Andy Marcantel
On this week's episode of Fighting the State, it's time for the state to cough up the discovery in your case. What does that mean? We're going to talk all about it. This is attorney Andy Markell and attorney Mark j Victor. We're the partners of the Attorneys for Freedom Law Firm with a new chapter to our fighting the state series. How you doing Mark?
Marc J. Victor
Great man. Talking discovery today,
Andy Marcantel
Discovery is a big subject,
Marc J. Victor
Kind of an important one. The facts right? The facts of the case are kind of
Andy Marcantel
Important. Yeah. This is where we as the lawyer are figuring out how strong is the case? Is this a good case for trial? Is this a case that perhaps should plead out? Is this a case that has lots of interesting evidentiary motions? Is
Marc J. Victor
This case anywhere near as good as our clients told us in the very first meeting?
Andy Marcantel
Those things can differ and sometimes we all learn things as part of discovery for the first time and sometimes it's more along the lines of what we expected. But discovery is an incredibly important process whereby the state coughs up the evidence and we do a little digging of our own. So why don't we dig right into the big giant subject of discovery. Man,
Marc J. Victor
Let's get to
Andy Marcantel
It. What is discovery mark?
Marc J. Victor
Discovery is actually probably the right word. We are discovering what the state's case is about. The idea here is that trial by ambush, which is you're just finding out about what the case is about at the trial that doesn't really serve the public interest. What we're really trying to do is get people who are actually guilty, in fact convicted, at least when I say we not, we as criminal defense lawyers, we as citizens of the United States, we want the system to run properly. We want people who actually commit crimes to be convicted and people who actually don't commit crimes to be acquitted. We skew that in favor of acquittal because we've decided, and I say we, I'm talking about the founding fathers here, that better for 10 guilty people to go free than one innocent get convicted. And so the reason many states have what we call liberal discovery and what I don't mean liberal politically, what I mean liberal is you get to see is close to an open file. What the case is about is possible is because it promotes the idea that you're going to get a fair trial. Now again, like we've talked about previously, we have at least two different justice systems in each state, right? There's the federal and there's the state and the discovery rules are different,
Andy Marcantel
Very different between the
Marc J. Victor
Two. Yeah, generally 'em a lot better in the state. States are not, again, states are all different here, but states are generally more liberal with discovery than is the federal government. And I don't know why that's the case, but just on the federal level for example, you don't have a right to interview interview statements. A lot of those are given right before the witness testifies and so it's a little bit more restrictive. There's something called the Janks Act that you got to deal with and you play this little dance where in a federal case we send a letter to the assistant United States attorney saying, Hey, can you give us discovery? We'll give you discovery. And for the most part they're pretty good. You get most things, you get to see most things. But the big difference in many states and the federal government is pretrial interviews. So it's important to note here that you have a federal right to certain things that doesn't include pretrial interviews. I think it should, but it doesn't. So if a state wanted to say you don't have a right to interview all of the government's witnesses, that would be perfectly fine under the federal constitution.
Andy Marcantel
Yeah, absolutely. And just in the purpose of discovery is so that we can make sure that the state comports with our client's constitutional right to due process. We want to avoid a trial by ambush. If we're going to charge somebody with a crime, with the understanding that they're looking at potentially losing their freedom, getting stigmatized socially perhaps with a conviction or facing a myriad of other consequences that come with a criminal conviction, we want to get as far away as surprised trial by ambush as we possibly can. And so that is the point of discovery for the government to show their hand to the defense so that we can see exactly what they have.
Marc J. Victor
Alright, so taking off my citizen hat and putting on my criminal defense attorney hat, we don't want to give them any more than we have to. Hell no.
Andy Marcantel
And
Marc J. Victor
They don't want to give us any more than they have to. No, they don't. So this is why you get into some disputes. Now, this is going to happen in what we called in the last episode, kind of the middle of the case. We're going to show up and say, Hey, we want, here's how this starts, right? There's generally a rule of criminal procedure that lays out exactly what each side has to give the other side. So for the most part people understand that and they give you some stuff and we give them some stuff and then there's some other stuff
Andy Marcantel
On the edges, on
Marc J. Victor
The edges where we say, Hey, we think you got to give us that. And they might say, no, we don't have to give you that, or we don't have to get that for you. You can go get it yourself, but we don't have to get it. And we say, yeah, you do. And they say, no, we don't. So those kinds of things we would call a discovery dispute and if we can't iron it out, that's the kind of thing we go to the judge on. This is again the middle of the case. So at one of those many hearings where we show up, we might say, Hey judge, this is the way to raise it informally. Hey judge, we've asked the state or the government for this, that or the next thing and they're saying they don't have to provide it. The judge might resolve that right there and say, Hey, tell me what's going on. Yeah, you got to give them that or no, you don't have to give them that. Or the more conservative types will say, put it all out in a motion counsel and I'll rule on the motion.
Andy Marcantel
Show me the case law that says that the government has to give you that piece of evidence. And then we manned a briefing the subject and back and forth in the pleadings and maybe even setting it for a big oral argument where we're fighting over what the government has to give
Marc J. Victor
Us. Now there are some constitutional duties here because keep in mind, again, take off the defense attorney hat, put on the citizen hat again. What we want to do is to have the prosecutor be interested in justice, not interested in just getting racking up convictions. And to this end, the Supreme Court has decided in a really famous case called the Brady case that a prosecutor in a criminal case has a constitutional due process based obligation to provide certain types of evidence to the defendant IE stuff that might show that the defendant is actually not guilty. So if a prosecutor in prosecuting a case comes across some evidence from any source, it could be from their investigation, it could be from a co-defendant who's maybe sitting there ratting out another co-defendant. If some evidence comes into that prosecutor's control, which by the way isn't just the prosecutor's control is also the police officer's control the entities and agents of the prosecutor. If some evidence comes into their control that tends to show that the defendant is not guilty, that prosecutor is absolutely constitutionally obligated to hand it over to the
Andy Marcantel
Defendant and there are punishments. If they don't comply with these important concepts, we definitely have sanctions that we can ask the court for if the prosecutor fails to disclose Brady materials or if we have to file a motion to compel and say the court agrees with us and says, yeah, the prosecutor do that and they don't give it to us. There are certain sanctions that we can ask in terms of certain pieces of evidence being excluded or thrown out or maybe even in extreme cases getting the case dismissed.
Marc J. Victor
That's right. Or if somebody was convicted, get in the conviction thrown out if you find out that the prosecutor had exculpatory evidence. Now this can also include evidence to discredit a police officer that we have something called a Brady list. So police officers who have been disciplined for certain types of violations or have had other problems in court or have things that you might say would be of interest to defense attorneys who now are going to come and cross examinee that very important witness for the government. That's also the kind of thing that a prosecutor is obligated to cough up to the defense.
Andy Marcantel
Yes, I'll mention this to this whole process that we're talking about of filing something with the court to force the state to give us something. We oftentimes call this a motion to compel evidence or just a motion to compel for short, and we might file a motion to compel because of a discovery dispute that the other side simply just disagrees with us about whether they are required to comport with due process by giving us this particular piece of evidence, but there are actually other less dramatic reasons we might file a motion to compel. Maybe we just have a busy or a lazy or a backed up prosecutor and we've been asking over and over again for a piece of evidence and they're not disputing that they owe it to us or maybe they're really busy or the crime lab's really backed up or those body cameras are being redacted and it's probably we're very busy, it's going to take us three or four months. At that point, we might file a motion to capel saying, well, sorry, it's inconvenient for the state judge, but our client has due process rights that trump their right to keep evidence from us while we're preparing this trial basically,
Marc J. Victor
And this is the reason we have that middle of the case we talked about last time. This is the process of us learning about that case and what's involved here. They got to disclose all the witnesses. They say, here are the witnesses that we're going to call at trial. We then say, we want to interview all of them. If we're in a jurisdiction, we're entitled to interview. They then got to set up interviews. Now nobody owns the witnesses. Most cases we can call them directly, but witnesses also can put strings attached and say, Hey, I want the prosecutor or Here's a convenient location for me if they refuse. Sometimes you can get a deposition in a criminal case. You can in the state of Arizona and other states, you can some other states where you don't have a right to do interviews. You can't. Then there's evidence, Hey, we're waiting for this or that.
Marc J. Victor
Crime lab's always a big one, especially if they're running DNA, something that could take a long time. If they're testing a drug that's a little bit off the beaten path, that can take some more time. They may not have a facility in the state. They got to test, send it out of state to get tested. All of that can take a long time and the speedy trial clock is ticking during this period of time, and so sometimes we like to exacerbate that. We'll keep calling. We'll write letters, Hey judge, we've asked for this five times already. They still haven't provided, we'd like you to exclude it from the case and you think about it, right? Because otherwise you're going to prejudice the defendant their right to a speedy trial. So these are the kinds of things that come up. Also, lots and lots of documents sometimes.
Andy Marcantel
Let me run through the types of things that we receive in discovery because there's a giant, giant list and it depends on what type of a case that you're defending. The discovery process usually starts pretty soon after that initial hearing, that initial appearance that we described in some depth in the last video and just to list the types of discovery we may receive. It includes things like police reports and supplemental reports. What I mean by that is oftentimes additional officers will show up to a crime scene who perhaps aren't the main investigating officer or the main detective, but they had something to say that may be important, and so they file something called a supplemental police report. Then there are of course crime scene photos and all kinds of different photos, maybe photos. If there's a victim of injuries that the victim may have
Marc J. Victor
A
Andy Marcantel
Lineup or something, a lineup. All kinds of different photos can be disclosed. The videos that the state discloses is usually very significant. These include but are not limited to things like police body, worn cameras, cameras. Many, many jurisdictions in the United States now have different policies for their police departments to wear body-worn cameras while they're out on the beat, while they encounter people during incidents, and so we're entitled to all those as well as dash camera videos. Oftentimes, the cops have some sort of a video filming the front or the back of their police cruiser or a car, and we have access to all that. Surveillance footage often plays a huge role in many, many different types of criminal cases, and surveillance footage is typically owned by a private party, and the cops will maybe investigate a private party's privately owned surveillance footage, at what point they seize it or copy it, and then it becomes part of the state's evidence, which is also subject to disclosure interrogation videos or a big one.
Andy Marcantel
You and I have spent countless hours pouring over interrogation videos. Good time to mention are the old adage, just shut up if you're charged with a crime or arrested or the cops want to have a friendly chat with you because we can make the whole thing go away if you just wave your Fifth Amendment rights and talk to us without an attorney. So many times, I hate to say Mark, we've watched interrogation videos with our clients and done a few face palms all the while because the worst evidence in the case usually comes straight from the defendant's mouth. Just
Marc J. Victor
As a footnote, this is probably the most frustrating thing about practicing criminal defense. We say this over and over and over again. Every criminal defense lawyer says it, and yet even people in the A OR program who are getting these videos are still talking to the cops.
Andy Marcantel
Yeah, we have seen a number of things and we've said to some of those people, did you watch our videos? Have you seen our advice on this? Yeah, but I thought I could explain my way out of it.
Marc J. Victor
Stop ratting yourself out. Yeah,
Andy Marcantel
Just stop. Let's continue with the list. So all kinds of different audio may be disclosed to the defense in the discovery process, including witness interviews. Oftentimes at the scene, the cops will go around with a voice recorder and get people's statements or perhaps have them to the station the day after or the week after or the month after the initial incident to get their statements and defendant interviews are oftentimes recorded in the same way just by audio. Then there's 9 1 1 calls. 9 1 1 calls are really important audio in a lot of cases because there are statements that are made during those calls that often not only have evidentiary value, but more often than not can even get around the hearsay rules. And we're going to talk a lot about the hearsay rules in perhaps the trial section of our series, but because of the way that people call 9 1 1, they're in a heightened state, they're observing things in real time. Maybe they're making excited declarations and things like that. There are ways the state can introduce 9 1 1 calls more readily than perhaps other
Marc J. Victor
Reports statements. We're talking about statements here that are not made by the defendant. Hopefully the defendant kept their big mouth shut, but somebody else called 9 1 1 and may not even be available for trial. The point you're bringing is there are things about the nature and circumstances of those statements that could allow them to come in despite the fact that they're not available to testify at trial.
Andy Marcantel
Yeah, I feel like hearsay is going to be a whole section of our big trial video coming. So next, here's a huge one, mark, digital forensic evidence. We see this all the time nowadays, whether or not the crime even has to do with a crime committed online or a computer. Things like cell phone data, computer extraction, cellebrite data. We call it a lot of the times text message, online search history, photos on the phone, even GPS data showing which towers it pinged off of at what period of time, in case you don't know, your phone is creating an up to the minute log that of every single thing that you're doing in your life, usually time and dates and location stamped that the cops may be able to get access to if they get probable cause for a search warrant. Do you
Marc J. Victor
Remember the good old days when we used to talk about things like privacy? There is no such thing anymore.
Andy Marcantel
Well, a lot of people voluntarily waive their privacy in the eyes of the state by basically putting detailed tracking devices on their person, and then of course, the expansion of the cops to search these types of things and the types of warrants that are granted really is eroding privacy, but that's perhaps a different subject to continue on forensic interviews. This is when we have an expert from the state who has to be specially trained or qualified to interview a certain witness. For example, child witnesses usually have forensic trained forensic interviewers, and those interviews are oftentimes available in these cases, expert reports. This is where the state has an expert and perhaps it's a forensic expert, a medical expert. Perhaps somebody does an autopsy or is examining somebody for cues of domestic violence or different types of physical injuries. Their reports will be present. DNA evidence is another huge one. It becomes more and more prevalent as technology advances ballistics evidence. We see all the time in shooting cases as well as accident reconstruction, you and I have had many cases involving car accidents. Sometimes they involve death or serious physical injury, and there are usually experts that come out and attempt to reconstruct the scene that are associated with different police departments and their reports. They're also included in discovery.
Marc J. Victor
People wonder why these cases take so long, right? Because we're waiting for their expert report so we can get it. We finally get it. Then we want to give it to our expert so our expert can review it, and then they do their own report and say, here's what was wrong in the state's report. And so it just takes time. There's just not a way to rush the process.
Andy Marcantel
You bring up a really good point right now, which is up until this point, we've been talking about the things that the state is required to give us to come with due process, but as it turns out, the defense to usually a more limited degree, but still a significant one also has to disclose certain things to the state.
Marc J. Victor
Yeah. Very important to note. One of the things we do not have to disclose is anything that is told to us in a private setting by our client, nor do we have to disclose whether or not they're going to say anything at trial. Even if they did, they would say, this is why I say keep your mouth shut. If you're going to say something, sometimes the best time to say it for the first time is at trial. After the state has presented their case. It really is a great advantage for the defense if the defendant keeps his or her big mouth shut.
Andy Marcantel
That's right. We get to see them show all of their cards on the table and assess from that whether or not our client chooses to testify at trial, and usually in every trial that we've done, they're the last person to speak. They get the benefit of seeing every single other witness, the state side, the defense side, they get to sit through all of it. You hear people talk about invoking the rule, which means that other witnesses have to step outside of the courtroom. We'll talk about that. But the defendant has a constitutional right to be there for all of the witnesses and then can make a decision about what to say in their testimony so long as they kept their big mouth shut in the beginning of the case.
Marc J. Victor
And also expert reports that we might get that are not favorable. Say we send our guy out for a psychological evaluation and the psychologist says, your guy's a bad guy.
Andy Marcantel
He's a disaster. He's
Marc J. Victor
A disaster. Thank you very much. We're not going to call you as a witness at trial, and therefore we don't have to disclose that expert
Andy Marcantel
Report. Don't write a report. We don't want to see your report.
Marc J. Victor
We don't even want to report.
Andy Marcantel
Yeah. Yeah. Just keep it to yourself. Thanks for your opinion, doctor. Maybe we'll go to a different expert. And different experts have different opinions, and
Marc J. Victor
So we have to think ahead of time when we interview a witness who is not the defendant in the case. Because if we interview someone and then we take notes about that, there can at least be an argument that those notes are discoverable to the prosecutor. We can't claim attorney-client privilege because this isn't our client, but there is something called the work product doctrine that we can make an argument under. But sometimes a judge will want to consider that like a police report, especially if we're sending an investigator and the investigator makes a report about a witness interview, they're going to want that on the other side. So we might tell our investigator to not make any report on that depending on what we want disclosed and what we don't want disclosed. So we got to be very careful about creating evidence that we would be required to give to the other side.
Andy Marcantel
Right. And as trial approaches, the criminal procedural rules of every state in the United States require both sides to let each other know certain things like here's our list of witnesses and a brief statement of what our experts are planning on testifying to. For example, here's pieces of evidence that we're putting the state on notice that we're planning on using at trial or trying to get admitted into evidence, things like that. We have to put each other on notice so that we each have the chance to inspect each other's evidence to interview each other's witnesses and expert witnesses. So the idea is that the defense here is also compelled to share certain things with the state. Finally, a big topic is non-police related documents relevant to the case. And oftentimes these are documents that are generated by our client in a case or somebody involved tangentially outside of the police.
Andy Marcantel
I'm talking things like financial documents. Say we have a big white collar case that involves maybe years and years or hundreds of thousands potentially of different documents that may be relevant to that case. I'm talking things like drug ledgers or ledgers that show some sort of illegal activity. Even things like diaries or personal notes that a defendant might have written down or text messages were mentioned. That's a form of a self-created document that could be used by the other side. And of course, whatever they're holding, regardless of whether the police generated or not, our client is entitled to see that as part of their due process rights. Yeah,
Marc J. Victor
It's a real downer when you're defending someone on a drug sales case and the prosecutor provides ledgers found at in your guy's bag or something that keeps clear records,
Andy Marcantel
Perfect handwriting that matches his Exactly. And maybe he signs it at the end. We've had these cases. Lots of
Marc J. Victor
'em.
Andy Marcantel
Yeah, lots of, and so usually those result in us trying to fight over the admissibility of the evidence and try to keep that kind of damning evidence out. But we got to be able to see it in order to prepare for it. And furthermore, we need to know how the state seized it in order to prepare for it and to try to get it out. And all that stuff is present in the disclosure. The last thing that I'll say in terms of things that they will share with us is victim related documents. There are victims, in many cases, a victim is alleged by the state as part of a crime, and victims have certain rights. We're going to spend some time talking about it in the future about how various states preserve the rights of victims in criminal cases. And part of that is the victim may want to request restitution.
Andy Marcantel
And restitution is basically a victim saying, Hey, as part of committing this crime, the defendant harmed me in some tangential way, harmed me, maybe medically, maybe they destroyed my property, something that I have a bill attached to or can show some sort of a quote for or something more concrete than just speculation or general pain and suffering. Like, here's an actual bill that I incurred as a result of the conduct of the defendant. And so just because a victim has claimed to be wronged or just because a victim claims that they lost a million dollars as a result of the act of the defendant, it is not a blank check in any jurisdiction. They hand it over to the prosecutor or the prosecutor, hands it over to us. And that may become the subject of another part of negotiation of really prosecutor, do you really believe that there's this much restitution that's owed? And oftentimes these restitution requests will go to their own oral argument called a restitution hearing.
Marc J. Victor
You mentioned victim rights and makes me think of just yesterday, I was in court representing a victim in a first degree murder case and really highlights the importance of very carefully reviewing the discovery because my job yesterday was to argue against the plea. The defendant and the prosecutor entered into a plea that my client, the victim in the case who's the dad of the deceased thought was too light. And so I went there and argued that, but my argument was based on the discovery was based on the fact that the factual basis offered to the court by the defense attorney wasn't supported with a careful reading of the discovery. And on the strength of that, we got the judge to reject the plea, which is as good as you're going to get representing a victim. And I probably take this opportunity to just remind everybody, the people in the attorneys on retainer program have yet another benefit that I don't think any other company offers, which is victim representation. We represent victims all the time in criminal cases. And if you're an a OR client and you're involved in a self-defense issue and you don't get charged, but the bad guy gets charged, you're still entitled to representation with the attorneys for Freedom Law Firm. And we love doing this stuff and we review all the discovery and oftentimes, like it did yesterday in court, it really pays off
Andy Marcantel
Or a different thing if your client gets charged in the first place. So if one of our attorneys on retainer clients gets charged because the government or police erroneously at first believe that they're the bad guy, and then it turns out that that gets dismissed, we'll go after the bad guy, the real bad guy who is initially listed as the victim. We love doing that as we're
Marc J. Victor
Doing now in another case. So stay tuned on that
Andy Marcantel
One. Yeah, absolutely. And then here's my perfect segue to the next video to put a bow on this list of discovery that we get access to. It is interviews. And interviews is a huge, huge subject that we are going to spend a lot of time on in our next video. So tune in next time, my friends. Any last thoughts that you have on the discovery process?
Marc J. Victor
Just because I've worked with a lot of attorneys over the years and there's like everything else, good and bad, you get access to a lot of discovery, but if you don't carefully review it, tear it apart line by line. We've done many times, people sometimes will, I know they'll say they'll look on our bill, the video's an hour long, but it took us two hours to review the video because we go back and we listen again and we think about
Andy Marcantel
It. Maybe we'll have our own expert expand the video, enhance the video, enhance the audio. Yeah, we could dissect the same video. And we have many times on this channel played a video, gone through it, slowly said, here's this, here's
Marc J. Victor
That. I'm going to watch it five times in a row and go through it again. And so getting the discovery is one thing. Reviewing the discovery, processing that discovery for important issues that you can then use and turn into a motion to suppress. Motion to compel motions that put pressure on prosecutors to drop cases, to offer better pleas or just to keep stuff out of evidence. So if the case goes to trial, you get a better chance of a not guilty. It's all fits together. All these videos really go together under the heading of fighting the state. That's right. Defending a criminal case.
Andy Marcantel
And just like every other part of the process, you can use the discovery process as a tool in your toolbox to your client's advantage to keep that pressure up on the state, to make sure that you got them working hard on the case to frankly try to drain their resources as a prosecutor. They got other cases. Yeah, it's true. They work for the government. Yeah, it's true. That generally means unlimited resources in terms of funding, but prosecutors are human and they have a caseload, and we know that. And we're very, very tuned in to creating as much colorable claims as we can for them to have to respond to and have to go to oral argument on, these are all bargaining chips on our side. And oftentimes we'll threaten discovery disputes if we can't get some sort of a reasonable resolution for our clients. There might
Marc J. Victor
Be more than a few prosecutors out there who see the name of our firm on there and think, oh, not these guys. Here we go again. Here we go again. And that's exactly what
Andy Marcantel
We want. Yeah, we definitely have that reputation for fighting every inch of the way for our clients to get the best result. And discovery process is no different. That's
Marc J. Victor
What I'd want done for me.
Andy Marcantel
Absolutely. Alright everybody, thanks for tuning in to this episode of Fighting in the State. Go and check out attorneys on retainer us to learn all about our self-defense program and what it can do for you. Go and check out attorneys for freedom.com to learn all about our law firm and our philosophy of how we defend people. Like the video, share it with a friend if you liked it, and leave us a comment down below. Until next time, my friends, this is attorney Andy Marcantel and attorney Mark J. Victor. Peace, peace.
YouTube Video Link: https://www.youtube.com/watch?v=AsxbuI-BcUo
Credit: Attorneys On Retainer