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Case 1:20-cr-00330-PAE Document 440 Filed 11/12/21 Page 28 of 40 “cross-examined the detectives” about the identification procedure and “pointed out that [the defendant] was charged even though he had a confirmed alibi and [the alternative perpetrator] did not.” 799 F.2d at 613. The court said in addition that “[a] common trial tactic of defense lawyers is to discredit the caliber of the investigation or the decision to charge the defendant, and we may consider such use in assessing a possible Brady violation.” Jd. But the Court did not say that any and all evidence that went to the diligence of the Government’s investigators or prosecutors is admissible. The reason is that litigating whether the investigators were sufficiently thorough is not a defense. The rule is that the Government is not on trial—the law does not permit the defense to offer evidence solely to attack the Government’s motives or thoroughness. To the extent the defense may do so, they may do so in closing argument, see United States v. Londono, 175 F. App’x 370, 375 (2d Cir. 2006) (summary order) (explaining that “a defendant may comment on the failure of proof in the record’), through relevant cross-examination, see Watson, 640 F.3d at 511, and through evidence that is otherwise relevant, see Kyles, 514 U.S. at 445, 453 (defense could have called informant whose “behavior raised suspicions that he had planted both the murder weapon and the victim’s purse in the places they were found”). See also United States v. Mickens, Nos. 20-258 (L), 20-462, 20-630, 2021 WL 3136083, at *9 (2d Cir. July 26, 2021) (summary order) (describing a defense that “emphatically and repeatedly” attacked the thoroughness of the Government’s investigation in “‘cross-examinations and closing statements”). But that is all. Indeed, if such a line of defense were permissible, it would be used routinely, and the defense 27 DOJ-OGR-00006544