Discovery Rules Different for Criminal Defense and Civil Litigators - Barth Daly
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Discovery Rules Different for Criminal Defense and Civil Litigators

Discovery rules are different for criminal defense lawyers than for civil attorneys.  The tactical advantages to the client can be enormous.  That’s why Kresta Daly has helped many civil litigators when their clients are facing criminal accusations.

The only discovery a criminal defense attorney is required to turn over is evidence the lawyer intends to use in their case in chief.   The broad general rule contained in the California Code of Civil Procedure that all relevant unprivileged information is discoverable if appears reasonably calculated to lead to the discovery of admissible evidence has no bearing in criminal cases or investigations. Ms. Daly can engage in broad investigations without having to worry about uncovering evidence harmful to the client.  She can produce only beneficial information to a client’s civil attorney, law enforcement or the court.

Consider the possibilities when, parallel to a business dispute where a client and his former business partner end their business relationship.  The former partners are fighting over who owns customer lists, designs for future products, etc.  when one partner accuses the other of possession of child pornography on a work computer. Ms.  Daly can have a polygraph conducted.  Polygraphs are not typically admissible in court.  Law enforcement, including many district attorneys, consider polygraph results when deciding whether or not to file charges.  Favorable polygraph results can positively influence civil court judges when a judge is trying to decide whether or not to issue an injunction the early stages of litigation.

Ms. Daly conducts the polygraph without telling the Family law attorney the polygraph is going forward.  If the polygraph results are positive Ms. Daly turns the results over to law enforcement and to the family law lawyer.   If the results are unfavorable Ms. Daly never tells anyone about the polygraph.

Ms. Daly might have the same dad undergo a psychological evaluation.  Through years and years of research, psychologists have developed links between specific personality disorders common to people who commit offenses against children as well as many other kinds of criminal conduct.  These profiles are widely accepted by psychologists, law enforcement and courts.  Ms. Daly uses relies on a small group of highly respected forensic psychologists to perform her evaluations.  Different evaluators have different expertise.  While one psychologist is well suited to conducting evaluations where sex crimes are alleged, a different evaluator might be better suited when domestic violence allegations are made and third evaluator is best suited to accusation involving fraud or financial crimes.

If the evaluations are positive and the dad does not suffer personality disorders common to people who view child pornography the results are turned over to law enforcement and the civil attorneys.  On the other hand, if the results are unfavorable Ms. Daly has no legal or ethical obligation to produce them to anyone.  On the contrary, as a criminal defense attorney, Ms. Daly has an ethical obligation not to produce information which would be harmful to her client.  This is a win-win for the client. Ms. Daly can conduct an aggressive investigation and only produce those results which are favorable which can then be used by the civil attorneys.

In one case in which Ms. Daly’s client was accused of possessing child pornography in connection with a business dispute the government provided a mirror of her client’s hard drive.  Ms. Daly brought in an expert not only in computer forensics but also someone who advises foreign governments on computer and internet security.  Her expert was able to explain why and how the client could have been set-up by those who had motive and opportunity to frame her client.

With 15 years of experience and more than 45 jury trials in state and federal court Ms. Daly has built an unparalleled network of experts she can call on to build the best possible defense for her clients.   While Ms. Daly builds a defense to assist her client in preventing or defending criminal charges she can also share beneficial information with co-counsel.  Because criminal defense lawyers have totally different discovery obligations the information Ms. Daly develops can provide the client with the best possible result in their family law action as well.

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