Do Most Federal Criminal Cases End Up Going to Trial?

If a client admits guilt and tells me they want to cooperate, then we will work with the government to get the best deal possible. However—and I cannot stress this enough—we will always review the discovery, because who knows what could be found. I have handled cases wherein the government was alleging something and the discovery showed something completely different; when I brought this to light, the government backed off. It is also important to know what’s in the discovery during plea negotiations, because that will help determine loss amounts and other details of the offense that impact sentencing. No one should ever take the government’s word for it.

If a person is innocent but isn’t sure if they want to go to trial for fear that they will lose and be sentenced in accordance with the sentencing guidelines, I will start a full analysis of the situation and review all of the government’s evidence. Only once it is known what is in the discovery should negotiations begin, depending on the strength and weakness of the government’s case and what type of arguments can be made. It is crucial to see the government’s case. However, there are limitations to this, for example, there are some statements known as “3500 statements”, which are witness statements that the defense won’t get until after the witness testified at trial. This means that most of the discovery will be available with plenty of time to review prior to trial, but not all of it.

Preparing a case for trial is a lot of work. Ultimately, the client must decide whether they want to go to trial or accept a plea deal. A careful review of the discovery can indicate whether one option may be better than the other. Perhaps motions can be filed prior to trial, or some hearings can be held. Sometimes, the strength of the government’s case is unknown until the process begins. There is no easy answer.

Do Attorneys Always Go Through the Discovery in a Cybercrime case with a Fine-Tooth Comb?

No, and there are two reasons: the sheer volume of it, and the nature of it. There is usually about 100 GB of data to review, and not everyone has time to do that—especially if their client is admitting guilt, cooperating, and ready to accept a plea agreement. In cybercrime cases, the nature of the discovery itself is generally very complicated. It could involve programming languages that people don’t understand, data that people can’t make sense of, complex financial documents, etc.

If the case is going to trial, then the attorney will have no choice but to go through all of the discovery. I always review discovery, regardless of whether client is cooperating or going to trial. I usually do it with the client, because even I often need the client’s assistance to make sense of it, despite having a technical background and handling cybercrime cases for many years. I will have the jail facility where my client is being held set them up with a computer terminal and we will send a hard drive. From the office, I will work with the client to review the information, and then we will determine the best course of action moving forward.

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