How Federal Defense Lawyers Investigate Federal Agents and Prosecutors
Contents
Introduction
Federal defense lawyers play a critical role in investigating federal agents and prosecutors. As advocates for individuals facing federal charges, defense lawyers have an ethical obligation to vigorously defend their clients. This means leaving no stone unturned in scrutinizing the government’s case.Defense lawyers have a range of methods for investigating agents and prosecutors. These include formal discovery, informal information gathering, legal motions, and complaints to oversight bodies. Used properly, these techniques can uncover government misconduct, mistakes, overreach, and bias. This levels the playing field for defendants and leads to fairer outcomes.
Formal Discovery
The most basic investigative method is formal discovery under the Federal Rules of Criminal Procedure. These rules require federal prosecutors to disclose certain categories of information to the defense. This includes the defendant’s statements, documents and objects material to preparing the defense, and information that could impeach government witnesses 1
.Discovery is crucial for understanding the prosecution’s theory of the case. But defense lawyers often have to fight for full disclosure. Prosecutors frequently take narrow views of their obligations or drag their feet. When this happens, defense lawyers file discovery motions to compel broader disclosures. Judges tend to give prosecutors the benefit of the doubt, but persistent advocacy can shake loose important information 2.
Informal Information Gathering
Defense lawyers also gather information through informal channels. They interview potential witnesses with no connection to the government’s case. They track down leads and collect documents on their own. And they consult with private investigators, forensic experts, and other specialists to explore weaknesses in the prosecution’s evidence 3.
Informal investigations aim to find exculpatory evidence and witnesses. These discoveries can then be leveraged to undermine the credibility of government agents and prosecutors 4.
Legal Motions
Defense lawyers frequently file legal motions targeting perceived deficiencies in the government’s case. Common examples include motions to suppress evidence, dismiss charges, disclose exculpatory evidence, and reveal confidential informants 5.
These motions serve both tactical and investigative purposes. They preview defense arguments, probe for information, and test the thoroughness of government agents and prosecutors. Even if unsuccessful, motions signal that the defense will hold the government accountable at every turn.
Complaints to Oversight Bodies
When government misconduct comes to light, defense lawyers can file complaints with oversight bodies. At the federal level, these include courts, Congress, the Justice Department’s Office of Professional Responsibility (OPR), and agency inspectors general. State bar associations also investigate allegations of prosecutorial misconduct.Complaints can trigger formal investigations into agent or prosecutor wrongdoing. If substantiated, this can lead to professional discipline or even criminal charges. The threat of sanctions deters future misconduct and encourages better compliance with disclosure rules.
Common Investigative Targets
Defense lawyers zero in on certain areas where government agents and prosecutors are prone to missteps or questionable conduct. These include:
Warrants and Affidavits
Defense lawyers scrutinize warrant applications and supporting affidavits. Technical defects can lead to suppression of evidence. Clear omissions, errors, or material misstatements may indicate sloppy police work or even perjury. This undercuts agent credibility and the integrity of the underlying investigation.
Informants and Cooperators
Informants and cooperating witnesses are wildcards for both sides. Defense lawyers dig into their backgrounds, motives, and relationship with handlers. Any benefits received in exchange for cooperation, or signs of unreliability, supply fodder for cross-examination.
Forensic Analysis
With scientific evidence playing an increasing role, defense lawyers take a hard look at forensic analysis. They explore analysts’ qualifications, accreditation of labs, testing methodology, error rates, and proficiency. Sloppy forensics cast doubt on both individual examiners and institutional controls.
Electronic Surveillance
Defense lawyers carefully analyze any electronic surveillance used in an investigation. They check for misstatements in wiretap affidavits, minimization violations, improper data sharing, and other deficiencies. Suppression may result if statutory requirements are not strictly followed.
Discovery Violations
Late or incomplete discovery feeds suspicions that the government is hiding information. Defense lawyers pounce on discovery violations to argue for sanctions, like dismissing charges or excluding evidence. Repeated violations indicate willful obstruction versus mere oversight.
Media Leaks
Defense lawyers monitor for prejudicial leaks of non-public information to the media. They explore whether leaks can be traced to specific agents or prosecutors. Publicizing leaks puts pressure on judges to protect defendants’ right to an impartial jury.
Why Investigation Matters
Vigorous investigation of federal agents and prosecutors serves three key purposes:
Deterring Misconduct
Shining a light on government missteps deters future misconduct. When agents and prosecutors know their work will undergo close scrutiny, they have added incentive to follow protocols.
Revealing Weaknesses
Investigation exposes factual holes, analytical errors, bias, overreach, and other vulnerabilities. These revelations provide openings to challenge the overall strength and fairness of the government’s case.
Furthering Justice
Most fundamentally, investigating the government upholds due process and the search for truth. As Justice Louis Brandeis famously wrote, “Sunlight is the best disinfectant.” Nowhere is this truer than in defending those accused by the state.
Conclusion
Investigating federal agents and prosecutors levels an uneven playing field. It advances the truth-seeking mission of criminal justice. And it ultimately produces fairer outcomes for all involved. As Brandeis might say, letting the sun shine in makes the whole system healthier.
References
https://www.law.cornell.edu/rules/frcrmp/rule_16
https://www.nacdl.org/getattachment/a92d7c30-ecb4-48b5-9d33-a0f50a31c3c3/discoveryreformreport_final.pdf[3] https://www.justice.gov/archives/jm/criminal-resource-manual-165-guidance-prosecutors-regarding-criminal-discovery[4] https://www.nacdl.org/getattachment/a92d7c30-ecb4-48b5-9d33-a0f50a31c3c3/discoveryreformreport_final.pdf
https://www.justice.gov/jm/jm-9-24000-confidential-informants
https://www.law360.com/articles/1087386/how-defense-attys-can-get-evidence-through-pretrial-motions https://www.americanbar.org/groups/professional_responsibility/resources/report_archive/darcy2017/
https://digitalcommons.law.yale.edu/ylj/vol121/iss3/1/
https://www.nacdl.org/getattachment/a92d7c30-ecb4-48b5-9d33-a0f50a31c3c3/discoveryreformreport_final.pdf https://www.justice.gov/jm/jm-9-24000-confidential-informants https://www.nacdl.org/getattachment/a92d7c30-ecb4-48b5-9d33-a0f50a31c3c3/discoveryreformreport_final.pdf
https://www.justice.gov/jm/jm-9-70000-electronic-surveillance-title-iii-applications
https://www.law360.com/articles/1087386/how-defense-attys-can-get-evidence-through-pretrial-motions https://www.rcfp.org/journals/news-media-and-law-fall-2017/leaks-federal-criminal-investigations/
https://digitalcommons.law.yale.edu/ylj/vol121/iss3/1/
https://www.nacdl.org/getattachment/a92d7c30-ecb4-48b5-9d33-a0f50a31c3c3/discoveryreformreport_final.pdf https://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/business-a-profession-chapter-15
https://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/business-a-profession-chapter-15