You generally need the judge to order such an examination. You have to persuade the judge that the examination is legally appropriate based on the facts of the case. After the motion is filed, the person to be examined, and all parties to the case, must be formally served with notice of the hearing that will determine whether or not the order is granted.
If granted, the order must be in writing and specify a time, place, manner, conditions and scope of the examinations. Abuse of the discovery process—either by asking for more than what you are entitled to or refusing to cooperate with requests—can result in sanctions from the court.
A motion to compel is used to get the other side to act. Usually, this motion is used to get the other side to do something they are required to do. This motion is filed with the court.
The court will force the other side to do something they are required to do. You must contact the other side before filing the motion. There has to be evidence that you tried to contact the other side.
You will want to keep a record of the things you did, including mail receipts, emails, call logs, and any method that you used to communicate with the other side to get the requested information. When you request the motion to compel, you will have to show the court that you used your best efforts to get the information from the other side and they did not give it to you.
Sometimes the court will schedule a hearing to decide if your motion will be granted. You should appear at this hearing to explain why you believe your motion should be granted. In addition to the required initial disclosures, you must also exchange expert disclosures, pretrial disclosures, and pretrial disclosures.
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Individual Rights. Name Change. Protection from Violence or Abuse. Self Help. Featured Self-Help. Self-Help Guides. Ask a Question. In some cases, the judge will hold a court conference to establish a timeframe for discovery, motions, and the trial.
You should pay attention to these deadlines because if you miss a deadline, the other party might file a motion to compel discovery. In most cases, you will only send your discovery responses to the other party. There are cases though where the court, not the other party, will request information. This usually happens in divorce or child support cases.
In these cases, when you receive a notice from the court, you should send your response back to the court and, in addition, send a copy to the other party.
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Skip to main content. You are here Home » Legal Information. Prior to disclosure, prosecutors should consult with the investigative agency to evaluate any such risks and to develop a strategy for addressing those risks or minimizing them as much as possible, consistent with discovery obligations.
Evidence and Information Gathered During the Investigation : Generally, all evidence and information gathered during the investigation should be reviewed, including anything obtained during searches or via subpoenas, etc. As discussed more fully below in Step 2, in cases involving a large volume of potentially discoverable information, prosecutors may discharge their disclosure obligations by choosing to make the voluminous information available to the defense. Of course, if a regulatory agency is not part of the prosecution team but is conducting an administrative investigation or proceeding involving the same subject matter as a criminal investigation, prosecutors may very well want to ensure that those files are reviewed not only to locate discoverable information but to locate inculpatory information that may advance the criminal case.
Where there is an ongoing parallel civil proceeding in which Department civil attorneys arc participating, such as a qui tam case, the civil case files should also be reviewed. Those communications that contain discoverable information should be maintained in the case file or otherwise preserved in a manner that associates them with the case or investigation.
Such communications may be memorialized in emails, memoranda, or notes. Communications involving case impressions or investigative or prosecutive strategies without more would not ordinarily be considered discoverable, but substantive case-related communications should be reviewed carefully to determine whether all or part of a communication or the information contained therein should be disclosed. Prosecutors should also remember that with few exceptions see, e.
For example, material exculpatory information that the prosecutor receives during a conversation with an agent or a witness is no less discoverable than if that same information were contained in an email. When the discoverable information contained in an email or other communication is fully memorialized elsewhere, such as in a report of interview or other document s , then the disclosure of the report of interview or other document s will ordinarily satisfy the disclosure obligation.
Potential Giglio Information Relating to Law Enforcement Witnesses : Prosecutors should have candid conversations with the federal agents with whom they work regarding any potential Giglio issues, and they should follow the procedure established in JM Prosecutors should be familiar with circuit and district court precedent and local practice regarding obtaining Giglio information from state and local law enforcement officers.
That information includes, but is not limited to:. Prior inconsistent statements possibly including inconsistent attorney proffers, see United States v. Triumph Capital Group, F. Statements or reports reflecting witness statement variations see below.
Benefits provided to witnesses including:. Dropped or reduced charges. Expectations of downward departures or motions for reduction of sentence.
Assistance in a state or local criminal proceeding. Considerations regarding forfeiture of assets. Stays of deportation or other immigration status considerations. Monetary benefits.
Non-prosecution agreements. Letters to other law enforcement officials e. Relocation assistance. Consideration or benefits to culpable or at risk third-parties. Animosity toward defendant. Animosity toward a group of which the defendant is a member or with which the defendant is affiliated. Relationship with victim. Known but uncharged criminal conduct that may provide an incentive to curry favor with a prosecutor.
Prior acts under Fed. Prior convictions under Fed. Information Obtained in Witness Interviews : Although not required by law, generally speaking, witness interviews [2] should be memorialized by the agent.
When a prosecutor participates in an interview with an investigative agent, the prosecutor and agent should discuss note-taking responsibilities and memorialization before the interview begins unless the prosecutor and the agent have established an understanding through prior course of dealing.
Whenever possible, prosecutors should not conduct an interview without an agent present to avoid the risk of making themselves a witness to a statement and being disqualified from handling the case if the statement becomes an issue.
If exigent circumstances make it impossible to secure the presence of an agent during an interview, prosecutors should try to have another office employee present.
Interview memoranda of witnesses expected to testify, and of individuals who provided relevant information but are not expected to testify, should be reviewed.
For example, they may initially deny involvement in criminal activity, and the information they provide may broaden or change considerably over the course of time, especially if there are a series of debriefings that occur over several days or weeks.
Trial Preparation Meetings with Witnesses: Trial preparation meetings with witnesses generally need not be memorialized. However, prosecutors should be particularly attuned to new or inconsistent information disclosed by the witness during a pre-trial witness preparation session.
New information that is exculpatory or impeachment information should be disclosed consistent with the provisions of JM Prosecutors should pay particular attention to agent notes generated during an interview of the defendant or an individual whose statement may be attributed to a corporate defendant. Such notes may contain information that must be disclosed pursuant to Fed. See, e. Clark, F. Vaffee , F. Having gathered the information described above, prosecutors must ensure that the material is reviewed to identify discoverable information.
It would be preferable if prosecutors could review the information themselves in every case, but such review is not always feasible or necessary. The prosecutor is ultimately responsible for compliance with discovery obligations. Accordingly, the prosecutor should develop a process for review of pertinent information to ensure that discoverable information is identified.
This process may involve agents, paralegals, agency counsel, and computerized searches. Although prosecutors may delegate the process and set forth criteria for identifying potentially discoverable information, prosecutors should not delegate the disclosure determination itself. In cases involving voluminous evidence obtained from third parties, prosecutors should consider providing defense access to the voluminous documents to avoid the possibility that a well-intentioned review process nonetheless fails to identify material discoverable evidence.
Such broad disclosure may not be feasible in national security cases involving classified information. Prosecutors must familiarize themselves with each of these provisions and controlling case law that interprets these provisions.
In addition, prosecutors should be aware that Section Prosecutors are also encouraged to provide discovery broader and more comprehensive than the discovery obligations. If a prosecutor chooses this course, the defense should be advised that the prosecutor is electing to produce discovery beyond what is required under the circumstances of the case but is not committing to any discovery obligation beyond the discovery obligations set forth above.
Considerations Regarding the Scope and Timing of the Disclosures: Providing broad and early discovery often promotes the truth-seeking mission of the Department and fosters a speedy resolution of many cases. Prosecutors are encouraged to provide broad and early discovery consistent with any countervailing considerations. But when considering providing discovery beyond that required by the discovery obligations or providing discovery sooner than required, prosecutors should always consider any appropriate countervailing concerns in the particular case, including, but not limited to: protecting victims and witnesses from harassment or intimidation; protecting the privacy interests of witnesses; protecting privileged information; protecting the integrity of ongoing investigations; protecting the trial from efforts at obstruction: protecting national security interests; investigative agency concerns; enhancing the likelihood of receiving reciprocal discovery by defendants; any applicable legal or evidentiary privileges; and other strategic considerations that enhance the likelihood of achieving a just result in a particular case.
In most jurisdictions, reports of interview ROIs of testifying witnesses are not considered Jencks material unless the report reflects the statement of the witness substantially verbatim or the witness has adopted it. Prosecutors should be familiar with and comply with the practice of their offices.
Timing : Exculpatory information, regardless of whether the information is memorialized, must be disclosed to the defendant reasonably promptly after discovery. See JM Prosecutors should be attentive to controlling law in their circuit and district governing disclosure obligations at various stages of litigation, such as pre-trial hearings, guilty pleas, and sentencing.
Prosecutors should consult the local discovery rules for the district in which a case has been indicted. Many districts have broad, automatic discovery rules that require Rule 16 materials to be produced without a request by the defendant and within a specified time frame, unless a court order has been entered delaying discovery, as is common in complex cases.
Prosecutors must comply with these local rules, applicable case law, and any final court order regarding discovery. In the absence of guidance from such local rules or court orders, prosecutors should consider making Rule 16 materials available as soon as is reasonably practical but must make disclosure no later than a reasonable time before trial.
In deciding when and in what format to provide discovery, prosecutors should always consider security concerns and the other factors set forth in subparagraph A above. Prosecutors should also ensure that they disclose Fed. If you are representing yourself in your case, discovery may be a good part of your case to let a limited-scope lawyer handle on your behalf. Find out more about limited-scope representation.
Informal investigation includes all information-gathering that you can do on your own working with cooperative people or organizations both before and after a lawsuit is filed. You can do a lot of this informal investigation before the case even starts, and it can help you decide if you should even file a case.
You may not be able to use everything you find out during this investigative process in court, but it can help you prepare your case. During the discovery process, lawyers can object to questions, requests for admissions, interrogatories, and other requests. If the other side does not agree with the objections and insists on getting the requested information, he or she can file motions in court to ask a judge to decide the discovery issues.
NOTE: There are also rules about formal discovery. Depending on the type of case it is, there may be limits on the number of questions that each side can ask, for example, and how long the discovery stage of the case may continue.
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