L. 94149, 5, Dec. 12, 1975, 89 Stat. Whether under existing law discovery may be permitted in criminal cases is doubtful, United States v. Rosenfeld, 57 F.2d 74 (C.C.A. 181 (S.D.N.Y. 1967); United States v. Federmann, 41 F.R.D. (G) generally. 27 (S.D.N.Y. (1) Information Subject to Disclosure. 1194, 10 L.Ed.2d 215 (1963); Giles v. Maryland, 386 U.S. 66, 87 S.Ct. Subdivision (a)(4) is designed to insure that the government will not be penalized if it makes a full disclosure of all potential witnesses and then decides not to call one or more of the witnesses listed. The court will intervene only to resolve a dispute as to whether something is discoverable or to issue a protective order. There are assertions that prosecution discovery, even if conditioned upon the defendants being granted discovery, is a violation of the privilege. Amendments of this rule embraced in the order of the United States Supreme Court on Apr. This provision is intended to permit more complete pretrial preparation by the requesting party. 1967). 935 (W.D.Pa. United States v. Kaminsky, 275 F.Supp. LR 16-3 Motions to Change or Extend Court-Imposed Deadlines (a) Motions Proposed subdivision (a)(2) provides that Rule 16 does not authorize the defendant to discover reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case. The defendant never needs to turn over a list of his witnesses. 64 (1965); Symposium, Discovery in Federal Criminal Cases, 33 F.R.D. 19711972); N.J.Crim.Prac.Rule 3511(a) (1967). Notes of Advisory Committee on Rules1983 Amendment. The government must supplement or correct its disclosures in accordance with (c). Requiring disclosure of documents and tangible objects which were obtained from or belong to the defendant probably is also making explicit in the rule what would otherwise be the interpretation of materiality. See C. Wright, Federal Practice and Procedure: Criminal 254 at p. 510 especially n. 58 (1969, Supp. See also United States v. Hughes, 413 F.2d 1244, 125152 (5th Cir. 940, 10511063. Rule 16(a)(1)(E) and 16(a)(1)(F) require production of specified information if the government intends to use the information in its case-in-chief at trial. The Committee believed that the language in revised Rule 16(b)(1)(B), which deals with a defendant's disclosure of information to the government, should track the similar language in revised Rule 16(a)(1). See State v. Thayer, 124 Ohio St. 1, 176 N.E. The Conference adopts the Senate provision. Subd. Other courts have held that even though the current rules make discovery discretionary, the defendant need not show cause when he seeks to discover his own statements. 1967); United States v. Reid, 43 F.R.D. 22, 1974, eff. Independent Discovery for the Government.The House version of the bill provides that the government's discovery is reciprocal. (1) Information Subject to Disclosure. Subdivision (a)(1)(A) also provides for mandatory disclosure of any recorded testimony which defendant gives before a grand jury if the testimony relates to the offense charged. The present rule is discretionary and is applicable only to those of defendant's statements which are relevant.. 1968). State cases have indicated that a requirement that the defendant disclose in advance of trial materials which he intends to use on his own behalf at the trial is not a violation of the privilege against self-incrimination. (vi) Supplementing and Correcting a Disclosure. See American Bar Association, Standards Relating to Discovery and Procedure Before Trial, pp. State cases have indicated that disclosure of a list of defense witnesses does not violate the defendant's privilege against self-incrimination. Rule 16.1 Pretrial Discovery Conference; Request for Court Action. .. The proposed rule was sharply criticized by both prosecutors and defenders. 173.045 (1967); Okl.Stat. This is the recommendation of the American Bar Association Standards Relating to Discovery and Procedure Before Trial, Commentary, pp. Or in cases (such as antitrust cases) in which the defendant is well represented and well financed, mutual disclosure so far as consistent with the privilege against self-incrimination would seem as appropriate as in civil cases. Nor does the amendment extend to summary witnesses who may testify under Federal Rule of Evidence 1006 unless the witness is called to offer expert opinions apart from, or in addition to, the summary evidence. If that informer is not to have his life protected there won't be many informers hereafter. In states which require pretrial disclosure of witnesses identity, the prosecution is not allowed to comment upon the defendant's failure to call a listed witness. The Committee added language to subdivision (a)(1)(B) to conform it to provisions in subdivision (a)(1)(A). . The Committee recognized that this might constitute a substantive change in the rule but believed that it was a necessary conforming change with the provisions in Rule 16(a)(1)(E) and (F), noted supra, regarding use of evidence by the government. State courts have refused to hold these statutes violative of the privilege against self-incrimination. (c). government's discovery obligations pursuant to Rules 16 and 26.2 of the Federal Rules of Criminal Procedure, Brady v. Maryland,1 Giglio v. United States,2 18 U.S.C. This is not, however, intended to abrogate the defendant's right to comment generally upon the government's failure to call witnesses in an appropriate case. (C). If a party fails to comply with this rule, the court may: (A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (C) prohibit that party from introducing the undisclosed evidence; or. The added language is made necessary by the addition of Rule 26.2 and new subdivision (i) of Rule 12, which contemplate the production of statements, including those made to a grand jury, under specified circumstances. Likewise, on occasion, with respect to an expert witness whose identity is not critical to the opposing partys ability to prepare for trial, the party who wishes to call the expert may be able to provide a complete statement of the experts opinions, bases and reasons for them, but may not be able to provide the witnesss identity until a date closer to trial. Some state courts have held that a defendant may be required to disclose, in advance of trial, evidence which he intends to use on his own behalf at trial without violating the privilege against self-incrimination. Although the rule does not specify the means for disclosing the defendant's statements, if they are in written or recorded form, the defendant is entitled to inspect, copy, or photograph them. den., 286 U.S. 556. If the government previously provided a report under (F) that contained information required by (iii), that information may be referred to, rather than repeated, in the expert-witness disclosure.. It is also not unusual that such individuals, though no longer sharing a community of interest with the corporation, may nevertheless be subject to pressure from their former employers. Without regard to whether a party would be entitled to the underlying bases for expert testimony under other provisions of Rule 16, the amendment requires a summary of the bases relied upon by the expert. The fact that a witness name is on a list furnished under this rule shall not be grounds for comment upon a failure to call the witness.. The rule is intended to prescribe the minimum amount of discovery to which the parties are entitled. 879, 372 P.2d 919 (1962); People v. Lopez, 60 Cal.2d 223, 32 Cal.Rptr. The Committee deals with these problems by having the defendant trigger the discovery procedures. There is, however, considerable support for the policy of disclosing the substance of the defendant's oral statement. the attorney for the government knowsor through due diligence could knowthat the statement exists; (ii) the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent; and. It does not require disclosure of the witnesses statements although the rule does not preclude the parties from agreeing to disclose statements prior to trial. Many states have statutes or rules which require that the accused be notified prior to trial of the witnesses to be called against him. Old subdivision (f) of rule 16 dealing with time of motions is dropped because rule 12(c) provides the judge with authority to set the time for the making of pretrial motions including requests for discovery. 385, 91 L.Ed. The Senate version returns to the Supreme Court's language and defines work product to be reports, memoranda, or other internal government documents. This is the language of the present rule. See also Leland v. Oregon, 343 U.S. 790, 72 S.Ct. Committee Action. Discovery. (ii) Time to Disclose. (A) Documents and Objects. The rule does not extend, however, to witnesses who may offer only lay opinion testimony under Federal Rule of Evidence 701. Pub. Proc. 135 (1963); Note, 76 Harv.L.Rev. See ABA Standards Relating to Discovery and Procedure Before Trial 2.5(b) (Approved Draft, 1970). A request for notice of intention to use evidence, if that is what you mean, is separately covered under Rule 12 (E) (2). 1967). This rule does not apply to the discovery or inspection of a grand jury's recorded proceedings, except as provided in Rules 6, 12(h), 16(a)(1), and 26.2. This is done, for example, in courts using the so-called omnibus hearing.. The Senate version also makes a conforming change in Rule 16(d)(1). 1967); Gevinson v. United States, 358 F.2d 761 (5th Cir. L. 9464, effective Dec. 1, 1975, see section 2 of Pub. A Court may, not must, conduct an ex parte proceeding if a party so requests. 1963). 4043 (Approved Draft, 1970). The amendment is intended to clarify that the discovery and disclosure requirements of the rule apply equally to individual and organizational defendants. (C) Organizational Defendant. The amendment to Rule 16(b)(1)(C) provides that if the defendant has notified the government under Rule 12.2 of an intent to rely on expert testimony to show the defendant's mental condition, the government may request the defense to disclose information about its expert witnesses. 1967); United States v. Armantrout, 278 F.Supp. Proc., Rule 16; Ill.Stat. (iv) Supplementing and Correcting a Disclosure. This painstaking approach is important because the proportionality requirement under Rule 26 (b) (1) is both a potent shield against overbroad and burdensome (and thus expensive) discovery demands and a powerful sword against a recalcitrant party resisting legitimate discovery. Pub. Second, the requesting party is entitled to a summary of the expected testimony. 1967); Summaries of the defendant's statements, United States v. Morrison, 43 F.R.D. See Jones v. Superior Court of Nevada County, 58 Cal.2d 56, 22 Cal.Rptr. The prosecutor must disclose to the defendant the following material or information directly related to the case of which the prosecution team has knowledge and control: (a)(1)(A)written or recorded statements of the defendant and any codefendants, and the substance of any unrecorded oral statements made by the defendant and any codefendants to . Reciprocal vs. (b)(1). The Committee notes that subdivision (a)(1)(C) permits the defendant to discover certain items that were obtained from or belong to the defendant. The Committee believes that, as indicated in the Advisory Committee Note [House Document 93292, at 59], items that were obtained from or belong to the defendant are items that are material to the preparation of his defense. Making disclosure mandatory without a showing of relevance conforms to the recommendation of the American Bar Association Standards Relating to Discovery and Procedure Before Trial 2.1(a)(iii) and Commentary pp. The Committee changed the mandatory language to permissive language. 419, 59 N.W. 11, 1997, eff. In exceptional instances, there may be a risk of danger. 1971), Rezneck, The New Federal Rules of Criminal Procedure, 54 Geo.L.J. 1962). The Committee also changed subdivisions (a)(2) and (b)(2), which set forth work product exceptions to the general discovery requirements. The proposed rule required the prosecutor to provide the defendant with a record of the felony convictions of government witnesses. This rule allows the defendant and the state to request a witness's statement from the presenting adverse party after the witness has testified on direct examination. Certainly disclosure will facilitate the raising of objections to admissibility prior to trial. In addition, it permits the procedure to be invoked in cases of objects and documents obtained from others by seizure or by process, on the theory that such evidential matter would probably have been accessible to the defendant if it had not previously been seized by the prosecution. Discovery and Inspection - 2021 Federal Rules of Criminal Procedure Home Title IV - The Arraignment and Preparation for Trial Rule 16. Rule 16(a)(2), however, stated that except as provided by certain enumerated paragraphs-not including Rule 16(a)(1)(C)-Rule 16(a) did not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by the attorney for the government. Dec. 1, 1994; Apr. Thus, the court can require disclosure of the witness lists earlier than 3 days before trial, or can permit a party not to disclose the identity of a witness before trial. Under present law, the government must turn over a witness list only in capital cases. 16, 2013, eff. (iii) the item is material to preparing the defense or the government intends to use the item in its case-in-chief at trial. [See the comments of the Standing Committee on Criminal Law and Procedure of the State Bar of California in Hearings II, at 302.]. As stated in the Advisory Committee Note. Note to Subdivision (a)(3). It is controlled by Rule 16 (below) of the Colorado Rules of Criminal Procedure. 311 (1968). 1962). 3500. 56 (1961); Louisell, The Theory of Criminal Discovery and the Practice of Criminal Law, 14 Vand.L.Rev. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 7(c); Ariz.R.Crim.Proc. Under Rule 16(a)(1)(E), as amended in 1993, the defense is entitled to disclosure of certain information about expert witnesses which the government intends to call during the trial. Once the requested information is provided, the government is entitled, under (b)(1)(C) to reciprocal discovery of the same information from the defendant. 623, 1 L.Ed.2d 639 (1957). ., The proposed rule also enlarges the scope of the government's discovery of materials in the custody of the defendant. 1968); a memorandum which was not verbatim but included the substance of the defendant's testimony, United States v. Scharf, 267 F.Supp. 865 (1968); Wilder, Prosecution Discovery and the Privilege Against Self-Incrimination, 6 Am.Cr.L.Q. Rule 16.1. The amendment to Rule 16(a)(1)(A) expands slightly government disclosure to the defense of statements made by the defendant. 1967); statements which reproduce the defendant's exact words, United States v. Armantrout, 278 F.Supp. 508 (N.D.Ill. Such discretion will permit the court to consider the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances. 408 (S.D.N.Y. The Advisory Committee is of the view that this is the most desirable approach to prosecution discovery. The Committee made an additional change in subdivision (a)(1)(E). Pub. 339 (S.D.N.Y. L. 107273, div. [An ex parte proceeding would seem to be appropriate if any adversary proceeding would defeat the purpose of the protective or modifying order. 961, 22 L.Ed.2d 176 (1969). 28.980, M.C.L.A. Like the existing provisions, amended subsections (a)(1)(G) (governments disclosure) and (b)(1)(C) (defendants disclosure) generally mirror one another. The proposed rule enlarges the scope of the defendant's discovery to include a copy of his prior criminal record and a list of the names and addresses, plus record of prior felony convictions, of all witnesses the prosecution intends to call during its case-in-chief. (a)(1)(G) and (b)(1)(C), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. 1957): Ninety percent of the convictions had in the trial court for sale and dissemination of narcotic drugs are linked to the work and the evidence obtained by an informer. At the same time provisions are made to guard against possible abuses. 1967); United States v. Morrison, 43 F.R.D. Information previously provided need not be repeated in the expert disclosure, if the expert disclosure clearly identifies the information and the prior report in which it was provided. The amendment requires a complete statement of all opinions the expert will provide, but does not require a verbatim recitation of the testimony the expert will give at trial. 1971). The extent to which pretrial discovery should be permitted in criminal cases is a complex and controversial issue. It does not distinguish between those cases where the expert will be presenting testimony on novel scientific evidence. . While the government normally has resources adequate to secure the information necessary for trial, there are some situations in which mutual disclosure would appear necessary to prevent the defendant from obtaining an unfair advantage. 191404 (1948); Ill.Rev.Stat. Bergen Drug Co. v. Parke, Davis & Company, 307 F.2d 725 (3d Cir. A majority of the Conferees believe it is not in the interest of the effective administration of criminal justice to require that the government or the defendant be forced to reveal the names and addresses of its witnesses before trial. The rule makes clear that such statements are discoverable if the officer or employee was able legally to bind the defendant in respect to the activities involved in the charges.. See Will v. United States, 389 U.S. 90, 88 S.Ct. See also rule 12.1 and Advisory Committee Note thereto. 598 (1953). The defendant must supplement or correct the defendants disclosures in accordance with (c).
The Meselson-stahl Experiment Demonstrated That Dna Replication Is Semiconservative,
Minor Emergency Derby, Ks,
Articles R
