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Federal court criminal charges white collar case

Chicago, IL |

wondering if the following comment I heard someone make is somewhat factually accurate. if a defendant is charged in federal court by an information are the discovery rights more limited to the defense's counsel than if the defendant was charged by an indictment?

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Attorney answers 11


No that is not true.


That is false.


Federal Rules of Criminal Procedure apply the same way.


No, as the other attorneys have said, that isn't true. Rule 16 will still apply to all discovery issues, as will common law rules like access to Brady information.

But I think you may have misheard the comment. In general, defendants have a right to indictment by a grand jury. This means that, unless there are very unique circumstances, a defendant cannot be charged in federal court simply by the filing of an information -- without his or her consent. In other words, if someone has been, or is about to be, charged by way of information, that charging process was likely done as part of a plea agreement between the government and the defendant. It is certainly true, in that case, that the defendant may have agreed to not require the government to produce the same amount of discovery as might otherwise be necessary. So, in the end, the "discovery rights" are the same, but the practical impact is much different.

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No. Same discovery rules.

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You are not correct. This forum is not created to take the place of the attorney representing the case for a defendant.


The rules are the same but sometimes the US Attorneys provide "early discovery" in exchange for waiver of the preliminary hearing.


While the discovery rules are the same, some AUSAs use the information process when the parties have already negotiated and there is a plea agreement already in place. In that circumstance, filing a discovery request is somewhat academic.

The response I have provided is general in nature, and does not create an attorney-client relationship. My practice is based in Rhode Island, and the law and practice in other states or jurisdictions may be different.


No, that is not legally accurate.

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Maybe the person was indicating that at trial, after a witness testifies, his/her grand jury testimony (leading to the Indictment) (but not before). With a preliminary hearing, the testimony is in your hands right away. Of course, that is the opposite of what you wrote but I'm trying to give credence to the person giving you the information - Kind of a long shot answer but it was fun to try and figure out the puzzle.


Not legally, but practically. Federal Rule of Criminal Procedure 16 prescribes the obligations of the parties in a criminal case regarding the discovery and inspection of evidence, regardless of whether the prosecution is initiated by an indictment or information. However, a felony prosecution may be initiated by an information only when the defendant consents: the defendant must waive his or her right to have a grand jury determine whether probable cause exists to indict. Therefore, a criminal prosecution proceeds by information usually after a plea agreement is reached between the defendant and the Government, but before the Government presents the case to a grand jury for indictment. In most of these cases, the parties reach an informal discovery agreement during the plea negotiation process, which may be broader or narrower that the requirements of Fed. R. Crim. P. 16.

Joshua Sabert Lowther, Esq.

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