Robert Hilson wrote about the Anthony trial for the Association of Certified E-Discovery Specialists. ¹ You’re probably asking what E-Discovery has to do with a murder trial and if you are a criminal defense attorney your probably asking, “What is E-Discovery?”

We do not need the Anthony trial to learn that criminal defense attorneys can no longer evade the use of E-Discovery. Not too many years ago, with the possible exception of a major wiretap case criminal defense attorneys did not use E-Discovery. Now we have discovery coordinators and E-Discovery specialists who, using complicated programs, guide us through the world of E-Discovery. We use expert witnesses to perform complicated tests and to explain this world to juries.

In the Anthony trial a forensic technologist testified about the process used to trace Casey Anthony’s internet searches for terms like chloroform. Despite efforts to delete the searches, little can be hidden and experts in the field can search the hard drive. Certainly knowing that Anthony may have used the computer to find ways to kill her daughter not only points the finger at her but helps to disprove claims that the death was accidental. ²Her attorneys point out that while forensic technologists can find out what was searched on the computer they cannot prove that Anthony was the one who performed the search.

Following the reversal of the conviction of Senator Ted Stevens for discovery violations by the Justice Department, judges, defense attorneys and prosecutors have discussed means to improve the discovery process.

Some including U. S. District Judge Emmet Sullivan who presided over the Stevens trial want to revise Rule 16 of the Federal Rules of Criminal Procedure which deals with discovery issues so that it requires that United States Attorneys turn over all exculpatory evidence. Currently Rule 16 does not require the government to turn over all exculpatory evidence but the United States Supreme Court in Brady v. Maryland mandated that the government provide all material exculpatory evidence to the defense.

The problem with the Brady rule is that it allows the government to determine what is material and what is not. Since the government is not privy to the defense theory of the case even the U. S. Attorney who conscientiously attempts to provide Brady discovery may fail and their have been enough instances where U. S. attorneys purposely hold back on providing discovery.

The Justice Department came out against requiring the discovery of all exculpatory evidence. Assistant Attorney General Lanny Breuer said that providing all exculpatory evidence “seriously comes into conflict” with victim rights, witness security and, in some cases, national security. Instead he suggested, that while the rule may be amended to bring into one place the current rule and all judicial decisions expanding discovery , current discovery requirements should not be changed. He said the Justice Department would improve training in discovery issues for assistant United States attorneys and would create a position in Washington responsible for improving discovery compliance. Breuer’s comments came at the Judicial Conference of the United States’ Criminal Rules Advisory Committee in Seattle last week.

The final decision will be up to the Judicial Conference of the United States which has control over amendments to the Rules of Criminal Procedure. Its membership consists of the chief justice of the Supreme Court, the chief judge of each judicial circuit, the chief judge of the Court of International Trade, and a district judge from each regional judicial circuit. It generally holds two meetings a year in March and September. It is the principal policy making body of the Federal Courts.

In Boston a Federal judge is threatening to sanction the U. S Attorney’s office after an assistant U. S Attorney (AUSA) failed to provide exonerating evidence to the defense, according to an article in by Altman and Altman in the Boston Criminal Lawyer Blog. The AUSA failed to tell the defense that a peace officer who was an important witness in a drug case had repeatedly contradicted the police report in conversations he had with the AUSA Federal discovery law are much stricter than those of many states but the Supreme Court in Brady v. Maryland ruled that that exonerating evidence must be turned over to the defendant or his/her counsel. And this only makes sense. Certainly a defendant ought to have access to any evidence that can help him/her. But under the Federal regulations defendants sometimes only receive the evidence at the last moment. Therefore it is all the more important that the AUSA give the exonerating evidence to the defense. But according to Chief Federal District Judge Mark L. Wolf the Boston office of the US Attorney has repeatedly failed to turn over significant exonerating evidence and he is threatening to sanction the office or AUSA Suzanne Sullivan for her failure to inform the defense of her conversations with the officer.

At the same time Houston Texas has a new District Attorney, former judge, Pat Lykos. According to another blogger, Matthew Skillern in Greater Houston Defense Law Blog, as one of her first acts in office she announced an open file policy. While the details have not been worked out it is expected that she will allow defense attorney to view and hopefully copy everything in her files. This will allow the District Attorney and the defense to try cases on an open playing field,

Which is more likely to reach a fair decision on guilt or innocence the Boston system in which the cards are stacked against the defendant or the Houston system in which each side starts on a fair playing field.