“Discovery” is the evidence the government has collected to use against a defendant. It is governed by Rule 16 of the Federal Rules of Criminal Procedure and says in substance, “Upon a defendant’s request, the government must disclose [his or her discovery] to the defendant . . .” Rule 16 lists all the information subject to disclosure. It includes items such as statements, physical evidence, documents, tape recordings etc. But Rule 16 does not allow defendants to obtain statements witnesses made against them. Significantly, the rule has no limitation on when you can ask for these items.
Thus, there is no reason why a defendant awaiting extradition in a foreign country cannot, pursuant to this Rule, “request” his discovery before being brought to the United States. Especially when extradition can take months or possibly more than year. Some prosecutors may resist giving over the discovery, taking the position that the request cannot be made until the defendant is physically in the district where he or she is being prosecuted. But this argument is not found in Rule 16.
If I were to experience prosecutorial resistance, I would first obtain an affidavit from the defendant declaring that the defendant has waived the right to contest extradition. This would ensure that the prosecutor could not argue that extradition is uncertain and a discovery request premature. I would then ask the judge handling the case compel the prosecutor to disclose the “discovery.” The equity on this issue is squarely on the defendant’s side.
Whatever the outcome, the defendant and defense counsel will have signaled to the prosecutor that the defendant will not be trifled with, that if there is a reasonable argument to be made at any time, this defendant will make it. While you can personally write the prosecutor and ask for your discovery, it is not practical. The practical way is to hire a lawyer in the United States.
Another way to get your discovery is to ask codefendants in your case, who may already be in the United States, to give you a copy of their discovery. Your lawyer, if you have one, also might be able to get the discovery from their lawyers. But simply asking a co-defendant or their lawyer without the intervention of your own attorney is probably futile.
But defendants should absolutely not be dissuaded from getting their discovery before being extradited to the United States.
David Zapp