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The Champion

May 2017 , Page 24 

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A Creative Approach for Obtaining Documentary Evidence From Third Parties

By Alan Silber and Lin Solomon

In all criminal cases, but especially in white collar cases, the importance of a defense lawyer’s ability to have and study documents in the early stages of trial preparation is hard to overstate. If documents material to the preparation of the defense are in the possession of the government, defense counsel will have access to them. However, if the same documents that the defense lawyer needs to examine (to understand if they are helpful or harmful) are in possession of a third party, defense counsel faces unjustified barriers to obtaining the documentary evidence. This article addresses the outdated jurisprudence that has created the obstacle course as well as the reform advocated by commentators and judges.

A hypothetical dramatizes and illustrates the invalid basis of the current jurisprudence most frequently applied to evaluate a defendant’s discovery demands on third parties.

The Hypothetical

The defendant is the CFO and 25 percent owner of a family-owned busin

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