When You See the Government's Evidence Against You
The rules on what evidence you get to see and when you get to see it can be tricky. And, frankly, you’re likely to think they’re unfair. Frankly, we think they’re unfair. But here they are.
During a Federal Investigation
If you’re under investigation but haven’t yet been charged, you don’t generally have a right to see any evidence against you. It may be that your lawyer can reach out to the federal prosecutor - the AUSA - to try to get early access to the evidence, but that is subject to negotiation. Often a federal prosecutor will say that you’re only going to see the evidence, and then only some of the evidence, if you’re talking about working out a plea.
This can be incredibly frustrating. You want to figure out the evidence against you and start defending it before you’re accused of a crime. The law, though, doesn’t give you a right to this information. The only way you’ll get it is if your lawyer is able to work something out with the other side.
Once You’re Charged
When you're charged with a crime, the rules change. Generally, what you’ll get will come in waves. The first wave is often made up of the information that the prosecutor showed to the grand jury as a part of getting them to return an indictment. As the case goes on, particularly as it heads to trial, you will learn more about what the government has.
Often, the government will be actively trying to get you to plead guilty. They’ll show your attorney their strongest and best evidence first. Sometimes the prosecutor will be willing to do what’s called a “reverse proffer” where they show you their best and strongest case. Keep in mind though, this is often their case without any evidence that supports your side.
If you said anything to the federal agents investigating the case, you’ll likely see any memos or get any recordings of those statements early in the investigation.
Bank Statements, Cell Phone Records, Credit Card Statements, and Trading Records
You’ll likely get these early on in the case. These can present a unique challenge - the government will collect a massive number of records. They’ll hand them all over to you. It’s not rare in a fraud case to get thousands of pages of records. These often only make sense once you understand what the government’s case is about; yet they can also take a tremendous amount of time to review and understand.
Evidence That You Didn’t Do It
The government has to turn over any evidence that they have that you didn’t commit the crime. Often this is a statement made by someone who they interviewed. The problem is that most prosecutors and many courts have said that you don’t have a right to this information if you’re taking a guilty plea; you only get a right to it if you’re going to trial. This means that you might enter a plea without seeing that the government’s case has real problems - that someone has said that you didn’t do it. It can be a strong reason to wait to make a decision about taking a plea.
Similarly, if one of the government witnesses has something in his or her past that shows they can’t be believed - they said something different one time they talked to the cops rather than another time - you’re entitled to see that. But you don’t normally get that information if you’re taking a plea.
Statements of the Government’s Witnesses
If the government is going to call someone to testify against you, you’ll be able to get a copy of any statement they made before they testified that the government has. Under the rules, you get those statements right after that person finishes testifying and right before your lawyer cross-examines that witness. Most judges, though, require the government to give you this information sooner. Sometimes you’ll get it a few months before trial, sometimes a week before. But this can be powerful evidence to attack what these witnesses say.
If you're accused of a crime, all of this is likely deeply troubling. It’s outrageous how much the government gets to hide from you until late in the game while they’re trying to throw you in prison.
Here’s a ray of hope — many of these disadvantages can be partially overcome by having a lawyer who has been through this all before. The federal government often has a playbook. If your lawyer knows how the government puts a case together and approaches things, you can see some of what will be coming at you before it comes. This isn’t perfect, and it still isn’t fair, but it’s a little better than you might fear it is at first blush.