Federal Judicial Center Orientation Series for District Judges Criminal Pre-Trial Proceedings with the Honorable Terry J. Hatter Jr. and the Honorable Michael M. M. Judge Hatter was appointed as the United States District Judge for the Central District of California in 1979. He has previously served as a California Superior Court Judge and taught at the University of Southern California Law Center and Loyola University of Los Angeles Law School. Judge Mim was appointed as the United States District Judge for the Central District of Illinois in 1982. He's a member of the Judicial Conference Committee on the Judicial Branch and the Seventh Circuit Committee on Education. This program will focus on the legal requirements and management principles that apply at critical stages of the pre-trial process in criminal cases. Judge Mim and I hope to leave you with a sense of the kinds of problems you might reasonably expect to encounter pre-trial in the typical criminal case and with some clear suggestions on how to handle those problems. We'll try to keep our discussion as practical as possible. Of course, it just won't be possible for us to cover every single situation that might arise in your courtroom during the pre-trial phase of a case. And even if we could, we wouldn't. That would take part of the fun and excitement of your new position away from you. That's right. But we will be discussing a number of situations and procedures you should know about because they occur routinely in most cases. We'll be referring to the federal rules of criminal procedure from time to time during our discussion. You should, of course, also look to your own local court rules for guidance in these areas. We'll assume that the hypothetical case we're discussing is being prepared for trial and we'll actually go to trial. Having said that, of course, you should understand, if you don't already, that most criminal cases do not go to trial. The percentage of pleas of guilty in criminal cases varies from district to district and from court to court. But overall, approximately 85% of federal criminal cases are resolved pre-trial by a plea of guilty. Nevertheless, we'll assume this case is going to go to trial. And since a plea of guilty can be entered at any point in the proceedings, even during trial, we'll discuss guilty pleas separately in the last segment of the program. It's worth noting, though, that how you handle the pre-trial phase of the case may well determine whether it pleads out or goes to trial. And if it goes to trial, how smoothly that trial will proceed. Ordinarily, the arraignment will be your very first contact with the case. But dependent upon the court and the availability of magistrate judges, you may become involved in the case earlier. For example, you may have to preside at the defendant's initial appearance before the indictment is even returned by the grand jury. On the other hand, it may well be that a magistrate judge ordinarily handles arraignments in your court. If so, then the magistrate judge will need to know your schedule so he or she can properly schedule deadlines, dates for hearings, as well as the trial of the case. The arraignment is, in many ways, a routine proceeding. The bench book at section 1.05 has a good discussion of what needs to be addressed with the defendant at that time. For example, you must be sure the defendant has received a copy of the indictment or information, knows what the charges are, and enters a plea of either guilty or not guilty to the charges. The bench book tracks the requirements of Rule 10 of the Federal Rules of Criminal Procedure, which governs arraignments. Among other things, Rule 10 requires that the indictment or information be read to the defendant, or that the substance of the charge be stated to the defendant. That's true, but as the bench book suggests, you can ask the defendant whether he wants the indictment or information read, or if he will waive that reading. And you may be pleased to know in the 12 years that I've been a judge, no defendant has ever stood on his or her right to have the indictment read. That's right. As a practical matter, the reading of the indictment is almost always waived. One of the major events that normally does occur at the arraignment, or should, from a case management standpoint, is setting the schedule for the rest of the case. That's the point at which you begin to set the ground rules by giving the attorneys a certain period of time to file pre-trial motions, ordering opposing counsel to respond by a certain date, setting a hearing date for those pre-trial motions, and setting a trial date. Many districts have an omnibus local rule or standing order that governs scheduling of these matters, as well as pre-trial discovery. And you should consult that rule before setting dates. Judge Hatter, does your district have such a rule? It certainly does. In fact, our local rule is much like yours. And in addition, I have my own standing order that sets out the dates, and I suggest that you do the same. Now, it may be that many of the matters you'll be handling at arraignment will be routine, but there are several other events of great significance that also occur at arraignment. For example, if the defendant appears at the arraignment without an attorney and you are satisfied that the defendant cannot afford to hire his or her own attorney, you may have to appoint counsel for the defendant. If possible, you should make this decision and appoint counsel prior to the time the defendant is asked to plead guilty or not guilty. If the defendant is not represented at the arraignment, you should appoint counsel at that time. Or you can set a deadline by which the defendant must appear in court with private counsel so that the arraignment may be completed. Also, you may have to review the magistrate judge's ruling on bail or pre-trial detention or make initial rulings on these matters yourself at arraignment. In addition, the time limit set by the Speedy Trial Act normally began to run at arraignment if they have not already begun to run. Let's spend a couple of moments talking about the basic requirements of the Speedy Trial Act which is found beginning at Title 18, Section 3161. The Act requires that an indictment or information be filed within 30 days of arrest or service of summons. Also, the defendant's trial must begin within 70 days of the filing of the information or indictment or within 70 days of the defendant's first appearance in court, whichever is later. You need to educate yourself carefully regarding the requirements of the Speedy Trial Act. Don't simply rely on the representations of the Deputy Clerk or the Assistant United States Attorney or Defense Counsel. It's also important to note that under the Act, a defendant's trial cannot begin less than 30 days from the date on which the defendant first appears through counsel or expressly waves counsel and elects to proceed, per se. As a practical matter, it would be very, very rare to have any case go to trial anywhere near that 30-day minimum requirement. The reason for the rule is obvious. To force a defendant to trial in less than 30 days and presumptively interfere with the defendant's ability to prepare a defense. The requirements of the Speedy Trial Act are very stringent. At the same time, however, the Act recognizes that events may occur during the pre-trial process that should toll the running of the 70-day Speedy Trial Clock. These events are called excludables. Delay caused by an excludable event is called excludable time and is excluded from Speedy Trial Act calculations. An example of an event that would result in excludable time would be the defendant's filing of a motion to suppress evidence. This would have the effect of tolling the Speedy Trial Clock until such time as the court receives everything it needs to rule on the motion. Sometimes the defendant will offer to waive the Speedy Trial Act. Remember, the Act is not waivable. And by the way, I don't think you should just study Section 3161. I'm thinking here about the special rules contained in Section 3164 concerning the time a defendant can be detained without bail while awaiting trial. That's a good point. Section 3164 allows a defendant to be detained without bail while awaiting trial for no longer than 90 days as opposed to the 70-day time limit imposed by Section 3161. The 90-day limit on detention without bail begins to run on the date the defendant is first detained. And it applies to a period of continuous detention only. We mentioned earlier that you may have to appoint counsel for the defendant at arraignment. The appointment of counsel in a criminal case is, of course, a very serious matter. The law requires that unless the defendant has knowingly and intelligently waived the right to counsel, then the defendant must be represented by an attorney. The law also requires that the attorney provide effective counsel to the defendant. Very often, counsel will be appointed by the magistrate judge at the initial appearance. However, it will not be unusual for you to have to appoint counsel or consider the question of substitute counsel at the arraignment. This brings us to the Criminal Justice Act, or as you will come to know it, the CJA. The Criminal Justice Act is found at Title 18, Section 3006A. It allows you to appoint a federal public defender or a CJA panel attorney to represent the defendant if the financial affidavit filed by the defendant shows that the defendant cannot afford to hire an attorney. Most large urban areas have a federal public defender and will handle the defense in most of your indigent defendant cases. However, in my district, which is a small district, I have never had a public defender case in my court, although technically we do have a federal public defender assigned to a large area which includes our district. So we appoint counsel from the CJA panel list. That is a list of private attorneys from the local community who have been approved by the court to represent defendants under the Criminal Justice Act. I think it's important to realize that the inquiry into the financial status of the defendant needs to be something more than cursory. I fully agree. You really do have a duty to scrutinize the defendant's financial affidavit. In many cases, you will want to supplement the information on the affidavit with oral questions put to the defendant while he or she is on the road. Sometimes it's obvious that the defendant has absolutely no assets and that appointment of counsel is appropriate. But on other occasions, the defendant's financial situation may be a little more borderline. You may also have a case from time to time where you deny the request because you find the defendant has the money to hire a private counsel. Remember, if you determine at any time during the course of the case that the defendant is able to pay part or all of the cost of the court appointed attorney, you can order him to make that partial or total payment. I'd just like to add that although a defendant is entitled to be represented by competent counsel, a defendant is not entitled to have his or her own private counsel appointed under the Criminal Justice Act. Nor is the defendant entitled to select an attorney of choice from the CGA panel list. In fact, I would suggest in the strongest possible terms that it would be a very bad precedent for you to allow either of those things to occur. Once you determine that it is proper to appoint counsel to represent the defendant, you must consider which particular lawyer should be appointed. For example, what if the attorney appointed by the court to represent the defendant has a potential conflict of interest with a co-defendant already before the court in the case? That would of course raise a host of problems relating to the issue of effective assistance of counsel. And the bottom line is you should take great care to ensure that you don't appoint an attorney who has a conflict of interest or even a potential conflict of interest with a co-defendant in the case. Related to this is the serious problem of joint representation in a criminal case. Rule 44C provides that whenever two or more defendants have been jointly charged or have been joined for trial and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel. Of course the court must be very sensitive to this concern when appointing counsel, but the concern would be the same if two or more defendants come into court represented by the same attorney who has been privately retained. That's correct. Concerns about joint representation are covered exceptionally well in the bench book under Section 1.22. You should also be familiar with the case of Wheat v. United States, cited in your outline, which discusses the tension between the defendant's right to choose his or her own counsel under the Sixth Amendment and your discretion to prohibit joint representation in cases where there is an actual conflict of interest or where there is a potential conflict of interest that may realistically be expected to develop into an actual conflict. I think the situations where the court should allow joint representation are extremely rare, if not nonexistent. To allow it is to set the stage for the almost inevitable falling out that occurs between co-defendants if they are convicted and the consequent finger pointing that follows with each convicted defendant now represented by a separate attorney or law firm claiming it was a reversible error for you to allow joint representation in the first place. And it will almost certainly result in a hapeous filing by the convicted defendants, arguing that because of an actual conflict of interest that developed, each of them was denied the effective assistance of counsel. Another possible conflict of interest arises if a defendant requests to be represented by the same attorney or the same law firm as an unindicted co-conspirator, or by the same attorney who represented or presently represents a witness who is going to testify for the government. Yet another troublesome situation occurs when the lawyer for one defendant is paid for by a co-defendant. This raises serious questions regarding whether both defendants are truly represented by independent counsel. That's right. You must engage in a meaningful dialogue with the defendant regarding possible conflicts of interest. Others may disagree, but in my opinion, this is not a task that you should ever delegate to a magistrate judge. The record you make at that point in the pre-trial stage will set the scene for later consideration of this issue by the Court of Appeals. The bench book lists a number of specific problems that may arise as a result of dual representation of co-defendants. It does, and I think we both agree, that it's important to discuss those specific problems with the defendant and not just use conclusive terms like conflict of interest. As a practical matter, you must understand that when discussing a possible conflict of interest situation, it's important that you discuss the issue with the attorneys and with the defendant directly. It's essential to the protection of your record that you engage in a meaningful dialogue with the defendant. That means something more than just having the defendant simply answer yes or no to your questions. You should explain how in specific circumstances the conflict could affect him or her adversely, for example with plea negotiations or cross-examination. You should insist that the defendant clearly indicate his or her position regarding the possible conflict on the record in a narrative fashion. That way, the argument cannot later be made that the defendant was simply going along with what was happening by answering yes or no. Also, you should involve the Assistant United States Attorney in this dialogue. Another sensitive situation arises when a defendant informs you that he or she wishes to waive the right to consul and proceed pro se. This can develop as early as the defendant's first appearance in court or as late as the sentencing hearing. This matter is discussed at section 2.01 of the bench book. I would suggest that you caution any defendant in the strongest possible terms not to represent himself or herself. Of course, as the bench book indicates, an accused does have a constitutional right to self-representation. That's right, but in order to exercise that right, the defendant must waive the right to the assistance of consul. And any waiver of the right to consul must be knowing and voluntary, which is why you must make the defendant aware of the hazards and disadvantages of self-representation before he or she elects to proceed pro se. It is in that context that I advise you to tell the defendant in the strongest possible terms not to proceed pro se. I might add that it's important to make a clear record on this matter too, because if you allow the defendant to proceed pro se and there is a conviction, there is a strong likelihood that one of the issues on appeal will be whether or not you acted properly in allowing the defendant to proceed pro se. There are many sub-issues that arise under this heading as well. For example, you'll also need to determine whether the defendant's level of mental competency is sufficient for the waiver of consul to be knowing and voluntary. But suppose you have found that the defendant has made a knowing and voluntary waiver of the right to consul and may proceed pro se. You may still decide to appoint an attorney to act as advisory consul to the defendant. In other words, don't be surprised if your pro se defendant wishes to seek legal advice concerning the filing or argument of motions or how to handle certain procedural matters. Appointing standby or advisory consul to assist a pro se defendant with these matters will help avoid some of the delays often associated with pro se litigation. What happens if the defendant's motion to waive consul and proceed pro se occurs after the trial begins? That's a good question. There's case authority in several circuits that unless a pro se motion is made in a timely manner, that is before trial has begun, it is considered waived. Now let's talk for a few moments about some basic provisions of the Bail Reform Act. As we stated earlier, it's usually the magistrate judge who sets bail or orders that the defendant be detained pending trial at the defendant's initial appearance or shortly thereafter. But it won't be uncommon for you to receive an appeal from the magistrate judge's ruling on bail. So you should be very familiar with the requirements of the Bail Reform Act. The Bail Reform Act requires every accused to be released without posting bail or meeting special conditions unless the judicial officer finds that the defendant is likely to flee, endanger the safety of another person or endanger the community. It also gives the court the authority to release a defendant subject to one or more conditions. The conditions are designed to assure the appearance of the defendant, the safety of others, and the safety of the community. Some examples of release conditions are that the defendant's travel be restricted to the federal district where the case is being prosecuted, that the defendant not have any contact with government witnesses in the case, or that the defendant submit to urine testing upon demand of the United States probation officer. Given the high percentage of drug prosecutions that we have in our courts, it is very common to include a condition requiring drug testing or treatment while the defendant is on bond. Of course, the defendant may also be detained prior to trial under the Bail Reform Act. Section 3142F of Title 18 provides that on motion of the government in certain types of cases the judicial officer shall hold a detention hearing. The purpose of the hearing is to determine whether any condition or combination of conditions would reasonably assure the appearance of the defendant as required and the safety of any other person in the community. The government may file that motion only in certain enumerated circumstances, such as when the defendant is charged with a crime of violence, an offense carrying a maximum sentence of life imprisonment or death, or a drug charge carrying a maximum term of 10 years or more. A detention hearing may also be held either upon motion of the government or upon the district judge's own motion, in a case involving a serious risk that the defendant will flee, obstruct or attempt to obstruct justice, or threaten, injure or intimidate a prospective witness or juror. The law requires that the detention hearing be held at the defendant's very first appearance, and that the defendant or the attorney for the government seeks a continuance. The burden of proof is on the government at a detention hearing. The government must establish by clear and convincing evidence the facts used to support a finding that no condition or combination of conditions will reasonably assure the safety of any other person and the community. Subsection G of section 3142 sets forth the factors the court is to look to in determining whether or not bond is appropriate. That's right. It's a fairly exhaustive list, although not an exclusive list. It includes such things as the nature and circumstances of the offense charged, the weight of the evidence, the history and characteristics of the person, and the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. In the next few weeks, a pretrial services officer will do a background investigation of the defendant on an expedited basis and prepare a report and recommendation for you on bail or detention. You'll find that report quite helpful in making your decisions in this area. If the detention issue does come to you by way of an appeal from a detention order issued by the magistrate judge, you need to review that detention order carefully. You should be sure the magistrate judge allowed the parties a full opportunity to present their positions and that he or she properly considered the factors enumerated under section 3142G. If you are reviewing what the magistrate judge has already done, it will be helpful if you have a transcript of the earlier proceeding. You can read that over very quickly and get some background on the bond issues before considering any new information the parties present. It may be that by the time the matter gets to you, both sides have developed additional information, having a bearing on the appropriateness of bond. In any event, once a determination has been made regarding detention, the matter can be reopened at any time before trial. If the judge finds there is new information, information not known to the movement at the time of the initial hearing, that has a material bearing on the issue of whether or not the defendant should be released. And remember, if the defendant is detained, keep in mind the requirements of the Speedy Trial Act that apply to detained defendants when scheduling the case for trial. Let's talk a little more about the schedule you'll be setting at Arraignment. That schedule should always be tailored to fit the needs of the case. In a co-defendant case, for instance, the defendants will not necessarily be arraigned at the same time, or even on the same date. Defendants C may not even be taken into custody until three or four weeks after defendants A and B are arraigned. In some cases, the defendants will be detained prior to trial, and in others, they will be released on bond. Your schedule must take such case-specific factors into consideration. On the other hand, I'd suggest that the schedule you impose always include a date for a hearing on pending motions followed by a pretrial conference. This ensures that at the very next court hearing, at the conclusion of the hearing on motions, the parties can begin to engage in meaningful dialogue with the court regarding the trial itself. Of course, it's important that you let the lawyers know exactly what you want them to accomplish before and during the pretrial conference if that conference is going to be productive. Judge Mem and I have some suggestions we'd like to pass along to you that in our experience have helped paved the way for a useful pretrial conference. First, at the Arraignment, you should have an in-depth discussion with the attorneys on the status of discovery. Find out exactly what remains to be done to complete discovery and ensure timely delivery of discoverable materials. Establish a deadline for the completion of discovery. I would suggest setting a deadline for completion of plea bargaining as well. Of course, every judge has his or her own view on the question whether the court should place a deadline on plea bargaining. We'll talk more about that later. You should also set deadlines for the filing of motions by defense counsel and responses by the United States. These deadlines, as well as the motion hearing date and the trial date, must be set with the Speedy Trial Act in mind. Many judges use a preprinted memo or handout setting forth their policies on all of these kinds of matters. Whether you feel that such a handout is a time saver and would be appropriate in your court is entirely your own decision. What's your practice, Judge Memm? Well, in my district, we have an omnibus order that governs pre-trial discovery in criminal cases. I generally take the order and modify it to meet the needs of the case before me. Let's say it's a conspiracy case. If a defendant files a motion asking for a pre-trial ruling on the admissibility of alleged co-conspirator statements, the procedure I follow is to order the government to file a written proffer by a certain date. In that proffer, it must set out the proof it believes will be presented at trial to establish the existence of a conspiracy and the defendant's membership in it. I then set a deadline for the defendants to respond if they object to the adequacy of the proffer. If there is an objection, I'll resolve the matter at the hearing on pending motions. In my district, we have an order addressing the timing and method of preparing jury instructions. I use the pre-trial conference to flush out any problems counsel might have in complying with this order. Working within the framework you have established, the prosecutor and defense attorney should complete discovery between arraignment and the time of the pre-trial conference. But as Judge Hatter will tell you, discovery in a criminal case is substantially different from discovery in a civil case. It certainly is. Under federal rule of criminal procedure 16, the defendant simply does not have access to every piece of paper the United States has in its file. Rule 16 provides that upon the request of the defense counsel, the prosecutor must disclose certain evidence if it is in the possession, custody, or control of the government, or if the existence of the evidence is known to the government or can become known by the exercise of due diligence. Discoverable evidence includes such things as the defendant's own oral, written, or grand jury statement, the defendant's prior record defending, and documents and tangible evidence in the government's possession if they are material to the preparation of the defense, intended for use as evidence by the government in its case in chief at trial, or obtained from or belong to the defendant. In addition, the defendant is entitled to discover the results and reports of physical or mental examinations, scientific tests, or experiments if they are material to the defense, or are intended for use as evidence by the government in its case in chief at trial. After the defense requests this information and the prosecutor discloses it, Rule 16 allows the government to make a request for reciprocal discovery of similar evidence in the defendant's possession. We should also note that Rule 16A2 specifically provides that certain items are not subject to disclosure. These include reports, memoranda, or other internal documents made by the attorney for the government, or other government agents in connection with investigation or prosecution of the case. Also, under Rule 163, grand jury transcripts are not subject to pre-trial discovery. Federal rules of criminal procedure 12.1 and 12.2 also address discovery matters. Rule 12.1 imposes certain notice requirements upon a defendant intending to raise an alibi defense. Rule 12.2 imposes similar requirements upon a defendant intending to raise a defense of insanity or introduce expert testimony relating to a mental condition bearing upon the issue of guilt. The notice requirements of these two rules are quite specific, and you should review them carefully. Any other discovery issues we should cover? How about confidential informants? All right. It is not uncommon for the government to work with a confidential informant in developing its case. In such cases, the defendant becomes very interested in learning the identity of the informant prior to trial. The basic ground rules regarding whether or not the government should be ordered to divulge the identity of a confidential informant are contained in Roviero v. the United States and the cases following it. Those cases require you to balance the government's interest in protecting its informants against the defendant's right to prepare a defense. Essentially, the cases distinguish between tipsters, that is, informants who call the police with information about a criminal offense saying, I heard so and so did this or I have information that this happened, and informants who are actual participants in the alleged criminal conduct are witnesses to material events relating to that conduct. Obviously, if the informant were a necessary party to the criminal conduct or participated in the criminal conduct, the scale tips very heavily in favor of ordering the government to divulge his or her identity. Let's say, for example, the informant was a necessary party to an illegal drug sale, and the defendant wishes to present evidence of duress or entrapment resulting from the informant's behavior. I think in that instance, fundamental fairness would dictate disclosure of the identity of that informant at the pretrial stage. This issue will usually come to your attention in the form of a pretrial motion. Typically, the defendant files a motion asking the government to divulge the existence and identity of any informants. If the informant is no longer confidential, you don't have a problem. The government will divulge his or her identity. However, if the government feels that because of an ongoing investigation or specific concerns about the safety of the informant, the identity should not be divulged. They will resist it. At the motions hearing, you'll have an opportunity to hear evidence and argument on the issue before deciding whether or not to order the government to divulge the identity of its informant. Many of you may already be familiar with the term brady material. That term is derived from the basic rule of Brady v. Maryland. That case holds that the government has a duty to divulge to the defense information or evidence in its possession, which is favorable to the defendant on the issues of guilt or punishment. The disclosure of brady material to the defense is required by the Constitution, not Rule 16. But the obligation to disclose is contingent upon a request made by the defendant. This request should be as specific as possible. The evidence being sought by the defense must also be material. That is, the mere possibility that the evidence might aid the defense or affect the outcome of the trial does not establish its materiality. For example, if a government informant has given conflicting statements to different law enforcement agencies and matters of material interest to the defendants, then both statements should be turned over to the defense, whether the government intends to call the informant or not. The statements would be considered brady material. The prosecutor's duty to disclose requested brady material is ongoing. But the prosecutor and defense attorney may have different ideas about the timing of such disclosure. You must exercise your discretion carefully in ordering when brady material is to be disclosed. For example, any brady type information that would reasonably be expected to result in additional defense investigation or preparation for trial should be disclosed early in the case. Obviously, late disclosure of that material and late in this context means shortly before trial could result in a need to continue the trial date. Finally, while brady does impose a significant duty on the government, remember, it doesn't require the prosecutor to give the court or the defendant a detailed account of all investigatory work done on a case. As you can see, if the defendant in a criminal case has not given the right to discover a certain type of information by rule 16, by statute, or by case law, then the right to discover that information just does not exist. For example, defendant is not ordinarily entitled to receive an FBI agent's report during pre-trial discovery. The rationale behind this limitation on the flow of information is that requiring the government to reveal the identity of its witnesses or to turn over such things as witness statements or grand jury transcripts would place the safety of the government's witnesses at risk. Unfortunately, if the U.S. attorney in your district follows a policy of providing only the information required by law, you're likely to wind up litigating discovery issues in a good many cases. What's the policy in your district, Judge Mem? In my district, the U.S. attorney follows what's called an open file policy in most cases. An open file policy is pretty much what it sounds like. The U.S. attorney represents to the court that the government will turn over to the defense any information it has about the case, including information not required to be turned over by Rule 16 and the Jinx Act. We'll discuss the Jinx Act a little later, but count yourself lucky if your U.S. attorney has an open file policy. What's the policy in your district, Judge Hatter? Fortunately, the U.S. attorney in my district also follows an open file policy. And in my experience, open file discovery facilitates the exchange of information without giving rise, in most cases, to any concerns about the safety of government witnesses. Of course, even in an open file situation, the government may still reserve the right to withhold specific information. In that case, it will notify the court that certain information is being withheld and indicate why it's being withheld. This is usually information that would not otherwise be available to the defendants anyway. In my view, if the defendant has a full understanding of the strength of the government's case early on, it will facilitate plea bargaining. It's also been my experience, and I'm sure Judge Mem will join me in this comment, that full discovery facilitates the presentation of the case of trial. I certainly agree. If you have to stop the trial every time the government finishes questioning an agent on direct examination so that the defense attorney can examine the agent's report prior to cross-examination, then it's going to take you a lot longer than you'd like to try that case. Depending upon the situation, much of the discovery process is conducted informally. But to the extent disputes over the scope of discovery arise and result in discovery motions, those disputes must be resolved by the magistrate judge or the district judge.


In the darkest chapter of German history, during a time when incited mobs threw stones into the windows of innocent shop owners and women and children were cruelly humiliated in the open, Dietrich Bonhoeffer, a young pastor, began to speak publicly against the atrocities that the regime had produced. After years of trying to change people's minds, Dietrich Bonhoeffer came home one evening and his own father had to tell him that two men were waiting in his room to take him away. In prison, Bonhoeffer began to reflect on how his country of poets and thinkers had turned into a collective of cowards, crooks and criminals. Eventually, he concluded that the root of the problem was not malice, but stupidity. In his famous Letters from Prison, Bonhoeffer argued that stupidity is a more dangerous enemy of the good than malice because while one may protest against evil, it can be exposed and prevented by the use of force. Against stupidity, we are defenseless. Neither protests nor the use of force accomplish anything here. Reasons fall on deaf ears.    If we want to know how to get the better of stupidity, we must seek to understand its nature. This much is certain. Stupidity is, in essence, not an intellectual defect, but a moral one.    It becomes apparent that every strong upsurge of power, be it of a political or religious nature, infects a large part of humankind with stupidity, almost as if this is a sociological-psychological law, where the power of the one needs the stupidity of the other. The process at work here is not that particular human capacities, such as intellect, suddenly fail. Instead, it seems that under the overwhelming impact of rising power, humans are deprived of their inner independence, and more or less consciously give up an autonomous position.  In conversation with him, one virtually feels that one is dealing not at all with him as a person, but with slogans, catch words, and the like that have taken possession of him. He is under a spell, blinded, misused, and is abused in his very being.  Only an act of liberation, not instruction, can overcome stupidity. Here, we must come to terms with the fact that in most cases, a genuine internal liberation becomes possible only when external liberation has preceded it.  Bonhoeffer died due to his involvement in a plot against Adolf Hitler at dawn on the 9th of April 1945 at Flossenberg concentration camp, just two weeks before soldiers from the United States liberated the camp. Action springs not from thought, but from a readiness for responsibility. The ultimate test of a moral society is the kind of world that it leaves to its children, Bonhoeffer once said. Check the description below to read Bonhoeffer's original text after 10 years. For more information about Bonhoeffer or to download this video without background music, go to SproutSchools.com. Sprout's videos are published under the Creative Commons license. That means our videos are free and anyone can download, edit, and play them for personal use. And public schools, governments, and non-profit organizations can also use them for training, online courses, or designing new curriculums. To help us stay independent and support our work, you can join our patrons and contribute. Just visit patreon.com slash sprouts. Even one dollar can make a difference.


Yes, thank you so much. Well, thank you for having me. So it's indeed. It's the last of the day So it's like outside and I saw like a lot of people already drinking beers and stuff So it's like I hope that there are still people in the room. So thank you for listening So this is like a last year my my colleague a channel was here and he he presented for the first time we've ate I'm what we're trying to do and we've done a lot in the year So today I want to I want to show you actually an update and and way more things about we've yet And a lot of things have changed also the things that we've changed into so quickly the agenda what I want to talk about So first I want to talk about what it is because they were you know, we're new we're new on the scene So yeah, so what is it? Secondly, I want to talk about what has changed since last year or presented here and this year I want to talk a little bit of the about the technology and last but not least of course I want to give a demo. I want to show it in action. All right, so that's the that's what I'm going to do So first about the about we've hit so we hit is an open-source smart graph That's what it is and what we mean with that. Well the fact that it's open source. That is the usual suspects, right? So source lives on get up, but you can use that using docker docker compose and Kubernetes So we have that all out of the box for you It is smart because of something which we call the Contectionary and if you never heard about the Contectionary that's fine because we invented it And I'm about to explain to you what it is or it does And I want to use I'm going to use one buzzword Sorry for that, but what I what is it has a serious? It's it has serious notion So sometimes people talk about like the AI first architectures So like can we build systems that have like these machine and models built into them that we can build new solutions? And actually new ideas and that's what we try to solve with semantic models So what makes it in our case what we like to call smart is the building semantic model and the graph is well I don't have to in this room. I don't have to you know shared through what the graph is But the we we've chosen to use graph QL and the reason why it's done that is because we see of course There's like a lot of a graph experts, you know you sparkle or sorry for those kind of things But sometimes when we have developers who find it a little bit more difficult We see that they really like to work with graph QL So we really embrace graph QL and it's like completely 100% graph QL based So that's how we define what our smart graph is and with a smart of you can do three things first thing is semantic search So what you can do and that's also what I will demo to you Well, we know from traditional search if I may call it like that we search for keywords, right? So if we write about The company Apple we actually need to search for Apple But in we if you don't necessarily have to so if you add company with the name Apple But you search for example, what's the company the business related to the iPhone it will still find your data object company with the name Apple We also can do based on that is automatic classification So we can automatically make edges in the graph based on the semantics of your data objects and last but not least we can do knowledge representation and this is often what's always also referred as like nowadays Hey, it's like as the knowledge graph, but it's like I wouldn't say we're necessarily a knowledge graph But the you can create those similar Representations so those are the three things that the three use cases that we can help you with so something important to share Based on what we did last year So the best way to explain is a little bit on time and what I mean with that is like that We saw of course a lot of databases in the past that were more relational base, right? So just you know a road column structure row column structures and tables and then of course we got these Graph databases so for example I had the people from they are in room So they made a beautiful beautiful database like that and we chose a year back to store our information with Janice and what we did was that we had that semantic element that what I will explain the context And I will explain what that is. We had that as a feature But last year we decided to just double down on that semantic element. So we got completely rid of the Implementation Janice and we create basically everything ourselves and we that means that we now only have that Contextionary to store that information in and We've actually this is a crown so we actually figured out like this is actually We're really happy that we made that decision because now we could really bring something new You know to the to the stage something different and a different way to handle your data objects and work with them So we store everything in a semantic space That's what we do and now if you go like wall semantic space. I'm gonna explain what we mean with that So but just keep thinking when I talk about semantic space. I'm talking about the Contextionary So imagine it like this if you go to a I'm compliant as you can see let's say if you go to a grocery store and you have a shopping list and on the shopping list You might have four items a banana Washing powder you're looking for an apple and a piece of bread So if you go in the supermarket and you find the banana You know that an apple is gonna be closer by than the bread or the washing powder And if you move towards the bread, you know that you're actually getting closer to the washing powder and moving more away from the fruit That's how we store data in the space and so that's the metaphor to actually imprint The problem that we solve and we do that to something that we that we call the Contextionary and I want to give you a little bit of background where we're coming from and What's different to other? solutions that around here, so if you go all the way back again time to the to the 1950s it was like a famous quote and I said like a word can be characterized by the company keeps and But that basically means that you would say that the word Paris would be more closely related to France than it would be to Holland for example or the US and New York would be more closely related to the US then for example Spain and that basically went for all words and a lot of research was done there and then we Jump forward and then with the whole machine learning boom We saw there was a lot of work being done with with based on machine learning and these word embeddings And then what we also saw there was and it was like we got first word to back Got glove and nowadays have what they call in the academic realm, which they call a state of the arts called bird But if we now put on our engineering ahead, we really fell in love with glove and why did we fall in love with glove because Bird has multiple representations of a word in that data set, but the glove doesn't glove has one vector representation for every word and the critique that it often got was that well If you for example have to name Apple Apple can mean of course fruit, but it can also mean the company and That we wanted to solve the problem in a different way But as engineers we were very happy with this because now we could index it We could index those words in a storage mechanism So if you start a we V8 you can imagine it like this It's an empty space that you start you choose a language not a programming language, but a spoken language so let's say for example English and The space is filled with all those words So for example if you find Apple you find nearby fruit you find nearby company And you might also find iPhone and these representations that we store they have a 600 dimensional representation, which is very fancy, but just it has to do with compression that kind of stuff and The thing that we did is this If you store a data object like this So for example the class company with the name Apple found it in 1976 etc and in when I demo I will show you how that actually works But if you send information what we V8 does It then it creates a string of the words and the concepts that are in there and it takes those concepts And it funnels them down. How does it do that? It says like it takes the Euclidean distance It combines it with the it's this sounds very fancy But with the logarithmic function based among the occurrence of the word So for example company might occur less often than the word Apple so then we say the word company is more important And then we even work with word boosting so that you can say certain words are important in my data object But what we do with that is that we create our first First object in our graph and it gets its own factory presentation So now if we have an empty V8 with those words in that and we store our first Data object as you can see there. There it is It lives that's where it lives in the vector space. That's what we mean so now if we query for let's say a Company and iPhone it can look in the nearby space and find the data object so now without even having iPhone in the data object we can still find it and That's the thing that we created that we thought like hey This is this is our thing right? This is our our golden goose egg because now we have different ways of creating graphs and actually query through them So this example for example might look something like this So if I have a data set with companies and this would be my graph QL Okay, where I said it get give me things which are companies and I want to have their names But explore them by iPhone. I might forget this result Apple and as you see iPhone is nowhere in the data object and If I have that same that that I said then we say well a little bit more abstract organize these companies On the concept of Redmond. I might get back Microsoft and that's how we structure our graph so and So that's basically what what we've hit is and as a developer we've yet comes with a few features So the first thing is that's that's contectionary comes all out of the box You don't have to do your training. You don't have to set it up. Whatever. It comes all out of the box Or basically a lot of the container I should say Adding that I happen to the HTTP API, but calling data to the graph QL API It's completely containerized so you can run it wherever you want And because we use that vector space. It's very very scalable You can skill this that space very very tremendously big So I think the biggest one that we ever tried was a few was a few billions It gets pretty big and something that we have in the pipeline and maybe I can show you that next year But is that we also can create peer-to-peer networks of v v8 So that we can point to semantic elements in different graphs so that we don't have to agree anymore on our ontologies Or on our schemas, but that's like that's that's in the make So a little bit about graph QL. So I have so when I demo that so how we structure our you a graph here this is the The UX if you will over graph QL So we have a get function first the other one is an aggregate function, but I'm going to talk about the get function We have a semantic kind which we make a distinction between things and actions now in some verbs We have the class the classes of the property a property might have a reference and then the property itself And what you can do you can have these semantic filters on top of that. So there you see for example the explore Filter and they can search for concepts, but you can even move away from concepts of move towards concepts And I will demo that to you in a bit Well demo so now we get to the demo so now you might want to say how does that actually look so what I did is that I spun up a a Docker container if you want to do it yourself if you go to our website send me that technology and then you simply click We've yet and then you find all the documentation The installation gives you just a we've yet But what I'm going to demo to you is this news publications that are set and if you click that one There's just one simple docker compose comment that you can run that you can play you know around with it yourself So there's a meta endpoint, which I'm just running just to make sure yes, so that is running well So let's first look at a schema. So this is an example of schema So here you see I have the class publication and I have I have the name name So the name of the publication but for example So I said the headquarter geolocation, which is our geo coordinates has articles etc. This is how we structure the schema this key That's important because we will see that back when we use GraphQL to query and the things that we actually store Look like this. So for example, you see an article the article has an ID a Beacon is a reference in our graph But why do we call it beacon because we do it in the space? So it's a beacon in the space and Then here you see for example a summary of the article the title of the article and the URL where the article actually comes from So that's how it's structured. So we've created a simple GUI that you can use to actually You know look through and search to the to the graph so you can visualize stuff, but I want to I want to dive into the The GraphQL queries. So let me show you a simple query. So if I say get Things and I want to have I want to have a publication and I want to see the name This would be a valid query that you see rising folk financial times wired New York an economist, etc Now what I now can do is that I can say well, I Want to oh I Want to explore for the concept let's say business and I'm going to limit it to three results just that it's easier readable. So I now say do the same query but explore based on the concepts of Business so if I now run this query you see financial times the New York Times International Times, etc But you see the word business the the method that it's nowhere there. That's what comes from the Contextionary or If I would say fashion and I would run it they you see it starts for example with Vogue So that's how we've structured it and how it works But that's not not only going for like small strings, but also for large larger text objects So for example, if I would say get things article and I would say show me the Title of the article and run the query. So now you see all these articles about a variety of topics You see Brexit so you can see when we when we actually pulled to that end But it's just a variety of topics in here But if I now say well, I want to have those articles I'm going to use the explore function again, and I get I say well, I want to explore for the concepts. Let's say Music and I'm going to limit the results again just for the sake of readability So same query but now based on the articles. So if I run this you say like you see fair enough The first one has the word musical, but then it's about When Stephanie and then it's about John Lennon. So you see the word music is not necessarily in there But it organizes it like that automatically So now even if you want to filter further in this in this graph What you can do is that you can say well The question we had like so how do we do pagination because if you have a 600 dimensional space, what would be the next page So what we've done is this so we said well we can actually for example move towards a concept So I can say well move towards the concept for example of the Beatles So I guess you already know what will happen if I do that So and I give it a certain force the force is how strongly you want to push towards this concept inside the vector space So let's say it's a little bit arbitrary, but let's say 85% So if I do that now you see that John Lennon the article with John Lennon comes first And if I say like I'm more like a stones person. I hate the Beatles then of course you can also do Move away from the concept of the Beatles same query and we see John Lennon is gone and now the question is like okay So what makes it so like now in the traditional graph people are going like yeah But I haven't seen really the graph in action yet So that's just very simple because you could say for example has authors and then we can say on author The author is a name so this is how we structure the graph so now you see so you see the graph object here That's this first the title of the article and he said has authors and then actually the authors that are related to this to this article I Think if time allows it there's one more thing can I still quickly show one more thing? Yes So the I was wrong with you which I completely forgot because there's another problem that we also tried to solve for this And I want to show you that going back to the publications So quickly going back to the publications Things publication and then they say a name of the publication When when you glance over this you might have noticed that we have all these publications But we have the international New York Times the New York Times company and the New York Times in there three times Which is a problem because of course you want to represent concepts But in a database we have the same concept represented three times. So we have something for that Which we can do is that we can say well, we want to group concepts together So then we say I'm gonna do the type merge them together I'm gonna give a four. So how big do we need to look in the vector space before merging and Then I can say well do that with five percent So if I now run this query, you'll see that it merged together the international New York Times New York Times company and the New York Times But if I now do a graph query. So I say has articles on article The title of the article it even now merges together those different articles from those different publications into the same Concept. So that's what we have. That's how it works Oh way more features the automatic classification I didn't even get to show you that but you can play around with it because well where it's fast them So this software is open source. You can play around with it. You can set it up yourself. You can create your own graphs Of semantic graphs, I should say That's my story in a nutshell. Thank you all for listening and If you like it and if you go to a website, then I just have one question. So this is our website If you go here then you can sign up to a newsletter if you want to learn or you can click on the get off star Button if you want to I will promote a little bit. So that's a but this is a website. Thank you very much for listening Thank you Very single words No, no why are you sure about it? There's a great question. So let me let me start with the first answer to the first question so and and sorry if I went over that quickly too quickly because it's And this whole everything what I told us also on the website in detail But that's what's happening here. We always knew use the same algorithm so if you would have a that object with a longer sentence like for example the summary or the title of the articles that you've seen it applies the same Algorithm so it says like first I take all these individual words Then I find this center position between those words Then I weigh them based on the occurrence. So certain words are seen as more important than others. So it weighs it towards that And then we have this optional word boosting that you can say well in this specific case This word is very important. So move more towards that. That's how we create those vector positions. So regardless if you're querying or if you're Adding data, that's how we do it. So that's why we also became agnostic about the fact that gloves about single words And because we learned that if we so we the first prototype we did way back was very simple We say okay, I have the word Apple show me what's nearby and then as you would expect as glove does it says like well I found iPhone but also for found fruit and then we did something very simple Which okay now go and sit in the center between Apple and iPhone show me again what happens and then you see actually That that's successful and if I if I may I can actually quickly show that I'm the last talker. So Thank you. I should have waited a little yet said go ahead and then thank you So there's a contectionary endpoint where you can say well concepts So if I now literally do what I just said, so if I would say Apple Then you see your Apple iTunes Google preview on this and now of course in this example. We don't see Of course the fruit, but let's say if I would do Apple and not based on the company bottom fruit So I concatenate them apple and fruit. You see how it now starts to Get better and better in those results. So and that's how it the algorithm works So you can play around with this also yourself on this on this endpoint and the other question Every time we make a query Yeah, sure so we We of course we're also like a we're also a business So we have like that so the core is like open source, but we built like a shell around that So we currently have six companies using this on a large scale in in a variety of industries also retail Oil and gas all those kind of things and these graphs get pretty big and especially if you scale the communities cluster It's fast, which is something I'm now I could say that we fensely like Architected that but it was actually something we got for free because we just the data model is just vectors only vectors And that's of course very fast to scale and to search through so the answer to that question is yes I Don't know and I love the idea so we're definitely going to try that out. I don't know. I don't it's a great idea We haven't we haven't tried that yet. So what we currently do is that we just have you have a we've eaten in a language so Dutch French English of course But we haven't tried that yet. So if you don't mind then it would be fantastic too Or of course you can try that yourself or we can do it together, but that would be fantastic It's a it's a great idea and I don't know Thank you Thank you