Criminal Discovery - A Lighter Blog (1/21/12)

Discovery is a significant part of criminal tax practice and criminal practice in general.  FRCrP 16, here, allows limited discovery, sometimes reciprocal.  In addition, there are certain constitution disclosure requirements, such as Brady, Giglio and Jencks Act.  Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); and 18 USC 3500, here.  Some, perhaps most, USAO offices have an open file policy in criminal tax cases -- at least the run of the mill tax cases -- which will disclose everything the Government has in terms of raw data (generally not mental processes related to the investigation and prosecution, but some of that can be reasonable inferred from the data in the files).  Most of the time that works to put the defendant on notice of the Government's case.  And, because of the work performed by the time of indictment, the files will not only put the defendant's counsel on notice, but will paint a sufficiently devastating picture that it will induce a plea in most cases (because most federal tax crimes cases, like most federal crimes cases, result in a plea)..

I don't plan on writing a tome on criminal tax discovery here.  Looking for a lighter nuance on the problem of criminal discovery, I refer to that famous legal movie, My Cousin Vinny (see Wikipedia here), dealing with informal discovery in a state criminal case -- the murder at the Sac O' Suds.  The prosecutor -- Jim Trotter III -- in a small Alabama town had invited his adversary, the defense counsel, the inimitable Vincent Laguardia Gambini, to a hunting jaunt to take his mind off the defense.  Vinny took him up on the offer, hoping to get some informal discovery by schmoozing with the prosecutor.  So here is the dialog with some digression by Mona Lisa Vito:

Mona Lisa Vito: You're goin hunting?
Vinny Gambini: That's right.
Mona Lisa Vito: Why are you going hunting? Shouldn't you be out preparing for court?
Vinny Gambini: I was thinking last night. If only I knew what he knows, you know? If he'd let me look at his files; oh boy.
Mona Lisa Vito: I don't get it. What does getting to Trotter's files have anything to do with hunting?
Vinny Gambini: Well, you know, two guys, out in the woods, guns, on the hunt. It's a bonding thing, you know; show him I'm one of the boys. he's not gonna let me look at his files, but maybe he'll relax enough to drop his guard so I can finnesse a little infomation out of him.
[searches through his clothes]
Vinny Gambini: What am I gonna wear?
Mona Lisa Vito: What are ya gonna hunt?
Vinny Gambini: I don't know, he's got a lot of stuffed heads in his office.
Mona Lisa Vito: Heads?
[Vinny looks up at Lisa]
Mona Lisa Vito: What kinda heads?
Vinny Gambini: I don't know, he's got a boar, a bear, a couple of deer.
Mona Lisa Vito: Whoa. You're gonna shoot a deer?
Vinny Gambini: I don't know. I suppose. I mean, I'm a man's man, I could go deer hunting.
Mona Lisa Vito: A sweet, innocent, harmless, leaf-eating, doe-eyed little deer.
Vinny Gambini: Hey Lisa, I'm not gonna go out there just to wimp out, you know. I mean, the guy will lose respect for me, would you rather have that?
Vinny Gambini: [Lisa gets up, walks over to the bathroom and shuts the door] What about these pants I got on, you think they're O.K.?
[Looks down]
Vinny Gambini: Oh!
Mona Lisa Vito: [comes out of the bathroom] Imagine you're a deer. You're prancing along, you get thirsty, you spot a little brook, you put your little deer lips down to the cool clear water... BAM! A fuckin bullet rips off part of your head! Your brains are laying on the ground in little bloody pieces! Now I ask ya. Would you give a fuck what kind of pants the son of a bitch who shot you was wearing?
-----------------------
Mona Lisa Vito: Don't you wanna know why Trotter gave you his files?
Vinny Gambini: I told you why already [alluding to his own consummate schmoozing].
Mona Lisa Vito: He has to, by law, you're entitled. It's called disclosure, you dickhead! He has to show you everything, otherwise it could be a mistrial. He has to give you a list of all his witnesses, you can talk to all his witnesses, he's not allowed any surprises.
[Vinny has a blank look on his face]
Mona Lisa Vito: They didn't teach you that in law school either?