 Welcome to Introducing the Federal Courts, the Federal Judicial Center's orientation series for court employees. This is program two of the series, How Criminal Cases Move Through the District Courts. It's designed to help you become familiar with basic procedures involved in processing criminal cases in the federal district courts. Part two, Pre-Trial Proceedings. In this segment, we'll discuss what happens in a criminal case between the time the defendant first appears in court and when the case goes to trial. In fact, most criminal cases, about nine out of 10, never get to trial because they get disposed of in this so-called pre-trial period. A number of important events often call pre-trial matters occur during this time. The federal rules of criminal procedure and our hypothetical drug case will again provide the context for our discussion. Let's review what's happened in Angela Smith's case thus far. In our first segment, defendant Smith was arrested for selling some cocaine to Agent Brown of the Drug Enforcement Administration. Another suspect, Michael Jones, drove away from the crime scene. While Smith was being processed by the Marshals, Agent Brown discussed the case with Assistant United States Attorney Rhonda Johnson. Johnson decided to file formal criminal charges against Smith. With Agent Brown's assistance, Johnson then drafted a complaint and affidavit against Angela Smith. The complaint and affidavit, required by federal rules of criminal procedure three and four, will be filed at Smith's initial appearance before a magistrate. Meanwhile, Smith was interviewed by her attorney, federal public defender Jack Lee, in the cell block. The stage is now set for Angela Smith's initial appearance before the magistrate. The defendant's initial appearance is governed by rule five of the federal rules of criminal procedure. How's the situations? Great. We're talking about here, so now we can proceed. I'll arise in the presence of the court. Of course, when the clerk uses the term the court, she is referring to the magistrate presiding over the case. Ordinarily, when we say the court will do something, for example, the court will issue an order, we are also referring to a judge or a magistrate. Good morning. Will counsel please identify themselves for the record? Good morning, Your Honor. Assistant United States Attorney, Rhonda Johnson for the United States. Jack Lee on behalf of Ms. Smith, Your Honor. Good morning. State your name for the record, please, ma'am. Angela Smith. Would the deputy clerk please administer the oath to Ms. Smith? Do you solemnly swear to tell the truth, the whole truth and nothing but the truth to help you God? I do. Ms. Smith, let me advise you that you are not required to make any statement in connection with this matter. Even if you've made a statement, you need not say anything more to anyone about this case, other than to your attorney, of course. Now, if you start to make a statement to anyone, you have the right to stop at any time. Any statement made by you can be used against you. Do you understand those rights, ma'am? Yes, Your Honor. Have you had an opportunity to speak with Mr. Lee about this case? Yes. Now, Ms. Smith, as you know, I've reviewed your financial affidavit and I've appointed Mr. Lee to be your counsel to represent you under the Criminal Justice Act. But I want you to know that you have a right to employ counsel of your own choosing if you can afford it. I understand. I'm gonna stick with Mr. Lee. Very well. Ms. Johnson, do you have a matter for the court to consider? Yes, Your Honor. The United States has filed a complaint and affidavit against Ms. Smith on this matter. Now, Ms. Smith, you've been brought before me today because the United States Attorney has charged you with a violation of law to width distribution of cocaine, a control substance in violation of Title 21, Section 841 of the Code. Now, the purpose of this hearing is not to decide your guilt or innocence, but to advise you of your rights and to make some preliminary decisions about bail. Now, I've read the complaint and affidavit filed by the United States in this matter and I find probable cause to believe that Ms. Smith committed the offense of distribution of a control substance, that is, cocaine. Ms. Smith, you have a right to what is called a preliminary hearing in this case, since it is a felony case. Now, at the preliminary hearing, the government must present evidence that there is probable cause to believe that the offense of distribution of cocaine was committed and that you committed it. Mr. Lee, does your client wish a preliminary examination? She does, Your Honor. Very well. We'll pick a date in just a minute. Let's consider the matter of bail first. Now, I've reviewed the pre-trial services agency report and I'd like to hear from the government first. Ms. Johnson, does the United States wish to move for a detention under 18 USC sections 3142D or F? Your Honor, at this time, the government moves for the pre-trial detention of Ms. Smith, pursuant to the Bail Reform Act, 18 USC section 3142F. As the magistrate noted, the final matter to be addressed under Rule 5 is the question whether Smith will be released or detained pending her trial. In complying with this portion of Rule 5, the magistrate must apply the provisions of the Bail Reform Act of 1984, contained in Title 18 of the U.S. Code. The Bail Reform Act requires that every accused person be released without posting bail or meeting special conditions, unless the judicial officer finds that the defendant is likely to flee, endanger the safety of any other person, or endanger the community. A judicial officer can also release the defendant subject to one or more conditions designed to assure the defendant's appearance at trial, the safety of others, and the safety of the community. For example, a magistrate may order the defendant to comply with the following conditions among others if released pre-trial. The defendant may be ordered to remain in the custody of another person, obey restrictions on travel, personal associations, or residence, seek or maintain employment, or enroll in an educational program, avoid contact with alleged victims of the crime and potential government witnesses, or to post bail to be forfeited upon failure to appear in court as required. With respect to posting bail, the Bail Reform Act does not allow a judicial officer to set a defendant's bond so high that the defendant cannot afford to post it. If that occurred, the defendant would be unable to post bond for financial reasons and would have to remain in jail pre-trial. To prevent this, the act states that the court may not impose a financial condition that results in the pre-trial incarceration of the defendant. A defendant who has released pre-trial must comply with all the conditions of release imposed by the court, or be prepared to face serious consequences. Sir, I'm ordering your release pre-trial subject to the conditions I've just gone over with you. Let me further advise you that if you do not appear in this court as required, you will be committing a separate crime for which you may also be sentenced to a period of imprisonment. Yes, sir. And if you violate any condition of your release, a warrant for your arrest may be issued and you may be jailed until your trial, and you may also be prosecuted for contempt of court. Now, be advised that if you commit a crime while released prior to your trial that you... When a defendant is released before trial on conditions, the court executes a bond form and gives a copy to the defendant. You have a copy of such a form in your written materials. If you take a look at it, you'll notice that the form sets forth all pre-trial release conditions imposed on the defendant. And on the back of the form, the consequences of not complying with the conditions of release are also listed for the defendant to read. If the case involves an arrestee who is charged with a serious felony, the magistrate may hold a hearing called a detention hearing. Detention hearings are held in cases involving defendants who are charged with crimes of violence or have a serious record of prior convictions or pose a serious risk of flight or obstructing justice, or, like defendant Smith, face a maximum term of imprisonment of 10 years or more in a drug case. The purpose of the detention hearing is to decide whether any of the pre-trial release conditions we've discussed is reasonably likely to ensure that the defendant will not flee instead of reporting to court and to ensure the defendant won't harm others while out on bond. If, after holding the hearing, the magistrate finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, the magistrate can order the defendant detained without bail pending trial. In other words, the defendant may be detained before trial on three separate grounds. First, if the risk of the defendant's flight is too great, that is, when the magistrate finds that no condition or combination of conditions will reasonably assure the defendant's appearance in court. Second, if the defendant's release pre-trial will pose too great a risk of danger to another person, that is, when the magistrate finds that no condition or combination of conditions will reasonably assure the safety of another person. And third, when the magistrate finds that no condition or combination of conditions will reasonably assure the safety of the community. Note, however, that the government bears a higher burden of proof when it seeks detention on grounds that no condition will reasonably assure the safety of other persons or the community. Such a finding really requires the magistrate to predict the defendant's future behavior, to predict, in other words, that the defendant's behavior may pose a danger to the community if he or she is released. Thus, the magistrate must be convinced by clear and convincing evidence, a rather heavy burden of proof, that the defendant's release will pose such a danger. Let's see what happens in Angela Smith's case. Very well, Mr. Lee. Your Honor, we would ask for a continuance to allow us to prepare for the hearing. Now, does the government take any position on the defendant's request for a continuance of the detention hearing? No, Your Honor. All right, then. On the statute, the detention hearing cannot be continued for more than five days without a showing of good cause. So I will set the hearing date for five days from now if you have no objection, Mr. Lee. Very well. Now, Ms. Smith, I realize that you have no prior record of convictions and looking at your pre-trial services report, I also see that you have very strong ties to the community. But this court must detain you under the Bail Reform Act at least until the date of your detention hearing. And as Mr. Lee can tell you, the offense that you've been charged with carries a maximum sentence of 40 years upon conviction. I've already discussed that with Ms. Smith, Your Honor. That means that there is a statutory presumption that the court must apply at your detention hearing subject to rebuttal by the defense. I must presume that no condition or combination of conditions will reasonably assure your appearance in court and the safety of the community, which of course is a reasonable presumption to make in a serious drug case like this. That's if I also find, of course, that there's probable cause to believe that you committed this offense. At the detention hearing, the government will call one of the agents who worked on the case against Smith to testify that she distributed 540 grams of cocaine. Smith will then have a chance through Attorney Lee to cross-examine the agent and any other government witnesses at the hearing. She also has a right to testify and to present witnesses or evidence on her behalf. For instance, the magistrate just mentioned the presumption under the Bail Reform Act that in drug cases with potential sentences of 10 years or more, there are no conditions of release which will reasonably assure the defendant's appearance for trial or the safety of others and the community. But that presumption can be overcome under the statute. In other words, the defendant can present information at the detention hearing, which rebuts that presumption and puts the ball back in the government's court, so to speak. So, Ms. Smith, I'm sure you can see why Mr. Lee has requested a continuance in order to give him time to prepare for your detention hearing. It's a very important hearing. Now let's set a date for the preliminary examination. Council, how? Let's review what happened to Smith at her initial appearance. First, the magistrate informed Smith of the charge against her and of her right to the assistance of counsel. Since Smith is an indigent defendant, arrangements were made to have a federal public defender represent her under the Criminal Justice Act. Smith was also told that she has a right to remain silent. That is, that she is not required to make any statement and any statement she does make can be used against her. And Smith was informed of her right to a preliminary examination. Finally, Angela Smith was incarcerated pending her detention hearing under the provisions of the Bail Reform Act. What happens next? Let's say that after Smith's initial appearance, Assistant US Attorney Johnson and Agent Brown return to Johnson's office where they draft a complaint and affidavit against Michael Jones. Their purpose in preparing these documents is to obtain an arrest warrant for Jones. Smith was arrested without a warrant because no warrant is required when the agents actually see a person committing a criminal offense and arrest the person at the crime scene. But the situation is different with respect to Jones since he wasn't apprehended during commission of the crime. Now that Agent Brown can identify him as the person who drove the van, however, the government is in a position to seek a warrant for Jones' arrest. Rule four of the federal rule states that if it appears from the complaint or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant has committed it. A warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. Notice that rule four requires that a magistrate sign the arrest warrant. The decision to issue an arrest warrant allowing a law enforcement officer to take a person into custody is a very important one with far reaching consequences for an individual's liberty. The constitution therefore requires that it be made by a neutral official, that is a magistrate, rather than by an interested law enforcement officer like Johnson or Brown. In addition, rule four embodies the constitutional requirement that no warrants shall issue but upon probable cause supported by oath or affirmation. This requirement is found in the fourth amendment to the constitution. The magistrate will therefore sign the arrest warrant for Jones only when satisfied that the facts presented in the complaint against Jones together with the facts in Brown's affidavit in support of the warrant for his arrest established probable cause. That is probable cause to believe that a crime was committed and that Michael Jones committed it. This means that after the complaint in affidavit for Jones have been drafted, Johnson and Brown must present them to the magistrate and ask the magistrate to issue a warrant for Jones's arrest. Notice that Brown chooses to appear before the magistrate in chambers because time is of the essence and Brown knows that magistrates sitting in court have many other matters to handle. The magistrate will examine the affidavit to see that it identifies the particular person to be seized, in this case, Michael Jones. And the particular offense Jones is charged with. If the warrant meets these requirements of rule four and the US constitution and Brown swears that the facts contained in the affidavit and complaint against Jones are true, the magistrate will sign the warrant. In signing the warrant, the magistrate also orders the US Marshal to arrest Jones and bring him forthwith before the nearest available judicial officer. As we'll see, Michael Jones will soon be arrested and his case will be prosecuted together with Angela Smith's case. A copy of the arrest warrant signed by the magistrate in Jones' case, including the affidavit in support of the warrant, is included in your materials. You might wanna read it over during the break. Let's focus now upon the preliminary examination mentioned by the magistrate. The preliminary examination takes the form of a hearing at which witnesses give evidence by testifying. It is required by rule 5.1 of the federal rules of criminal procedure. The defendant is entitled to a preliminary examination when charged with a felony offense which will be tried by a judge of the district court. Federal criminal rule 5.1 requires that a preliminary examination be held within 10 days of the initial appearance if the defendant is detained and within 20 days of the initial appearance if the defendant is released on bond. The purpose of the preliminary examination is to determine whether there is justification for holding the defendant while he or she is in custody or on bail for further court proceedings. The court will continue to hold the defendant if the government proves there is probable cause to believe that a federal crime has been committed and that the defendant did it. Rule 5.1 states that if the government's evidence at the preliminary hearing does not establish a probable cause to believe a crime has been committed and that the defendant committed it, the complaint must be dismissed. In that event, the defendant must also be released. That's because our constitution requires that when a person loses his or her liberty following an arrest, there must be a prompt judicial determination that there is probable cause to believe the person has committed an offense. As a practical matter, preliminary examinations are not held very often. This is because of another player in the process, the grand jury. The grand jury usually decides the probable cause issue before the defendant's preliminary examination is held. The basic purpose of the grand jury is to decide whether there is probable cause to require a defendant to stand trial on the pending charges. If the grand jury decides there is probable cause, it returns an indictment against the defendant. When the grand jury does this prior to the scheduled preliminary hearing date, there is no longer any need to hold the examination since a finding of probable cause has already been made. The case then proceeds directly to arraignment. In our hypothetical case, we'll say that the magistrate found probable cause at Smith's preliminary examination. And for practical purposes, Smith's preliminary examination and detention hearing were combined in one court hearing. Smith therefore remains detained pre-trial. Let's also say that right after Smith's preliminary examination and detention hearing are held, Jones is arrested in the apartment he shares with his roommate, Lawrence Green. Green is not present when Jones is arrested, but he hears about the arrest later from a friend. At the time of the arrest, DEA agents seized two kilograms of cocaine from the apartment, about 10 feet from where Jones was standing. The cocaine had been placed in a large metal cookie tin. However, since the lid was not fully on the tin, one of the agents saw the cocaine while making the arrest. Following his arrest, Jones appeared before a magistrate for an initial appearance similar to Smith's. Jones is represented by attorney Christine Harrison, a former federal public defender now in private practice. At the initial hearing, Jones requests a preliminary examination. But remember, we said that a defendant is not entitled to a preliminary examination if the grand jury returns an indictment before the examination is held. Let's assume that shortly after Jones's arrest, the government presents its evidence against both Smith and Jones to the grand jury. In other words, the government presents its evidence against both defendants to the grand jury at the same time, which is easy to do since the same agents are involved in both cases. The grand jury then returns indictments against both Smith and Jones prior to the date set by the magistrate for Jones's preliminary examination. Since the grand jury has already found probable cause in Jones's case, he is not entitled to a preliminary examination. At this point, you may be asking yourself, what exactly is a grand jury? Why is it required? What is an indictment? And how does the grand jury decide whether or not to return an indictment? These are important questions. Rules six and seven of the federal rules of criminal procedure, govern indictments and proceedings before the grand jury, and we'll discuss them in a moment. But first, you should know that the Fifth Amendment to the Constitution states that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury. Rule seven embodies this constitutional guarantee in the federal system by requiring that any offense carrying a potential penalty in excess of one year be prosecuted by indictment. An offense carrying a potential penalty of more than one year in prison is called a felony. Offences punishable by a year or less in prison are called misdemeanors. An indictment is not required in misdemeanor cases. In misdemeanor cases, the prosecutor ordinarily files an information. An information is a written statement of the essential facts of the charged defense. Unlike an indictment, which must be signed by both the prosecuting attorney and the foreperson of the grand jury, an information is signed only by the prosecutor. A grand jury is a group of citizens whose duty is to determine whether there is probable cause to believe that a defendant has committed a crime and should be brought to trial. The Constitution calls for a grand jury in order to provide protection from hasty, misguided, or oppressive prosecutions. In order to fulfill this function, the Constitution requires a grand jury that is independent of the prosecutor and the court. Thus, while it performs its functions within the judicial branch of the government, the grand jury has a great deal of independence. Nevertheless, as a practical matter, it is the United States attorney who gathers the evidence for presentation to the grand jury, calls and examines witnesses before it and explains the law to it and asks it to return an indictment. Since it is an independent body, however, the grand jury need not grant the prosecutor's request. It may return a no true bill instead of an indictment. In that event, the complaint is dismissed. Rule six requires that grand juries be assembled by the court whenever required by the public interest. The clerk's office is responsible for summoning or calling citizens to serve as grand jurors. Congress has set out specific requirements for their selection to assure that the process is random. That is, to ensure that everyone in the district has an equal chance to be selected. Grand juries serve until discharged by the court, but ordinarily cannot be made to serve for more than 18 months. The grand jury may consist of between 16 and 23 members. The court appoints one of the grand jurors to be four person. The four person is responsible for handling many administrative matters relating to the grand jury's work. The grand jury may return an indictment charging an individual with a crime if at least 12 of its members vote to do so. Traditionally, grand jury proceedings have been conducted secretly. Rule six establishes strict rules governing the disclosure of matters which occur before the grand jury. When the grand jury accuses an individual of committing a crime, it does so by issuing an indictment. An indictment is also called a true bill. A copy of the indictment returned by the grand jury in the Smith and Jones case is included in your written materials. An indictment is a formal written document charging one or more persons with a crime. Rule seven requires that the indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. This ensures that those who stand accused know exactly what charges they must defend themselves against. An indictment may contain allegations that the defendant has committed more than one crime. Each allegation must be listed separately, however. The separate allegations are referred to as separate counts, and each count of the indictment must specify the statute which the defendants are accused of violating. As you can see, even though their cases came into the system at different times, the grand jury has indicted both Smith and Jones in the same indictment, and both defendants have been charged with two criminal offenses, distribution of cocaine, and conspiracy to distribute cocaine in counts one and two of the indictment. This is because Rule 8A of the Rules of Criminal Procedure allows two or more offenses to be charged in the same indictment as long as they are of similar character or are based on the same act or are part of a common scheme or plan. And Rule 8B allows two or more defendants to be charged in the same indictment if they are alleged to have participated in the same act or series of acts. Since both Smith and Jones are alleged to have participated in the sale of cocaine to Agent Brown, they are joined in the same indictment as co-defendants. In addition, in count three of the indictment, Jones has been charged with possession with intent to distribute cocaine. This additional charge is based on the seizure of drugs found near Jones at the time of his arrest. A defendant who has been charged must formally enter a response or plea to the charge. This is done at arraignment. Rule 10 states that arraignment shall be conducted in open court and shall consist of reading the indictment or information to the defendant or stating to the defendant the substance of the charge and calling on the defendant to plead there too. The defendant shall be given a copy of the indictment before being called upon to plead. At the arraignment, the clerk will first place the defendants under oath. The judge will then ask the defendants their names and ages. Then the court will ask the defendants a few questions bearing on their ability to understand the proceedings they are involved in. Now, Mr. Jones, are you now or have you recently been under the care of a physician or a psychiatrist? No, sir. Have you ever been hospitalized or treated anywhere for any form of narcotics addiction? No. Are you presently suffering from any physical problems? No, sir, I'm gonna, I'm gonna all right. All right. And we've already covered, Mr. Smith. Mr. Jones, have you received a copy of the indictment? Yes, sir. Have you had time to consult with your attorney? What do you mean? I'm asking whether you've spoken with Ms. Harrison about the case. Oh, yes, sir, I have. Counsel, would Mr. Jones like the indictment read to him or does he wish to waive a formal reading of the indictment? Mr. Jones will waive a formal reading of the indictment, Your Honor. If Michael Jones wanted the charges read to him, the deputy clerk would read them aloud to Jones in the courtroom. But, like most defendants, Jones has already discussed the case with his attorney and has a good idea what offenses he has been indicted for. So, he waives a formal reading of the indictment. As we know, Jones and Smith have each been charged by indictment with one count of distribution of cocaine and one count of conspiracy to distribute cocaine. Jones has also been charged with one count of possession with intent to distribute cocaine in the third count of the indictment. Very well. How do you wish to plead to the charges against you, Mr. Jones? At this time, Mr. Jones wishes to enter a plea of not guilty to each count of the indictment. Now, I realize, Ms. Smith, that you have been detained pending trial. What's the status of Mr. Jones, Ms. Harrison? Mr. Jones is also detained without bond, Your Honor. Very well. That status will continue. Now, if either council wishes to file a bond review motion, the court will consider it. Now, let's see about setting a date for the hearing on the motions, please. At this point, the magistrate will usually set dates for the filing of motions and the pretrial conference and may even set a trial date. As you can see, if the defendant enters a plea of not guilty, the arraignment is a rather short proceeding. In misdemeanor cases, the arraignment and initial appearance are usually held at the same time. This is because misdemeanors can be prosecuted without a grand jury indictment. In felony cases, sometimes the grand jury returns an indictment against a person before that person has been arrested. When that happens, the government may ask the court to issue a summons rather than an arrest warrant to bring the defendant before the court. Rule four of the federal rules of criminal procedure allows judicial officers to issue a summons rather than a warrant when requested to do so by the government. Like an arrest warrant, a summons must be supported by probable cause. But when a summons issues, the defendant is not arrested and brought before a magistrate by law enforcement officers. Instead, since a summons simply requires the defendant to appear in court at a stated time and place in the future, the defendant appears in court voluntarily on the appointed day. A copy of a judicial summons is included in your materials. Arraignments can be conducted by magistrates or judges. Magistrates often conduct arraignments and may handle arraignments in both felony and misdemeanor cases. However, whenever a defendant intends to enter a plea of guilty at the time of arraignment in a felony case, the arraignment must be conducted by a judge. As we've seen, Smith and Jones entered not guilty pleas at their arraignment, so the magistrate set dates for later proceedings in the case, such as pretrial conferences, motions hearings, and the trial itself. The court's discretion in this area is controlled by a statute passed by Congress called the Speedy Trial Act. Congress, concerned about lengthy delays in getting criminal cases to trial in federal courts, imposed a series of time deadlines upon courts and prosecutors in the Speedy Trial Act. For example, the act requires that a defendant arrested on federal charges be indicted within 30 days of arrest. It also requires that a defendant's trial start no later than 70 days from the date of his or her first court appearance in the district on the charges at issue, or 70 days from the filing of the indictment or information, whichever date comes later. In drafting the Speedy Trial Act, Congress recognized that many events may occur during the pretrial stages of a criminal case that make it impossible to begin the trial within 70 days. The Speedy Trial Act lists these events and provides that the delay resulting from them is not subtracted from the 70-day limit. These events are often referred to as excludables, and the period of delay resulting from these events is called excludable time. The events which result in excludable time include examinations to determine the competency of the defendant to stand trial, the trial of other charges against the defendant, pretrial appeals, the removal of the defendant from another district, the filing of pretrial motions, and reasonable delay caused by jointer of the defendant's case with that of a co-defendant whose 70-day time limit has not yet run. Any delay resulting from these events simply stops the running of the Speedy Trial Clock. Thus, for example, the time that passes between the filing of a pretrial motion and the court's ruling on the motion is normally excluded in computing the 70-day limit. On the other hand, the Speedy Trial Act does provide for penalties as severe as dismissal of the charges against the defendant if the case does not proceed to trial within the required time period. The way to avoid those penalties, of course, is for the court, the prosecutor, and the defense attorney to move the case along without undue delay. Finally, the Speedy Trial Act requires that the trial of certain defendants, including those who are ordered detained prior to trial, be given priority. For example, the trial of a person detained without bond must begin no later than 90 days from the beginning of the detention period. What happens if, through no fault of his own, a detainee like Jones is not tried within that 90-day period? In that instance, he must be released from custody and the court is required to review the conditions of his release. During the period between arraignment and the next scheduled court date, the defense attorney and the prosecutor will engage in what is called discovery. The term discovery refers to the process by which each side in the case finds out, or discovers, some of the evidence which the other side has in its possession. The pretrial discovery process in criminal cases is governed by Rule 16 of the Federal Rules of Criminal Procedure. The discovery process is based on the belief that since the stakes in a criminal case are so high, neither side should be completely surprised by evidence introduced by the other side at trial. On the other hand, since our system is an adversary system, each side is allowed to keep certain pieces of information in its possession confidential. Usually, by the time the discovery process begins, the prosecutor has already learned a significant amount of information about the case. The government's investigation has been proceeding for some time and the grand jury process has been completed. The defense attorney, however, may just be beginning his or her investigation of the case. Let's see how the prosecutor and the defense attorney handle discovery in the Smith case. Hi, Ms. Jensen. Hello, Mr. Lee. You're here for discovery? That's right, United States versus Angela Smith. Have a seat. Thanks. Here's the file. Shall we begin? All right. First, I'll request discovery of any statements made by Ms. Smith, which might be in the government's possession. I'm not aware of any written statements made by your client and the code defendant, Jones, made no statements at all. However, your client made an oral statement to Agent Brown following her arrest, which is substantially as follows. Smith said she never should have listened to Jones, that Agent Brown ought to talk to Jones, and that Jones was driving the van. Smith also said she got the drugs she sold to Agent Brown from Jones. And she was in custody at that time. Did she make those statements in response to questioning by any government agent? No, it was a spontaneous statement to Brown. We'll probably introduce it in our case in chief. I'll have to file a suppression motion, I'm afraid. What about any prior record? Is the government aware of any prior criminal record by my client? The pre-trial services report says she has no priors. What about the FBI rap sheet? Do you have a... Yes, I do. She has no priors that we know of. All right. How about physical evidence? The government has the drugs, the purse, the bag the drugs were kept in, and the marked money. Let me make a request of you all tangible evidence then. The drugs and the bag will be at the DEA lab. I'll draft a letter authorizing you to view the drugs at the lab. They've been analyzed already, so there's no problem. Is there a report of the analysis? I believe the Rule 16 provides for disclosure of any scientific test that may be in the government's possession. I was coming to that. Here's the report. Looks like 540 grams of cocaine, according to the chemist. I'd also like to see the marked money. Uh-huh. Well, I'm not sure you're entitled to see that. I don't think we'll introduce the marked money during our case in chief at trial. Rule 16 only requires disclosure of tangible evidence taken from the defendant, or tangible evidence the government intends to introduce at trial. But I think the rule also calls for disclosure of any tangible objects, which might be material to the defendant's defense at trial, doesn't it? How are these material? Well, I think you'll find out at trial. Well, let me think about it. You may have to file a motion. All right, I guess that's about it then. Actually, since you've requested discovery of documents and tangible evidence in the government's possession, I'll make a reciprocal request under Rule 16B. Does the defense have any tangible evidence which it intends to introduce at trial? I may have some photographs of the area and some diagrams of the area. I'll send them over as soon as they're prepared. Good enough. I'd also like to extend a plea offer to your client at this time. As you can see, the attorneys in a criminal case usually meet informally in order to comply with the discovery requirements of Rule 16. In our hypothetical case, Assistant US Attorney Johnson disclosed the following information to Attorney Lee as required by Rule 16. First, AUSA Johnson disclosed the defendant's statements to law enforcement officers. Second, the assistant disclosed the defendant's prior criminal record. In this case, defendant Smith has no prior record. Third, the prosecutor disclosed for inspection by defense counsel certain physical evidence which the government will use in the case. Fourth, the prosecutor disclosed the results or reports of scientific tests or experiments conducted by the government in the case. After the defendant requests this information and the government discloses it, Rule 16 provides that the government can make a return or reciprocal discovery request of the defendant. In particular, the government is entitled to discovery of any physical evidence and test results or reports in possession of the defendant. The government is also entitled to know ahead of time whether the defendant intends to use certain defenses at trial. For example, an alibi defense contends that the defendant could not have committed the crime because he was at another place when the crime occurred. Rule 16 allows the government to prepare for an alibi defense by asking the defense to disclose whether it is planning such a defense in advance of trial during discovery. Similarly, if the defense intends to rely upon an insanity defense at trial, it must notify the government of this during discovery. The defendant is not ordinarily required to disclose the nature of the defense prior to trial, however. You are also likely to hear the term Brady material come up when the court and council are discussing pretrial discovery. One last question. Are you aware of any Brady material? Nothing comes to mind, but let me look through my file. Johnson and Lee are referring to a Supreme Court case decided in 1963 called Brady versus Maryland. In that case, the court decided that the constitution requires the government to disclose to the defendant upon request any evidence in its possession that is material and favorable to the accused. Such favorable evidence is often referred to as Brady material, and it includes evidence favorable to the defendant on issues of either punishment or guilt. For example, evidence tending to show that someone other than the defendant committed the offense. Perhaps the presence of another person's fingerprint on the murder weapon would be favorable to the defendant on the issue of guilt. So it must be disclosed by the government. And evidence that an accomplice had confessed to being the actual shooter in a murder case would be favorable to the defendant on the issue of punishment, even if the confession named the defendant has an accessory to the crime. So under the Brady doctrine, evidence favorable to the defendant on the issues of guilt or punishment must be revealed to the defense. And the disclosure of favorable evidence must be timely. That is, soon enough for the defense to make use of the information at trial. The prosecutor's duty to disclose Brady material to the defense is required by the constitution. In other words, it is a duty which exists independently of the discovery requirements of rule 16. But the burden is on the defense to request Brady material from the government. For that reason, the defense attorney will ordinarily make a Brady request during a discovery conference with the prosecutor. That's what attorney Lee has just done. I don't see anything that would tend to exculpate your client. All right, if you should learn of anything that might. Sure, if I learn of anything favorable to your client on the issues of guilt or punishment, I'll let you know right away. Great. Most discovery issues are resolved informally by the attorneys involved. But if the prosecutor and the defense attorney disagree about whether an item is discoverable, a judge or magistrate must resolve the issue. Thus, in our hypothetical case, attorney Lee may decide to file a motion with the court, asking it to order the government to let him view the marked DEA money prior to trial. The government might then file a response opposing that request. This takes us to the issue of pretrial motions. A motion is a request by either the government or the defense for a ruling by the court on a particular matter. Federal rule of criminal procedure 47 requires that pretrial motions ordinarily be in writing. Rule 47 also requires that each motion shall state the grounds upon which it is made and shall set forth the relief or order sought. Federal rule of criminal procedure 12 discusses the types of motions which may be filed before trial. It permits the filing of motions relating to the discovery process, defects in the indictment or prosecution of a case, the manner in which the trial will be conducted, and the suppression of evidence. Thus, attorney Lee's discovery motion, asking the court to order the government to let him view the marked DEA money seized from Angela Smith prior to her trial would be filed under rule 12. So would a motion filed by Jones contending that there was a constitutional defect in the grand jury proceedings or that the indictment failed to charge him with a criminal offense. Smith might file a motion under rule 12 requesting that her trial be conducted separately from Jones's trial, and both defendants may file motions under rule 12 seeking to prevent the government from using certain evidence against them at trial. Thus, Jones may contend that evidence against him was obtained as the result of an illegal search of his apartment, or Smith may file a motion alleging that the oral statement the government intends to use against her was obtained unlawfully. These types of motions are called suppression motions. They seek to suppress or exclude evidence that the defendant claims the government has obtained illegally. Some motions filed pursuant to rule 12 may be resolved without the presentation of evidence by either side. The motion may simply require the court to rule on a matter of law or interpret a statute. The court can do this without hearing the testimony of witnesses. On the other hand, many rule 12 motions involve factual disputes that must be resolved before the law can properly be applied. Since these motions involve both questions of fact and questions of law, it is necessary for the judge or magistrate to hold an evidentiary hearing before deciding them. At the hearing, each side is entitled to present evidence. The evidence may take the form of exhibits, affidavits, or live testimony. After hearing the evidence, the court will be in a position to decide what the facts are. It will then apply the law to the facts. Of course, the court cannot know whether or not evidentiary hearings on pretrial motions will be necessary in a given case until the motions themselves are filed. And motions requiring evidentiary hearings should be scheduled and heard without delay in order to assure compliance with the Speedy Trial Act. At arraignment, the court will often set a deadline for the filing of motions by defense counsel in order to expedite matters. Rule 17.1 allows the court to schedule one or more pretrial conferences to consider motions and other issues that the parties believe will result in a fair and speedy trial. In some districts, pretrial conferences are called status hearings. The last pretrial conference in the case usually occurs a week or two before the start of the trial. At this hearing, any remaining pretrial motions will be decided. The court and counsel will then discuss matters related to the conduct of the trial itself, such as how the jury will be selected and instructed. Finally, I would urge the government to give defense counsel any JANKS Act statements it is aware of before the start of the trial. I've already provided defense counsel with copies of all the JANKS material I'm aware of, Your Honor, with the exception of the grand jury testimony of some of our witnesses against Defendant Jones, which the government will produce after those witnesses have testified for the government at trial. Ms. Harrison. I have received certain JANKS Act statements from Ms. Johnson. But with respect to the testimony of the two witnesses who testified for the government in the grand jury, which is rather lengthy in which I have not yet received. The JANKS Act is a statute passed by Congress. It requires the prosecutor to produce, in other words, give to defense counsel the prior statements or reports of each witness who testifies for the government in a criminal prosecution. The JANKS Act does not require the government to give the defense this material until after the prosecutor has finished questioning the witness on direct examination. Under the Act, only those statements and reports which relate to the direct testimony of the witness must be produced. The defense frequently uses statements given to it under the JANKS Act in cross-examining government witnesses. Ms. Johnson, as you know, when defense counsel has given JANKS material at the conclusion of the government's direct examination of a witness at trial, he or she must be given an opportunity to review it before cross-examining the witness. This can take time and disrupt the orderly presentation of evidence at trial. So, like many of my colleagues, I encourage prosecutors to give all JANKS statements to the defense in advance of trial. Very well, Your Honor. I'll have copies of the grand jury testimony made so that counsel can review them before the trial. Is that the grand jury testimony of the witnesses you referred to earlier, Ms. Harrison? Yes, it is, Your Honor. Very well. I'd appreciate that, Ms. Johnson. That way, we won't have to stop the trial every time the government finishes questioning one of its witnesses. Now, as far as the defense is concerned, under Rule 26.2... Rule 26.2 of the Federal Rules of Criminal Procedure requires the production of prior statements of government and defense witnesses at trial in essentially the same manner as required by the JANKS Act in the case of government witnesses. This concludes our discussion of pretrial matters. We'll see whether defendant Angela Smith and defendant Michael Jones go to trial in our next tape.