The defendant\u2019s motion for return of property under Rule 41(g) is denied until the trial. While some may not be used at trial, the court will not second guess the government\u2019s trial preparation in determining what will be used. United States v. Tomkins, 2012 U.S. Dist. LEXIS 23197 (E.D. Ill. February 23, 2012):<\/p>\n
Defendant also asserts that none of the documents which he wants the government to return has any evidentiary value. For each of the items that remain in dispute, the government has explained why it might wish to use the material as evidence at trial. Defendant disagrees with the government’s articulated reasons, but that disagreement is not enough to override the government’s interest in retaining materials that it may wish to offer as evidence at trial.<\/p>\n
The process of pretrial preparation typically requires lawyers to assess a larger volume of evidence than ultimately will be used at trial. For some items of evidence, it may be abundantly clear early on whether they will be used at trial. For other items, that decision may be uncertain even as trial commences. It is the role of trial attorneys to progressively make judgments \u2014 all the way up to and including during trial \u2014 about which materials will be used.<\/p>\n
We decline the invitation to dismiss (or dictate) the government’s strategic considerations as to what evidence it may seek to use at trial. Defendant may believe that the government will not need certain items of evidence because he will not dispute certain points at trial. However, the government still may seek to introduce some evidence on those points to attempt to enhance the persuasiveness of its case. Defendant may believe that some of the materials the government seeks to keep are duplicative of other evidence that the government already possesses (such as, with respect to handwriting). However, the judgment about whether certain evidence is cumulative of other evidence depends on knowing what has been admitted into evidence at trial, which at this time is plainly unknown.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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