In federal civil litigation there is a well-defined procedure for mutual discovery for all parties. Civil discovery has become so extensive and complex that the courts have engaged in efforts to limit the practice, with mixed success. One Eastern District judge recently described the scope of e-discovery in a case before him as “staggering.” The American College of Trial Lawyers formed a task force to study the growing demands of civil discovery and in 2008 issued a white paper calling for reforms including a return to fact pleading.
In contrast, discovery in federal criminal cases is severely limited. The defendant is not entitled to a list of government witnesses, there are no depositions (except in extremely rare situations approved by the court), the use of subpoenas for production of documents pretrial is very restricted, and the defendant’s requests for details of the government’s allegations by means of a bill of particulars are denied by the courts over 90 percent of the time. The sparse criminal discovery is the result of a long-held philosophy by the courts and Congress that if the defendant is provided with a list of witnesses and the evidence against him, the defendant will intimidate the witnesses and manufacture a false exculpatory defense.
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