Discovery is the legal process whereby one party to a legal action goes about learning information known by the other party to the same legal action. From a criminal tax defendant’s perspective, discovery in a criminal case usually begins with a written request submitted with the applicable federal court that requests the court to order the government to provide a bill of particulars to the defendant. The bill of particulars will be ordered by the court because it allows the defendant to prepare an appropriate defense, prevents double jeopardy where the defendant may have been charged a second time for the same previously adjudicated crime, and helps to avoid surprise or prejudice at trial. However, the court will not require that information that is evidentiary in nature be included in the bill of particulars.
Historically courts have required that Taxpayers be provided with the following types of information, where applicable, in a bill of particulars:
- the identity of any co-conspirators
- a description of any means of deception the government was planning on proving at trial
- a description of which of the taxpayer’s records the government copied
Historically Taxpayers have not been entitled to the following information in a bill of particulars because this type of information is considered “evidentiary”:
- alleged dates, times, and places that the taxpayer received items of gross income
- details of a conversation that the government alleged as an overt act that it intends to offer as proof of willfulness
In federal criminal cases, depositions ordinarily are not allowed to be taken of government personnel or other witnesses by the defendant. However, under exceptional circumstances when a deposition is held to be in the interest of justice, the taxpayer may depose a prospective witnesses to preserve their testimony for trial if some doubt exists as to the witnesses availability for appearance at a subsequent trial. Where a court does allow a deposition it might additionally order that any book, document, record, recording, or other nonprivileged material be produced at the time and place of any such deposition.
- In a federal criminal case, the taxpayer is entitled to discover:
- any relevant written or recorded statements the government asserts were made by the taxpayer and the substance of any oral statement made by the taxpayer
- a copy of the taxpayer’s prior criminal record if applicable
- the existence of photographs, books, papers, tangible objects, documents, and buildings and places that are relevant to preparing the taxpayer’s defense, that are intended by the government to be used as evidence at the trial, or that were obtained from or belong to the defendant by the government.
- The results and associated reports of any physical or mental examinations and scientific tests and or experiments that are material to the taxpayer’s defense or that are intended by the government to be used at trial.
Except as delineated above, the memoranda, reports, or other internal documents prepared by the government in connection with the case are not subject to discovery by the defendant. Moreover, statements made by government witnesses can only be obtained in limited circumstances as provided in the Jencks Act. Under the Jencks Act, no statement or report of a government witness in a federal criminal prosecution can be discovered until after the witness has testified on direct examination in the trial of the case at issue. Only after the witness has testified on direct examination, can the taxpayer draft a motion to compel the United States produce any statements of the witness that relates to the subject matter of the testimony given at trial.
Lastly, a defendant can often obtain significant discovery of the government’s case through pre-indictment conferences held with the IRS and Justice Department. I do not recommend attending such a conference without having the protection of criminal tax counsel. Instead of benefiting from discovery you will more likely aid the government in patching up any remaining weaknesses in their case.
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