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Is the government required to provide full disclosure or discovery during a federal case and how long before trial?

Miami, FL |

im confused on what must be disclosed pre trial in a federal case. i understand a witness list per say would not have to be disclosed prior to trial based on the dangers that may present to them but are the other reports and evidence required to be disclosed before trial? this seems like an ambush on the governments side if not. if it is required to be disclosed is there a number of day they are required to disclose this information before the trial?

Attorney Answers 4


  1. No, in federal cases there are really no rights to discovery, unlike in state court. It really is like a trial by ambush. If you have federal criminal charges pending then you really need an attorney. If you can't afford a private attorney then you can apply for the public defender. Time is of the essence in federal criminal cases so you don't want to delay because that will impact what actions your attorney will be able to do.

    This is not to be considered legal advice nor does an attorney-client relationship exist.


  2. Federal discovery is very limited if you go by the book (Fed. Rules of Crim. Pro. 16, Jencks Act, etc). In my experience, federal prosecutors are often very forthcoming and generous with discovery far beyond what any court could order. But . . . they don't have to be and sometimes they are not. I have had massive amounts of discovery (like crates and crates of important material) delivered to me in the middle of a jury trial. Unusual, but it can happen. I have also been swamped with pre-trial discovery so massive that just wading through iit all is almost impossible.


  3. Under the federal Rules, the prosecutor's pre-trial discovery obligations are extremely limited. Most judges, however, will attempt to "encourage" prosecutors to provide documentary evidence, FBI and DEA reports, telephone and financial records, etc., well before trial, and the government usually agrees. This happens because the court must give defense counsel an reasonable opportunity to review and investigate this evidence and look for evidence or witnesses who may refute the government's assertions. If the government does not produce this evidence until trial, that can mean that trial is recessed to give the defense an opportunity to adequately prepare. Courts and the government do not want trials to start and stop because of discovery problems, so an accomodation is usually reached. However, a stubborn prosecutor can severely limit defense access to evidence, if he or she is willing to take on the court.
    An experienced federal criminal defense lawyer can often employ motion practice to force such a prosecutor to reveal material information about the case.

    Please remember that Q & A forums such as this one are intended to provide general information, not specific legal advice upon which you should rely in making decisions about your case. Before making any such decisions regarding your case, please consult a lawyer .


  4. The short answer is yes, the government must turn over all the evidence, incriminating as well as exonerating, that they have on you. However, the trick is timing. Usually the court will issue a standing discovery order and the government will give you all documentation immediately; witness list is a different story. While the government will give it before trial, it can literally give it five minutes before. It sounds like an ambush, and many people have characterized it that way, but the fact that you get the information pre-trial, even if it is five minutes before, passes constitutional muster.

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