They’ll set the tone for everything to come.

This order only covers discovery of unclassified material. The process for classified evidence will be defined consistent with the Classified Information Procedures Act, CIPA, which we’ve discussed previously. Before classified discovery can take place, Trump’s lawyers will have to receive security clearances, so the timeline for that discovery to begin will be a bit longer. Given Trump lawyer Todd Blanche’s background as a federal prosecutor, that’s something that presumably can be expedited.

The core of Judge Reinhart’s order—and let me emphasize that it is routine—provides that “Defendants and Defense Counsel shall not disclose the Discovery Materials or their contents directly or indirectly to any person or entity other than persons employed to assist in the defense, persons who are interviewed as potential witnesses, counsel for potential witnesses, and other persons to whom the Court may authorize disclosure (collectively, ‘Authorized Persons’).”

The order makes the defense lawyers responsible for the conduct of their clients. It orders the lawyers to ensure that “Defendants shall only have access to Discovery Materials under the direct supervision of Defense Counsel or a member of Defense Counsel’s staff. Defendants shall not retain copies of Discovery Material. Defendants may take notes regarding Discovery Materials, but such notes shall be stored securely by Defense Counsel or a member of Defense Counsel’s staff in the same manner as the Discovery Materials.” In other words, it’s up to the lawyers to make sure that Trump doesn’t walk away with anything received from the government in discovery, not even notes he makes. Discovery material can’t be disclosed to the public, not even in court filings, unless they receive permission in advance. Following any trial, discovery has to be returned, and again the lawyers are on the hook. The court can require a certification from them that everything has been returned. Hopefully, they’ll be more cautious than the lawyers who certified full compliance with DOJ’s subpoena to Trump that set this whole matter off!

Discovery in criminal cases brought by federal prosecutors is governed by Federal Rule of Criminal Procedure 16. It ensures that a defendant has the opportunity to adequately prepare for a trial so that trials comport with due process requirements. Prosecutors have a continuing obligation to provide discovery to a defendant as additional items come to their attention, and a failure to do so can be a serious matter.

Some of the types of evidence the government has an obligation to provide to a defendant who makes a request for discovery under Rule 16 include:

• The contents of any oral statement a defendant makes to law enforcement.

• Written or recorded statements.

• Books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of them, if they’re material to preparing a defense, if the government intends to offer them into evidence at trial, or if the item belongs to/was obtained from the defendant.

• Information about expert witnesses the government intends to use at trial.

The discovery requirements the rules impose on the government are robust. It is not quite “open file” discovery, which would require prosecutors to show defendants everything in their files, but the government must disclose all of the evidence it intends to use at trial. By comparison, courts tend to hold defendants to a much lower standard, even though they are technically obligated under the rules to provide the government with “reciprocal discovery” that includes documents, photos, tangible objects, etc., in their possession and that they intend to offer into evidence at trial.

Prosecutors also have constitutional obligations to provide certain types of information to defendants—evidence that may help a defendant with their defense or with sentencing. The obligation is to disclose material evidence that is exculpatory (tends to show a defendant is not guilty; Brady) and impeachment evidence (undermines the credibility of a witness; Giglio). For instance, evidence that a witness said a defendant was in another state when the crime occurred is exculpatory. Evidence that a witness received a deal from the government for cooperating or was paid for their testimony goes to witness credibility. Material evidence is evidence that has a tendency to make a contested fact more or less likely to be true, and whether evidence is material is a decision largely made in hindsight by a court of appeals following a conviction, so DOJ policy encourages prosecutors to take a broad view of what is included.

Local rules in the Southern District of Florida require that discovery be provided no later than fourteen days after the arraignment, although the judge may order a different length of time. The lawyers for the government and the defendant are supposed to get together within that time to work out an agreement about a discovery schedule if something other than the usual schedule is needed. The local rules go into greater detail than the federal rules about the scope of required discovery, but they generally comport with the way judges who have considered those rules have applied them. The local rules underscore the requirement that the lawyers “immediately reveal to opposing counsel all newly discovered information or other material within the scope of this Local Rule.”

Under the Jencks Act, prosecutors are also required to turn over transcripts or records of a witness’s prior testimony, for instance, before the grand jury. This typically happens at a later stage in the proceedings than Rule 16 discovery.

The U.S. Attorney’s Office for the Southern District of Florida also has its own discovery policy, which establishes the standards that prosecutors in the district are expected to live up to. After problems in the prosecution of Alaska Senator Ted Stevens came to light, the Deputy Attorney General issued a memo that required each district to adopt a written policy for discovery that was consistent with the local practice in their court and compliant with federal rules and constitutional requirements. Local practices can vary considerably, although the legal and constitutional requirements apply consistently across the country.

While all of this may seem mundane, and much of it is, discovery will provide our first opportunity to see how this case will proceed. Is DOJ ready, as I suspect they are, to promptly turn over discovery to Trump’s lawyers in order to avoid any unnecessary delay? Will Trump’s lawyers move expeditiously as the rules suggest they must, or will they try to use the process to inject delays into the proceedings? And perhaps most importantly, will Judge Aileen Cannon hold the lawyers’ feet to the fire to keep things moving? Discovery will take some time in this case, especially the classified discovery. But we are talking about weeks and months, not years, so long as Trump is not permitted to play his usual delay game. The case prosecutors brought is not particularly complicated, although the defendant is. There is no reason, given what we see now, that this case can’t be tried before the 2024 election. Whether that happens will in large part be up to the judges involved in the matter.

We’re in this together,

Joyce