Monday, April 1,2013
I write today to provide additional context regarding when the prosecution must turn over Brady material to the defense in federal court. This article supplements The Prosecution did not violate the Brady rule in Zimmerman case.
Discovery in federal criminal cases is controlled by the Jencks Act (18 USC 3100 et. seq.), which was passed by Congress in the early 1930s in order to protect the lives and safety of prosecution witnesses in cases against members of criminal organizations (i.e., mob prosecutions). Pursuant to the Jencks Act, federal prosecutors do not have to disclose the identity of a witness to the defense until the witness takes the stand. They do not have to disclose witness statements until after the witness testifies on direct examination. To prevent recessing a trial after the direct examination of each witness to allow defense counsel an opportunity to read the statements before commencing cross examination, federal prosecutors in most districts provide a list of their witnesses and all of their statements and reports late Friday afternoon before the trial starts on the following Monday.
The only discovery that a defendant has a right to obtain before the Jencks material is delivered on Friday afternoon, is his statements, search warrants, affidavits for search warrants, and an inventory of all of his property seized by federal agents executing those searches.
The Brady rule applies in federal criminal cases just as it does in state criminal cases.
As I stated in my Saturday post, regardless of when the defense requests Brady material in a state case, there is no violation of the Brady rule so long as the defense receives the defendant’s Brady material before the trial starts. The same is true in federal court.
I hope this brief description of discovery practices in federal court that do not violate the Brady rule sheds additional light on the defendant’s frivolous claim that Bernie de la Rionda violated the Brady rule by waiting until the night before a pretrial hearing to inform the defense that no hospital records supported Dee Dee’s claim that she missed the funeral and wake because she was in the hospital.
If I were the judge handling this case, I would enter an order dismissing the two defense motions because they are frivolous and I would assess terms against O’Mara for wasting the court’s time.
I had another reason for mentioning the Jencks Act in this post. Since I am concerned about protecting Dee Dee from willful, intentional and malicious doxing and character assassination by people who pride themselves in breitbarting those who seek justice for Trayvon, I think Bernie de la Rionda might want to consider seeking the court’s permission to wait until the trial starts before it discloses information that identifies Dee Dee and any other witness for whom there are reasonable grounds to believe they may be subjected to the same intimidating criminal acts.