In federal criminal cases, prosecutors continue to exercise substantial judgment in determining whether evidence is “favorable” to the accused, how important such evidence is, and why and when it must be disclosed. The defense is often forced to spend countless hours in cat-and-mouse games over what the prosecution is prepared to produce and when, and frequently does not learn until just before trial both what may be most helpful to its case (all of the impeachment information), and what may be most harmful (all of the incriminating parts of the government witnesses’ prior statements).
This limited and delayed disclosure regime often unfairly and unnecessarily hampers the defense in making timely and informed decisions about case strategy, evaluating the strengths and weaknesses of the prosecution, and challenging the government’s case at trial.
