Overcoming obstacles to discovery and Investigation in federal court

1. Overcoming obstacles to discovery and Investigation in federal court Peter Offenbecher

3. TRUTH JUSTICE THE AMERICAN WAY

4. WHO WE THINK WE ARE

5. WHAT WE ALWAYS DO

6. WHO WE REALLY ARE

7. THE DECK IS STACKED AGAINST US

8. SHARING STUFF

9. SHARING STUFF FPD BRIEFBANK CALL ME

10. 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

13. WHAT IS OUR ULTIMATE GOAL? WIN THE TRIAL!

14. ACQUITTAL!

15. LESSER INCLUDED

16. HUNG JURY

17. DISMISSAL / SMOKING DEAL Evidence to persuade the government to dismiss the case or offer a smoking deal that works for the client because: • 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

19. DISCOVERY AND INVESTIGATION: MAKING A RECORD FOR APPEAL OR HABEAS • Make the government commit a serious error • Make the court commit a serious error

20. DISCOVERY AND INVESTIGATION: What are we trying to accomplish? 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

21. BIGGEST PROBLEM FINDING EVIDENCE IN FEDERAL COURT?

22. THE RULES ARE NOT FAIR

23. No open file discovery

24. NO WITNESS INTERVIEWS

25. NO RECORDING OF WITNESS INTERVIEWS

26. Federal Rule of Criminal Procedure 16 Specific items Items material to preparing the defense

27. RULE 16: SPECIFIC ITEMS • Reports of examinations and tests • Expert witnesses • 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

28. FAVORITE WEAPON IN RULE 16

29. MATERIAL TO PREPARING THE DEFENSE RULE 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

30. MATERIAL TO PREPARING THE DEFENSE RULE 16 (a)(1)(E)(i)

32. “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

33. “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)

34. “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)

35. “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)

37. Judge Alfred Goodwin 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)

38. “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)

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

41. “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)

42. 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)

43. Lack of knowledge or due diligence is no excuse for government’s failure to complyUnited States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)

44. CHIEF JUDGE KOZINSKI

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

46. 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)

47. 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).

48. OTHER WEAPONS IN THE ARSENAL

49. Brady v. MarylandGiglio v. United States

50. 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.