Most federal cases are resolved with a plea, either with cooperation or without cooperation, only about 5% of federal criminal cases end up going to trial. However, if a person is innocent but is not sure about going to trial for fear of losing, I recommend starting with a full analysis of the case and review all of the government’s evidence, called discovery. Only once it is known what is in the discovery should a decision about going to trial be made. However, there are limitations to this, for example, there are some statements known as “3500 statements”, which are witness statements that the defense will not 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 Fraud 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 GBs 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 fraud cases, the nature of the discovery itself is generally extremely complicated. It could involve various data that people do not understand, data that people cannot 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 the 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 experience handling complex fraud cases for many years. Sometimes I arrange for the jail facility to set up my client with a computer and then mail a hard drive with discovery for my client to review.

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