This document provides guidance on filing pretrial motions to obtain discovery materials including subpoenas, witness lists, rough notes, manuals, and information about surveillance programs. It discusses showing relevance and need to get subpoenas and pretrial production of documents. It also explains that while the prosecution is not required to provide witness lists under Rule 16, courts have the authority to order disclosure. The document offers tips on preserving rough notes and protecting defense investigator reports. It provides citations to relevant case law and examples of motions and briefs filed on these issues.
Kermit Smith, Jr. v. Gary Dixon, Warden, Central Prison, Raleigh, North Carolina, Kermit Smith, Jr. v. Gary Dixon, Warden, Central Prison, Raleigh, North Carolina, 14 F.3d 956, 4th Cir. (1994)
Atty. Oscar L. Embido, Regional Director, National Bureau of Investigation, Western Visa Yas, Regional Office Nbi-Wevro), For San Pedro, Iloilo City, Complainant, Vs - Atty. Salvador N. Pe, JR.
This document provides guidance on filing pretrial motions to obtain discovery materials including subpoenas, witness lists, rough notes, manuals, and information about surveillance programs. It discusses showing relevance and need to get subpoenas and pretrial production of documents. It also explains that while the prosecution is not required to provide witness lists under Rule 16, courts have the authority to order disclosure. The document offers tips on preserving rough notes and protecting defense investigator reports. It provides citations to relevant case law and examples of motions and briefs filed on these issues.
This document provides guidance on filing pretrial motions to obtain discovery materials including subpoenas, witness lists, rough notes, manuals, and information about surveillance programs. It discusses showing relevance and need to get subpoenas and pretrial production of documents. It also explains that while the prosecution is not required to provide witness lists under Rule 16, courts have the authority to order disclosure. The document offers tips on preserving rough notes and protecting defense investigator reports. It provides citations to relevant case law and examples of motions and briefs filed on these issues.
This document provides guidance on filing pretrial motions to obtain discovery materials including subpoenas, witness lists, rough notes, manuals, and information about surveillance programs. It discusses showing relevance and need to get subpoenas and pretrial production of documents. It also explains that while the prosecution is not required to provide witness lists under Rule 16, courts have the authority to order disclosure. The document offers tips on preserving rough notes and protecting defense investigator reports. It provides citations to relevant case law and examples of motions and briefs filed on these issues.
Jay McEntire, Assistant Federal Defender, Federal Defenders of Eastern Washington & Idaho Spokane, Washington Pretrial Motions: Stuff to Know to Get the Discovery You Need John B. McEntire, Trial Attorney Federal Defenders of Eastern Washington & Idaho Rule 17 - Subpoenas What: An unbelievably useful way to get potentially exculpatory information if you can show 1) relevance, 2) admissibility, and 3) specificity. Leading Case U.S. v. Nixon, 418 U.S. 683, 700 (1974) 2d Circuit United States v. Tucker, 249 F.R.D. 58, 62 (S.D.N.Y 2008) 9th Circuit United States v. Reed, 726 F.2d 570, 577 (9th Cir. 1984)
What Else: A chance to tell your story to the judge without government interference. How: Make Rule 17 requests ex parte. All you need is a showing of the need for confidentiality. Leading Case U.S. v. Tomison, 969 F. Supp. 587 (E.D. Cal. 1997) 1st Circuit U.S. v. Kravetz, 706 F.3d 47 (1st Cir. 2013) 2d Circuit U.S. v. Florack, 838 F. Supp. 77 (W.D.N.Y. 1993) 9th Circuit U.S. v. Martinov, 2012 U.S. Dist. LEXIS 129432 (N.D. Cal., Sep. 11, 2012) 10th Circuit U.S. v. Daniels, 95 F. Supp. 2d 1160 (D. Kan. 2000)
How Else: Ask for pretrial production, which requires you to show that 1) you tried to get the stuff, 2) you need the stuff, and 3) it is a legit request. Witness Lists What: No authority under Rule 16 to obtain the United States witness list. But there are still ways to obtain this information. How: Courts can require the United States to disclose witness lists in advance based on their inherent authority to ensure the proper and orderly administration of criminal justice. 9th Circuit U.S. v. Harris, 543 F.2d 1247 (9th Cir. 1976) 3d Circuit U.S. v. Higgs, 713 F.2d 39, 44 n.6 (3d Cir. 1983) 4th Circuit U.S. v. Fletcher, 74 F.3d 49, 54 (4th Cir. 1996) 7th Circuit U.S. v. Napue, 834 F.2d 1311 (7th Cir. 1987) 1 | P a g e
8th Circuit U.S. v. DeCoteau, 186 F.3d 1008, 1009 n.2 (8th Cir. 1999) 9th Circuit U.S. v. Grace, 526 F.3d 499, 513 (9th Cir. 2008)
Rough Notes What: Rough notes are hugely helpful. Unfortunately, Rule 16(a)(2) prohibits the disclosure of these documents, and such notes rarely constitute statements under Jencks. But there are other ways to obtain rough notes. How: An agents rough notes may be discoverable under Brady if the defendant shows that the notes are exculpatory and material. Leading Case Giglio v. U.S., 405 U.S. 150 (1972) (impeachment evidence falls under Brady when the reliability of a given witness may be determinative of a defendants guilt or innocence) 9th Circuit U.S. v. Pisello, 877 F.2d 762, 768 (9th Cir. 1989) 10th Circuit U.S. v. Sullivan, 919 F.2d 1403 (10th Cir. 1990) At a minimum, move the Court (or ask the United States) to preserve any and all rough notes. Leading Case Giglio v. U.S., 405 U.S. 150 (1972) (impeachment evidence falls under Brady when the reliability of a given witness may be determinative of a defendants guilt or innocence) 6th Circuit U.S. v. Javidan, 2011 U.S. Dist. LEXIS 148349 (S.D. Mich, Dec. 27, 2011) 9th Circuit U.S. v. Pisello, 877 F.2d 762, 768 (9th Cir. 1989) 10th Circuit U.S. v. Sullivan, 919 F.2d 1403 (10th Cir. 1990)
U.S. v. Lujan, 530 F. Supp.2d 1224 (D.N.M. 2008) (lengthy discussion on this topic)
Then you can request an in camera hearing for the court do determine whether the rough note are Jencks, Giglio, or should otherwise be disclosed. Protecting Investigators (and their Notes) From Reciprocal Discovery What: In open file cases, the United States will frequently demand that all reports generated from defense investigators be disclosed. How: There are a few simple ways to help insulate reports from disclosure. 1. Do not generate reports. 2 | P a g e
2. At the beginning of each report direct your investigator to include the following language: here are my thoughts and impressions from the interview with. 3. Avoid using full direct quotes. Work-product claims are taken very seriously, especially in criminal proceedings. See U.S. v. Nobles, 422 U.S. 225, 238 (1975). Careful: Work-product doctrine is a qualified privilege that is waived if, for example, when an investigator is presented as a witness. Manuals What: Another important and often overlooked discovery area. How: Rule 16(a)(1)(E) should be all you need. - These manuals are in the United States custody and material to preparing a defense. Leading Case Florida v. Harris, 133 S. Ct. 1050 (noting that the best measure of a dogs reliability are in the records from the dog in controlled testing environments). 9th Circuit U.S. v. Cedano-Arellano, 332 F.3d 568 (9th Cir. 2003) (disclosing materials regarding a drug dogs qualifications is mandatory)
DEAs SOD Program, Hemisphere, and PRISM Surveillance Program What: Some helpful citations to briefs and court orders on these topics. 1. U.S. v. Fortunato Rodelo Lara, CR-12-0030-EMC (N.D. California) ECF No. 226 Motion to Compel Discovery ECF No. 257 Amici Brief by ACLU ECF No. 267 USAs Opposition to Motion to Compel ECF No. 278 Reply Supporting Motion to Compel 2. Klayman et. al. v. Obama et. al, CV-13-0851-RJL (D. Columbia)
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Good Stuff What: A few quotes to both give you the ammo you need during discovery battles and let you know that there are still judges out there who have your back. On Rule 16: A defendant neednt spell out his theory of the case in order to obtain discovery. Nor is the government entitled to know in advance specifically what the defense is going to be. The relevant subjection of Rule 16 is written in categorical terms: upon defendants request, the government must disclose any documents other objects within its possession, custody or control that are material to preparing the defense. . . . . It thus behooves the government to interpret the disclosure requirement broadly and turn over whatever evidence it has pertaining to the case. U.S. v. Hernandez-Meza, No. 12-50220 (9th Cir. June 21, 2013) On Rule 16 Materiality Materiality is a low threshold; it is satisfied so long as the information would have helped the defendant prepare a defense. Information is material even if it simply causes a defendant to completely abandon a planned dense and take an entirely different path. U.S. v. Hernandez-Meza, No. 12-50220 (9th Cir. June 21, 2013) See also U.S. v. Muniz-Jacquez, No. 12-50056 (9th Cir. June 10, 2013) (noting that materiality standard is low and can include evidence that affects trial strategy and could cause a defendant to seek a plea agreement instead of proceeding to trial). On Hide-and-Seek A rule declaring prosecutor may hide, defendant must seek, is not tenable in a system constitutionally bound to accord defendants due process. Douglas v. Workman, 560 F.3d 1156, 1193 (10th Cir. 2009).
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On Exercising Your Fourth Amendment Rights Prosecutorial conduct that would not have occurred but for hostility or a punitive animus toward the defendant because he has exercised specific legal rights violates due process in the pretrial setting. U.S. v. Gallegos-Curiel, 681 F.2d 1164 (9th Cir. 1982) On Brady Violations There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it. - Judge Alex Kozinski United States v. Olsen, No. 10-36063 (9th Cir. Dec. 10, 2013). Read the entire dissent by Judge Kozinski. It is some of the most powerful Brady language youll ever read.
Kermit Smith, Jr. v. Gary Dixon, Warden, Central Prison, Raleigh, North Carolina, Kermit Smith, Jr. v. Gary Dixon, Warden, Central Prison, Raleigh, North Carolina, 14 F.3d 956, 4th Cir. (1994)
Atty. Oscar L. Embido, Regional Director, National Bureau of Investigation, Western Visa Yas, Regional Office Nbi-Wevro), For San Pedro, Iloilo City, Complainant, Vs - Atty. Salvador N. Pe, JR.