You probably do not need an Attorney Sam’s Take to tell you that, for trial, preparation is necessary. In fact, it is vital.

Nor should you need an experienced Boston criminal lawyer to tell you that the preparation for trial begins at inception of the case. After all, the defense is already behind the eight ball. This is because the prosecution knew that it was bringing the charges, knew about whatever investigation was going on, has spoken to its witnesses and has written up all of its reports. It knows with those reports say. The defense does not until the reports are given over.

In felony cases, there is also the grand jury minutes. As we have discussed, prosecutors put witnesses in front of a grand jury to get an indictment. Therefore, the prosecutors know what was said in the grand jury. The defense does not know until the grand jury minutes are handed over. In fact, in many cases, the defense does not even know who testified before the grand jury until those documents are handed over in discovery.

Earlier in the week, we discussed a matter in which it seemed that witnesses for the prosecution were actually some nice folks who dodged the bullet of prosecution by cooperating with the prosecution. Otherwise they might have been defendants. The defense was seeking documents which would reflect what, if any, deals were made with these witnesses which convinced them to join the “good guys”. After all, it was clearly evident that these witnesses were given some kind of a deal because they were given immunity from prosecution. So the question the game what were the details of the deal?

Obviously, an important question.

iIt would seem a simple deduction, then, that this information would be promptly given over to the defense so that the defense may investigate the statments made and the motivation of these prosecution witnesses.

Only fair, right?.

In the land of Fairytale Justice, where the prosecution is simply looking to find and express the truth, there would be no question as to whether the prosecutors would give this information over right away.

in my quarter century of experience in criminal law, I have not yet found any courthouse located in the jurisdiction of Fairytale Justice. I have handled cases in many other jurisdictions, however. All of these seem to be rooted in the strange world of Reality.

In the land of Reality, discovery disputes take place all the time. The prosecution often does not want to provide documents that the defense feels it needs. If the two sides cannot work it out among themselves, then the court must intervene.

“Why would the government be afraid to present everything they have?”

Well, in fairness, there are many reasons. Some of the arguments are reasonable. Others are not. The first thing you have to remember is the prosecutor is not simply assigned to the case to shake the truth out of it. As far as the government is concerned, the prosecxutor knows the truth. This is why the case is pending in the first place. The prosecutor is an advocate, first and foremost. While your defense lawyer should be the advocate for you, the prosecutor is the attorney advocating against you. If you are “The Defendant”, the assumption is that you are a bad person, did bad things, and, if given the opportunity, would do more bad things to get out of trouble.

In order to make sense out of what happens with discovery, you have to understand that reality.

“Why is the prosecutor so sure the defendant is in the wrong?”

There are a couple of reasons for this. First of all, as a former prosecutor, I can tell you that there is a certain indoctrination which occurs. Often, a prosecutor became a prosecutor as a first job out of law school. Therefore, all of their lawyering experience thus far has been from the point of view of the prosecution. It has also included training on how to win case and what mistakes not to make. They are taught that they are the guys and gals in the “white hats”. The defense attorneys are the ones in the “black hat”.

And, as we all know, one has to be wary of them.

Given that the prosecution believes that the defendant is guilty as charged, certain other “truths” logically follow. They include, but are by no means limited to the following:

1. The defendant was present at and perpetrated the crime. Therefore, that defendant knows all the facts better than anyone else. That includes the police, witnesses and defense attorney. Therefore, if the defense attorney does not know something about the case, it is simply because her client has not been totally honest with her. And that, after all, is not the fault of the government; and

2. The defendant does not want to be convicted. The defendant is willing to do bad things even in the best of times. Therefore, should the defendant be able to get out of trouble by doing bad things, then the defendant is more than willing, and probably able, to do so. This includes manipulating facts and terrorizing prosecution witnesses.

So, particularly given No.1, above, how can the prosecution fight against No.2 , above?

Let’s start with that on Monday.

In the meantime, have a great, safe and law-abiding weekend!

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