One of the key challenges facing white collar criminal defendants is the prosecution's ability to shape the narrative of the case through the evidence it chooses to collect and not collect.
In an article for Bloomberg Law, White & Case white collar partners Michael Kendall and Lauren Papenhausen and associate Yakov Malkiel draw on their experience litigating complex criminal cases to share pointers for navigating the Federal Rule of Criminal Procedure 17(c) pretrial-subpoena process. Specifically, they identify pitfalls to avoid in connection with the challenge of how best to obtain the evidence necessary to present a compelling defense.
They write: "Three considerations merit especially close attention: the likelihood that the subpoena application or subpoenaed documents will disclose confidential information important to the defense's effectiveness; the prevalence of ex parte subpoena applications in the forum; and the likelihood... that the third-party subpoena recipient ultimately will reveal information about the subpoena to the prosecutors."
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