OVERCOMING OBSTACLES TO DISCOVERY AND INVESTIGATION

IN FEDERAL COURT

Peter Offenbecher

TRUTHJUSTICE

THE AMERICAN WAY

WHO WE THINK WE ARE

WHAT WE ALWAYS DO

WHO WE REALLY ARE

THE DECK IS STACKED AGAINST US

SHARING STUFF

SHARING STUFF

FPD BRIEFBANK

CALL ME

DISCOVERY AND INVESTIGATION: OVERVIEW

RULE 16(a)(1)(E)(i)

BRADY AND GIGLIO TIPS

JENCKS DELAY

NEEDLE IN A HAYSTACK PLOY

USING RPCS

USING DOJ RULES

RULE 17(c) SUBPOENA

WHAT IS OUR ULTIMATE GOAL?

WIN THE TRIAL!

ACQUITTAL!

LESSER INCLUDED

HUNG JURY

DISMISSAL / SMOKING DEAL

The merits of your defense

The government is afraid of getting caught in some form of misconduct either: on their part or the part of the law enforcement agency

They don’t want to work as hard as you are going to make them work

Evidence to persuade the government to dismiss the case or offer

a smoking deal that works for the client because:

DISCOVERY AND INVESTIGATION:

Make the government commit a serious error

Make the court commit a serious error

MAKING A RECORD FOR APPEAL OR HABEAS

DISCOVERY AND INVESTIGATION:

Finding admissible evidence to present at trial:

To support client’s defense: That can be used to attack the credibility of the government’s case

What are we trying to accomplish?

BIGGEST PROBLEM FINDING EVIDENCE IN FEDERAL COURT?

THE RULES

ARE NOT FAIR

NO OPEN FILE DISCOVERY

NO WITNESS INTERVIEWS

NO RECORDING OF WITNESS INTERVIEWS

Federal Rule of Criminal Procedure 16

Specific items Items material to

preparing the defense

RULE 16: SPECIFIC ITEMS

Defendant’s criminal history

Defendant’s statements Documents and objects:

Government intends to use in case in chief

Items obtained from/or belong to defendant

Reports of examinations and tests

Expert witnesses

FAVORITE WEAPON IN RULE 16

MATERIAL TO PREPARING THE DEFENSERULE 16 (a)(1)(E)(i)

The government must permit defendant to inspect and copy if within government’s possession, custody or

control

ANY ITEM THAT IS MATERIAL

TO PREPARING THE DEFENSE

MATERIAL TO PREPARING THE DEFENSE

RULE 16 (a)(1)(E)(i)

“Rule 16 is intended to provide a criminal defendant ‘the widest possible opportunity to inspect and receive such materials in

the possession of the Government as may aid him in

presenting his side of the case.’”

United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)D.C. District Judge Paul Friedman

“There is no requirement in Rule 16(a)(1)(E)(i) that the material be exculpatory.”

United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)

“It is not limited to evidence that is favorable or helpful to the defense and does not immunize inculpatory

evidence from disclosure.”United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)

“Inculpatory evidence, after all, is just as likely to assist in ‘the preparation of the defendant’s

defense’ as exculpatory evidence....”

“[I]t is just as important to the preparation of a defense to know its potential pitfalls as to

know its strengths.”

United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)

Rule 16(a)(1)(E)(i) permits discovery of information

“relevant to the development of a possible

defense.”

United States v. Muniz-Jaquez, 718 F.3d 1180, 1183-84 (9th Cir. 2013)

Judge Alfred Goodwin

“Materiality” under Rule 16(a)(1)(E)(i) is “broader than

Brady…because [i]nformation that is not exculpatory or impeaching may still be relevant to developing a

possible defense.” United States v. Muniz-Jaquez, 718 F.3d 1180, 1183-84 (9th Cir. 2013)

Rule 16(a)(1)(E)(i) “[m]ateriality is a low

threshold” and is satisfied so long as the

information sought could help the

defendant prepare a defense.

CHIEF JUDGE ALEX KOZINSKI

United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)

“It…behooves the government to interpret the disclosure

requirement [of Rule 16(a)(1)(E)(i)] broadly and turn over

whatever evidence it has pertaining to the case.”

United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)

A defendant needn’t 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.United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)

LACK OF KNOWLEDGE OR

DUE DILIGENCE IS NO EXCUSE FOR

GOVERNMENT’S FAILURE TO COMPLY

United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)

CHIEF JUDGE KOZINSKI

WHY RULE 16(a)(1)(E)(i) IS SO GOOD

Defense counsel constitutionally ineffective for failing to conduct

an investigation which would have revealed a meritorious Fourth

Amendment motion to suppress physical evidence and failing to pursue the motion to suppress.

Kimmelman v. Morrison, 477 U.S. 365, 385-86 (1986)

INFORMATION REGARDING MOTIONS TO SUPPRESS EVIDENCE IS

“MATERIAL TO PREPARATION OF THE DEFENSE”

Because defense counsel have a constitutional obligation to investigate and file

these motions to suppress, the information and evidence requested regarding the motion is “material to preparation of the defense.”

Fed. R. Crim. P. 16(a)(1)(E)(i).

OTHER WEAPONS IN THE ARSENAL

Brady v. Maryland

Giglio v. United States

DISAVOW THE STANDARD OF MATERIALITY UNDER BRADY/BAGLEY

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

A ‘reasonable probability’ is a probability sufficient to undermine confidence in the

outcome.

TRIAL COURT STANDARD OF REVIEW

The standard of whether evidence would have

changed the outcome “is only appropriate, and thus

applicable, in the context of appellate review . . . [I]t

obviously cannot be applied by a trial court facing a

pretrial discovery request.” United States v. Sudikoff, 36 F. Supp. 2d 1196 (C.D. Cal.

1999)

Judge Harry Pregerson

The government must always produce any potentially exculpatory

or otherwise favorable evidence without regard to how the

withholding of such evidence might be viewed – with the benefit of

hindsight – as affecting the outcome of the trial.

United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005)

A trial prosecutor’s speculative prediction about the likely materiality of favorable evidence,

however, should not limit the disclosure of such evidence, because it is just too difficult to

analyze before trial whether particular evidence ultimately will prove to be “material” after trial.

Thus, “there is a significant practical difference between the pretrial decision of the prosecutor

and the post-trial decision of the judge.”United States v. Olsen, 704 F.3d 1172, 1183 n.3 (9th Cir. 2013)

The ‘materiality’ standard usually associated with Brady . . . should not be

applied to pretrial discovery of exculpatory materials.

The absence of prejudice to the defendant does not condone

the prosecutor’s suppression of exculpatory evidence.

United States v. Price, 566 F. 3d 900, 911 n.12 (9th Cir. 2009) Judge Stephen

Reinhardt

Rather, the proper test for pretrial disclosure of exculpatory evidence should be an evaluation of whether the evidence is

favorable to the defense, i.e., whether it is evidence that helps bolster the defense case or impeach the prosecutor’s witnesses. . . .

If doubt exists, it should be resolved in favor of the defendant and full disclosure made. o

pretrial discovery of exculpatory materials. . .United States v. Price, 566 F. 3d 900, 911 n.12 (9th Cir. 2009)

UNITED STATES ATTORNEYS MANUAL

ADOPTED BY THE DOJ

The USAM requires prosecutors to disclose information beyond that which is “material” to guilt

as articulated by the U.S. Supreme Court, and prosecutors must disclose exculpatory or

impeachment information

. . . . regardless of whether the prosecutor believes such information will make the difference between

conviction and acquittal of the defendant for a charged crime.

U. S. Attorneys Manual § 9-5.001.

FIRST ASK NICELY WHAT YOU WANT

MAKE THE PROSECUTOR ADOPT THE TRIAL COURT STANDARD OF REVIEW

Send them a letter asking them to agree that this is the standard.Then file a motion asking the

judge to set that standard for the prosecutor.

Practical Order of Events1. Letter – specific and general2. Meeting – Local Rule 16 requires a meet

and confer3. Follow-up letter4. Motion for order compelling discovery5. Request a hearing on the motion6. Oral argument – present evidence – call

witnesses

United States v. Phair and Louie

No. CR 12-16 RAJ

Judge Richard A. Jones

INFORMATION, NOT JUST STUFFUnited States v. Kohring, 637 F.3d 895, 900 (9th Cir. 2011)

JENCKS DELAYSThe prosecutor promised to provide Jencks

Act statements “at a reasonable time before trial.” The Court concluded that

“this statement is, in essence a waiver by the government of its right to withhold any statements covered by the Jencks Act until

after the relevant witness testifies on direct examination.”

United States v. Hikiau, Inc., 2:07-CR-00792-DAKPMW, 2008 WL 803053 (D. Utah Mar. 21, 2008)

Affirming trial court order directing the disclosure of

the government’s final witness list one year prior

to trial

THE COURT’S INHERENT POWER TO CONTROL ITS CALENDAR

United States v. W.R. Grace, 526 F.3d 499, 508-12 (9th Cir. 2008)(en banc)

GET AN EVIDENTIARY HEARING ON ANYTHING WHERE YOU CAN CALL THE

AGENTS TO TESTIFY

Get the Jencks (Rule 26.2 (g)) [preliminary hearing, sentencing

hearing, revocation hearing, detention hearing, suppression hearing]

GET THE AGENTS TESTIFYING UNDER OATH

Because you know what’s going to happen

Get the agents and witnesses talking to the

AUSAs, so that NEW BRADY AND

RULE 16 MATERIAL will be

generated

USE THE RULES OF

PROFESSONAL

CONDUCT

28 U.S.C. Section 530B(a) (also known as the “Citizen’s Protection Act of 1998”) (“An attorney for the

Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in

each State where such attorney engages in that attorney's duties, to the same extent and in the same

manner as other attorneys in that State.”);

28 C.F.R. § 77.3 (“In all criminal investigations and prosecutions . . . attorneys for the government shall

conform their conduct and activities to the state rules and laws, and federal local court rules.”)

RPC 3.8(d)The prosecutor in a criminal case shall . . . (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.See ABA Formal Op. 09-454, at (July 8, 2009))

NEEDLE IN A HAYSTACK DISCOVERY PLOY

Judge Marsha J. Pechman

United States v. SilvaNo. CR12-047 MJP

CRIMINAL RULE 17(c) AND CIVIL RULE 45

Practice pointers•Affirmative duty to search possible sources of exculpatory information

•Government’s witness preparation material•Within its possession custody or control•Jencks request after the direct examination of witness

•Request for preservation of notes

HENTHORN

Review of the personnel files of any government witness to

determine whether such files contain any information

tending to cast doubt on that witness’s credibility.

United States v. Henthorn, 931 F.2d 29, 30-31 (9th Cir. 1991).

United States v. Jennings, 960 F.2d 1488, 1491-92 (9th Cir. 1992).