THE CORE ARGUMENT
Two Systems. One Country.
Sue someone over money and you can depose every witness. Get indicted and face prison, and you can depose none of them.
The system with money on the line gives you every tool. The system with your freedom on the line gives you almost none. This isn’t a partisan claim, and it isn’t about any one case. It’s a straight reading of the rules.
In a system where roughly 97% of convictions come by plea, and the prosecutors who cut corners are shielded from consequence, how confident can anyone be that it reliably tells guilt from innocence?
Side by Side
| YOUR RIGHT TO… | CIVIL CASEMONEY AT STAKE | FEDERAL CRIMINAL CASEYOUR FREEDOM AT STAKE |
|---|---|---|
| Depose the key witnesses | Yes | No |
| Written interrogatories | Yes | No |
| See witness statements before trial | Yes | No — sometimes the morning the witness testifies |
| Know what a witness will say before you cross-examine | Yes | No |
| Keep your bank accounts during the case | Usually | Often not — an indictment alone can close them |
| Recover your legal fees if the government was wrong | Routinely | Almost never |
| Standard the government must meet to avoid paying you | “Substantially justified” | “Vexatious, frivolous, or in bad faith” |
| Share of cases decided by a jury | — | Under 3% |
- CIVIL
- Yes
- CRIMINAL
- No
- CIVIL
- Yes
- CRIMINAL
- No
- CIVIL
- Yes
- CRIMINAL
- No — sometimes the morning the witness testifies
- CIVIL
- Yes
- CRIMINAL
- No
- CIVIL
- Usually
- CRIMINAL
- Often not — an indictment alone can close them
- CIVIL
- Routinely
- CRIMINAL
- Almost never
- CIVIL
- “Substantially justified”
- CRIMINAL
- “Vexatious, frivolous, or in bad faith”
- CIVIL
- —
- CRIMINAL
- Under 3%
Sources: Federal Rules of Civil Procedure 26–37 (civil discovery), Federal Rules of Criminal Procedure 15–17 (criminal discovery), Hyde Amendment fee-recovery standard (18 U.S.C. § 3006A note), and U.S. Sentencing Commission plea-vs.-trial data.
Why It Matters
The tools are one-sided.
Civil litigants can depose witnesses and see statements in advance. Criminal defendants often see them the morning of testimony.
The cost is uneven.
An indictment alone can freeze bank accounts, end jobs, and destroy reputations — before any trial.
The remedy is missing.
Win your civil case and fees are routinely recoverable. Win your criminal case and the government almost never pays.
What Fixes It
We are not arguing to soften the criminal law. We are arguing that the procedures that decide who gets convicted should match the seriousness of what’s at stake.
Every problem in the table has a solution on the same line — and each is a discrete, actionable reform. Our priority campaign, Rule 15, is the highest-leverage single change available today: expand pretrial depositions in federal criminal cases so both sides can see the same witnesses before trial.
DO SOMETHING
Read the filing, take the survey, share your story.
Every gesture strengthens the record we bring to policymakers. Pick the one that fits you today.