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Defendants' Pretrial Access to Documents in White-Collar Prosecutions
Accused of withholding a DNA report favorable to the defendants in the Duke lacrosse case, Durham, NC, District Attorney Mike Nifong reached for an argument familiar to defense attorneys: Even if he didn't produce a report identifying exculpatory DNA results, he did produce documents containing those results ' among over a 1,000 pages of related documents produced before trial. Of course, the North Carolina Bar found that Nifong did more than simply bury favorable evidence in a document production. Assume, however, that he had produced exculpatory DNA results, and even a report explaining them, in thousands of pages of documents, but defense counsel didn't find them. Did he satisfy his disclosure obligations?
No, according to at least some decisions. Indeed, courts have long held that the government cannot satisfy its discovery obligations by merely turning over mountains of documents. See, e.g., U.S. v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987); U.S. v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989). Nevertheless, the 'document dump' has become only more common, especially in complex white-collar criminal cases. And defense attorneys in those cases would be lucky to get only a few thousand pages; they often face millions. Even if the documents are electronically searchable, most defendants lack the money and time before trial for their attorneys to review them.
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