September 25, 2019
By Peter F. Vaira, for the September 25, 2019 edition of The Legal Intelligencer newspaper This is the first of a series on federal criminal discovery. This is a primer, not an exhaustive work, meant to give new practitioners to federal criminal practice an outline on the procedure. Criminal discovery still lags far behind the discovery available to both parties in a civil case. Many distinguished attorneys including Judge Billings Learned Hand, have been reluctant to provide a criminal defendant with much discovery. They believe that once the accused and his lawyer become aware of the prosecutor’s evidence, they will conjure a defense of perjured testimony and manufactured evidence. It is ironic that there is much more perjured testimony in everyday civil depositions than in criminal cases. Today’s column will discuss Rule 16, and Rule 26.2, of the Federal Rules of Criminal Procedure, and the required production of material by the prosecutor required by Brady v. Maryland, 373 U.S. 83 (1963).