How Defendants Find Out How a Case Really Began: Brady, Rule 16 and Franks

01Why the starting point is hard to see

A federal case usually reaches the public as a complaint and a sworn affidavit. The affidavit tells a story in order. It almost never tells you everything. Agents routinely write that the affidavit does not set out all of the government's knowledge, and our Mall of America case file shows what that can leave out: the first step.

Parallel construction lives in that space. If a hidden source pointed agents at someone, the paperwork can begin at the second step, with a traffic stop, a tip or an informant. Human Rights Watch's 2018 report “Dark Side” argued that hiding a true source undermines the prosecution's disclosure duties under Brady.

The tools below are how defense lawyers push past the second step. We explain what each one is. Whether and how to use any of them is a decision for the defense lawyer on a specific case.

02Rule 16: the baseline discovery rule

Discovery is the formal process of one side getting evidence from the other before trial. In federal criminal cases, the main rule is Federal Rule of Criminal Procedure 16. On the defendant's request, the government must produce, among other things:

• the defendant's own relevant statements, written, recorded or given in response to questioning by a known government agent, if the government plans to use them;
• the defendant's prior criminal record;
• documents and objects “material to preparing the defense,” that the government intends to use in its case-in-chief, or that came from or belong to the defendant;
• reports of examinations and scientific tests, and written disclosures about expert witnesses.

The limit is written into the rule. Rule 16(a)(2) says it does not authorize discovery of internal government reports, memoranda or other documents made by the prosecutor or agents while investigating the case. Those internal reports are often exactly where the real sequence of events lives. Rule 16(d)(1) also lets the court restrict or delay discovery for “good cause,” and the government can make that showing in a statement the judge reviews privately.

03Brady and Giglio: the constitutional duty

Rule 16 is a rule. Brady is the Constitution. In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that suppressing evidence favorable to the accused, after a request for it, violates due process when the evidence is material to guilt or punishment, whatever the prosecutor's good or bad faith.

Giglio v. United States, 405 U.S. 150 (1972), applied that rule to evidence that undercuts a government witness. The key witness had been promised he would not be prosecuted if he testified. The prosecutor who tried the case did not know. The Court said that did not matter: a promise by one prosecutor is attributed to the government, and the conviction was reversed. Evidence that can be used to attack a witness's credibility is now commonly called Giglio material.

A later case widened the duty. Kyles v. Whitley, 514 U.S. 419 (1995), held that the prosecutor has a duty to learn of favorable evidence known to others acting for the government, including the police. Kyles also restated the materiality test: suppressed evidence counts if there is a “reasonable probability” of a different result.

04The Rule 5(f) Brady order

In 2020, Congress passed the Due Process Protections Act (Pub. L. 116-182). It added a new subsection to Federal Rule of Criminal Procedure 5, the rule on a defendant's first appearance.

Rule 5(f) requires the judge, at the first scheduled court date when both the prosecutor and defense counsel are present, to issue an oral and written order. The order confirms the prosecutor's disclosure obligation under Brady and its later cases, and the possible consequences of violating the order. Each judicial council must adopt a model order that courts may use.

The order does not create a new category of evidence. It puts the existing duty on the record, in a court order, from day one. That matters if a disclosure failure surfaces later.

05The Jencks Act: witness statements, at trial

The Jencks Act, 18 U.S.C. § 3500, governs the prior statements of government witnesses. Its timing is the point. The government cannot be forced to hand over a witness's statement until that witness has testified on direct examination at trial. After that, on the defense's motion, the court orders production of statements that relate to the subject of the testimony.

A “statement” has a specific meaning here: a written statement the witness signed or approved, a recording or near-verbatim transcript made at the time, or grand jury testimony. Rule 16(a)(2) points to the same statute when it excludes witness statements from ordinary discovery.

For origin questions, the Jencks Act can expose inconsistencies between what an agent wrote early on and what the agent says on the stand. It does nothing for a source that never testifies.

06Franks hearings: testing the affidavit

A search or arrest warrant is only as good as the sworn affidavit behind it. In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that a defendant can challenge the truthfulness of that affidavit after the fact.

To get a hearing, the defense must make a substantial preliminary showing that the affiant included a false statement knowingly and intentionally, or with reckless disregard for the truth, and that the statement was necessary to the finding of probable cause. Conclusory claims are not enough; the challenge must point to the specific false passage and come with supporting affidavits or reliable statements, or explain their absence. Negligence and innocent mistakes do not qualify.

If the defendant then proves the falsehood by a preponderance of the evidence, the court sets the false material aside. If what remains does not establish probable cause, the warrant is void and the evidence from the search is excluded.

Two limits matter for origin questions. Franks reaches falsehoods by the affiant, not by a nongovernment informant. And the Court expressly left open whether an informant's identity must ever be revealed after a showing of falsity. That question runs into Roviaro v. United States, which we cover in a separate dispatch.

07The tools side by side

Surveillance cases add one more route. When the government intends to use evidence obtained or derived from FISA surveillance, 50 U.S.C. § 1806(c) requires it to notify the defendant. We explain that statute in a separate dispatch.

08Questions to bring to a defense lawyer

These are questions, not instructions. Only a lawyer who knows the case can say which, if any, apply. Our homepage's Fight Back section has more.

1. What does the discovery we've received say about the very first step in the investigation, and is anything missing between that step and the next?
2. Has the court issued its Rule 5(f) order, and have we made specific written Brady requests about how the investigation started?
3. Do the dates in the affidavit, the reports and any warrant applications line up?
4. Is there any basis to think a statement in the affidavit was false or made with reckless disregard for the truth?
5. Did an informant play a role, and what do we know about payments or promises to that person?

Read alongside our guide to reading a federal criminal complaint.

10Sources

Every fact in this dispatch comes from the documents below. If you spot an error, tell us and we'll correct it on this page.

1. Federal Rule of Criminal Procedure 16, Discovery and Inspection (Cornell LII)
2. Federal Rule of Criminal Procedure 5, including subsection (f) and notes on Pub. L. 116-182 (Cornell LII)
3. Brady v. Maryland, 373 U.S. 83 (1963)
4. Giglio v. United States, 405 U.S. 150 (1972)
5. Kyles v. Whitley, 514 U.S. 419 (1995)
6. 18 U.S.C. § 3500 (Jencks Act)
7. Franks v. Delaware, 438 U.S. 154 (1978)
8. Roviaro v. United States, 353 U.S. 53 (1957)
9. 50 U.S.C. § 1806
10. Human Rights Watch, “Dark Side: Secret Origins of Evidence in US Criminal Cases”, Jan. 9, 2018

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