Obtaining documents is important

Documents are crucial. Not only may they contain the foundation of the prosecution case, but they may lead to impeaching evidence and may identify prosecution and criminal defense witnesses. Discovery rules generally entitle the criminal defense to documents that:

• Have been seized from the defendant.
• The government intends to introduce at trial.
• Are material to the defense.

The prosecution’s obligation applies to all documents within its possession or control. This covers more than just what is found in the prosecutor’s files. It obligates the prosecutor to:

• Search for relevant documents possessed by other government agencies.
• Obtain from private parties those documents which the prosecution has a legal right to obtain upon demand.

The defense bears the burden of establishing the requested documents’ materiality under that provision. The definition of “materiality” under the discovery rules includes incriminating evidence.

Dealing with voluminous documents

In document-intensive cases, many prosecutors will provide access to all the documents they have, but this creates the needle-in-the-haystack quandary of finding the useful among the voluminous. There are several solutions:

• Your defense lawyer can request that the prosecutor designate which documents it will use. Some courts will order the prosecution to designate well in advance of trial those documents it intends to use or to provide a table of contents or description of classes of documents so your attorney knows where to look for the more helpful documents.
• Your defense lawyer can request access to scanned electronic files. Prosecutors often will image documents and present them electronically at trial. The electronic images are not the original documents, and your attorney can argue to the prosecutor and the court that you should have access to the scanned electronic files sufficiently in advance of trial to decide whether to contest their authenticity and admissibility.
• Your defense lawyer can request originals from which a summary was prepared. Prosecutors frequently offer summaries of voluminous documents at trial. The rule requires the proponent of a summary to make the originals from which the summary was prepared “available for examination or copying, or both, by other parties at reasonable time and place.” Some courts have indicated a preference for a hearing outside the jury’s presence to determine the admissibility of such summaries.

Remedies for criminal discovery violations

The remedy for the prosecution’s discovery violation depends principally on the harm it causes. When detected before trial, an order to compel production of the evidence generally suffices. If the violation comes to light mid- or post-trial, a mistrial may be justified if your defense attorney can prove that the use of the undisclosed evidence unfairly surprised you and interfered with your ability to fashion an intelligent defense strategy to respond to the evidence.

You are entitled to certain expert reports

You are entitled upon demand to reports of:

• Physical and mental examinations.
• Scientific tests and reports.
• Expert reports prepared in connection with the case.

Testimony from law enforcement officers regarding criminal modus operandi (e.g., the rules and structure of the drug trade, the meaning of code words, the structure of organized crime, the value of the drugs at issue and the inconsistency of possessing such an amount with a claim of personal use) falls within the expert testimony rules, and any reports are discoverable.

Summaries of expert qualifications and opinion

Some discovery rules compel the prosecution to provide a report or summary of the expert’s qualifications and opinion and the bases and reasons for the opinion. This avoids circumvention of the discovery rules by calling an expert who never prepared a written report.

Underlying data for expert’s opinion

Your criminal defense attorney may request the underlying data, notes and materials used to create the report or arrive at the opinion. There are two grounds for such a request. First, this information is needed so that you can have your own expert conduct tests and arrive at an independent opinion. Second, the evidentiary rules mandate disclosure of the facts and data underlying an expert’s opinion, on either direct examination or dross-examination. Disclosure mid-trial not only poses the danger of unfair surprise to the opponent, but it might also necessitate delaying the trial for full disclosure of extensive materials and perhaps re-testing.