There are principles of full disclosure under civil procedure that do not exist in criminal procedure. In the civil setting, the defendant is entitled to notice of the plaintiff’s case, which gives the defendant a stronger opportunity to formulate a defense and win at dismissal. The goal is to maintain even-handedness, so in the civil context, the plaintiff must “plead with particularity” and the defendant must respond to the allegations, and admit or deny each one while setting forth its specific defenses.

In contrast, the criminal context is much different. Only under very limited constitutional circumstances must the prosecutor disclose information about his particular allegations against the defendant. Although the defendant’s defenses are protected, the defendant is equally disadvantaged by not knowing the specific details of the prosecutions allegations. What’s more, the criminal verdict may be used against the defendant whereby sanctions can automatically be attached to felony convictions.(1) For example, let’s look at a defendant who finds herself facing criminal charges in an anti-kick-back suit, where there are both civil and criminal provisions.

Common sense dictates that it would not be beneficial for the defendant to disclose details to the prosecutor that may be used against her and the law protects the information that must be provided by the prosecution. Thus, a criminal case is tried with both parties in the “dark.” One can’t help but wonder about the fairness of this when considering loss of liberty may be at stake.

On the one hand, it seems absurd that a civil defendant with only financial concern would have more notice of the allegations against him than the criminal defendant whose civil liberties are at stake. It seems to be that the law overprotects civil defendants and under protects criminal defendants. So perhaps it goes without saying that the goal of even-handedness is more analogous to a trial by ambush when you really consider the rules. But advocates of restricted discovery in the criminal context contend that the “beyond a reasonable doubt” standard of proof in criminal proceedings would be impossible to reach if the prosecutors were to disclose their information to defendants up front.

It is quite the conundrum. One might argue that it is only fair to ensure that all defendants be provided with the same information as a civil defendant to ensure justice is served.

Footnote 1. A crime that provides a possible incarceration of a year or more in the federal system is a felony, regardless of actual jail time.

For more information on healthcare fraud litigation, please contact Linda at 781-272-8001.

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