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to contradict them. In extreme cases, the federal law provides for preventive
detention of the defendant or of the witnesses to prevent witness intimidation or
murder. [United States v. Salerno, 481 U.S. 739 (1987).]
Although the defendant does not have a right to all the information that the
government holds, the defendant does have a constitutional right to favorable
evidence that the government holds. [Brady v. Maryland, 373 U.S. 83 (1963)] The
difficulty is for the defendant to figure out how to ask for specific evidence that
meets this test when the defendant does not know what evidence the government is
holding. The defendant’s attorney must craft a “Brady request” that forces the
government to either turn over the evidence or risk having their case reversed on
appeal if the evidence comes out at trial or even posttrial. For reversal, the defendant
must show that he or she did not have other notice of the information. There is no
violation “where a defendant knew or should have known the essential facts
permitting him to take advantage of any exculpatory information, or where the
evidence is available from another source.” [United States v. Clark, 928 F.2d 733,
738 (6th Cir. 1991).] The defendant must also show that the evidence that was
withheld is “material,” in that there is a reasonable probability that it would have
affected the result of the trial. [United States v. Bagley, 473 U.S. 667, 682 (1985).]
The defendant is entitled to the records of certain of his or her own statements made
to the police and to recorded statements made by witnesses who testify. These are
generally not provided before the trial, but only at the time the witnesses testify. The
government is permitted to give the defendant more information, and the defendant
may petition the judge to order the government to produce other information. The
government has an incentive to provide additional information because it reduces the
defendant’s grounds for appeal based on withholding exculpatory evidence. This is
most important in cases involving the death penalty where the postconviction review
is the most thorough and the defendant gets the greatest benefit of the doubt as to the
importance of the evidence.
C. Which Cases Go To Trial?
Most civil and criminal cases settle before trial. The plaintiff and the defendant in civil
cases work out a settlement based on information obtained during discovery. Criminal
cases end with a plea bargain, especially if the defendant is not wealthy enough to
mount a substantial private defense.
1. Why Settle before Trial?
The uncertainty inherent in the jury system encourages these settlements because
both sides realize that although they may win more than the settlement provides, they
can also lose everything. In some cases, innocent defendants, both civil and criminal,
settle or accept a plea bargain because they believe that jury prejudice will make it
impossible to get a fair trial. This happens both to poor members of disadvantaged
groups who fear racial or ethnic prejudice, and to large corporations that fear that
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