A recent editorial in the New York Times called for an overhaul of the system of pretrial discovery in federal criminal cases. A recent report criticized the discovery failures of federal prosecutors in the prosecution of Senator Ted Stevens. A recent bill was introduced in Congress to restructure the penalty law with regard to prosecutorial failure to disclose exculpating evidence. These news events have focused attention on the way our federal system of justice deals with discovery and emphasize the radical differences between federal criminal and civil discovery.
The difference between the approaches to discovery between the criminal and civil systems has long been the subject of debate. Considering what is at stake—liberty versus dollars—it is remarkable that the criminal system is far less open to defense counsel having true access to discovery than the same counsel on a civil case. And the differences do not stop with discovery.
