Typically, when you think of discovery on criminal cases, it is the discovery by the Government or the prosecutor that comes to mind. Although not as common, there are also defense discovery obligations that apply to criminal cases.
What Laws Govern Federal Defense Discovery Obligations?
Federal criminal discovery is far more limited than that of federal civil discovery. Under Federal Law, there are several cases and statutes that govern federal discovery obligations. Specifically, they are:
- Brady v. Maryland – a Supreme Court case from 1963 that held that evidence that exonerates the Defendant must be turned over to the defense. Currently, this case was a broad application, in that it doesn’t only apply to exculpatory evidence, but rather to all evidence that is material to a determination of someone’s guilt or punishment.
- Giglio v. United States – a Supreme Court from 1972, which expanded the holding of Brady in that the prosecution is also required to turn over any evidence that can be used to impeach the credibility of the Government’s witnesses. This impeachment material applies to anything that can be used to call the credibility of the witnesses in question.
- Jencks Act – requires production of verbatim witness statements made to the Government. This is commonly called 3500 material from the name of the statute that governs discovery.
- Rule 16(a) of Federal Criminal Procedure – applies to Government’s disclosure requirements in a criminal case.
- Rule 16(b) of Federal Criminal Procedure- applies to Defense discovery obligations in a criminal case.
What are Defense Discovery Obligations under Rule 16(b) of the Federal Criminal Procedure?
Rule 16 of the Federal Rule of Criminal Procedure is the only source of governing rules regarding pre-trial discovery in criminal cases. Rule 16(b)(1)(A)-(C) applies to defense discovery obligations on federal criminal cases. Importantly, the rule provides that if the Defense requests discovery disclosure from the Government and the Government complies, Defense has reciprocal defense discovery obligations. Specifically, Rule 16(b)(1) provides,
“(A) Documents and Objects. If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items if:
- the item is within the defendant’s possession, custody, or control; AND
- the defendant intends to use the item in the defendant’s case-in-chief at trial.
(B) Reports of Examinations and Tests. If a defendant requests disclosure under Rule Rule 16(a)(1)(F) and the government complies, the defendant must permit the government, upon request, to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if:
- the item is within the defendant’s possession, custody, or control; AND
- the defendant intends to use the item in the defendant’s case-in-chief at trial, or intends to call the witness who prepared the report and the report relates to the witness’s testimony.
(C) Expert Witnesses. The defendant must, at the government’s request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if—
- the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; OR
- the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant’s mental condition.
This summary must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications[.]”
Rule 16 makes clear that a defendant may ask the government to disclose specific materials to them. It also makes evident that criminal proceedings do not require extensive discovery proceedings, in which both the prosecution and defense are required to provide every piece of evidence before trial. Sampson, 898 F.3d 270, 280. Rule 16 is a guiding and binding force in the criminal proceedings that face issues regarding discovery.
What is the Timeline For Complying with Defense Discovery Obligations?
If the prosecution moves for reciprocal discovery pursuant to Rule 16(b) (the defense does not oppose the motion), and the motion is then granted, then the defense must provide such discovery, no later than 30 days prior to trial (or at the date directed by the judge). United States v. Sikut, 488 F. Supp. 2d 291, 304 (W.D.N.Y. 2007). In Sikut, the defendant did not oppose the prosecution’s motion for reciprocal discovery, and their motion was granted. Id. The judge ordered the defendant to provide such discovery no later than 30 days prior to the trial or to any other date requested by the District Judge. Id.
Under Rule 16(b), discovery must only be provided to the prosecution when their motion for reciprocal discovery (if made), is granted. If this occurs, then we must provide such discovery to the prosecution either 30 days prior to trial, or at a specific date that the judge may indicate.
If the prosecution moves for reciprocal discovery under Rule 16(b), the defense will be obliged to provide them with the opportunity to “inspect, copy or photograph books, papers, documents, photographs, tangible objects or copies or portions thereof,” which are in the defendant’s possession, “and which the defendant intends to introduce as evidence at trial.” United States v. Gerace, No. 1:19-CR-86 JLS (MJR), 2020 WL 4227990, at 9 (W.D.N.Y. 2020), report and recommendation adopted, No. 19-CR-86 (JLS) (MJR), 2020 WL 4227374 (W.D.N.Y. 2020). In addition, if the prosecution moves for reciprocal discovery under Rule 16(b), the defense will also be obliged to provide them with “the results or reports of any physical or mental examinations or scientific tests or experiments made in connection with the case,” as well as a “written summary of any expert witness testimony.” Id. In Gerace, the prosecution moved for reciprocal discovery and their motion was granted. Id. Apart from providing them with access to tangible objects or copies in possession of the defendant for use at trial, the prosecution also asked for the disclosure of any statements the defendant planned to use at trial. Id. The defendant was reminded that these obligations remain in place up to and during trial. Id.
If the prosecution moves for reciprocal discovery, then Defense must provide them with the chance to inspect, copy or photograph any tangible objects or (tangible copies of objects) that Defense possesses, and plans to introduce as evidence at trial. Additionally, Defense discovery obligations extend to reports of physical, mental or scientific examinations that have been made in connection to the case at hand, alongside a written summary of any expert witness testimony.
What is the Penalty for Non-Compliance with Defense Discovery Obligations?
At the request of the prosecution, the prosecution must be provided with a written summary of any expert testimony that intends to be used. United States v. Ulbricht, 858 F.3d 71, 114-115 (2d Cir. 2017). If this summary is not provided on time, or does not describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications, then the summary will be deemed inadequate and the court will have broad discretion in issuing a remedy. Id. In Ulbricht, the court found that the defendant’s life sentence was not unreasonable because his expert disclosures were late, and they did not summarize the experts’ opinions or describe the bases for the experts’ opinions. Id. at 115. The court believed that the prosecution would be prejudiced by the defendant’s inadequate disclosures, so they had full discretion in deciding that they would preclude the experts altogether. Id. at 116.
If the prosecution requests a written summary of any expert testimony that is going to be used as evidence at trial, and we fail to provide this evidence in the time allotted to us, OR the summary is vague (by not including the expert’s opinions, qualifications and basis/reasoning for their opinions), then this portion of discovery will be deemed inadequate. If the summary is deemed inadequate, then we risk preclusion of the expert testimony entirely, or any other remedy that the court determines as reasonable in order to eliminate any prejudice.
Thus, it is likely that the defense will not be required to disclose expert and investigator reports when these experts and investigators do not intend to testify, even if the government moves for reciprocal discovery, (demanding disclosure of evidence), and their motion is granted. However, if the expert and/or investigator do decide to testify, then under Rule 16(b), we must prepare to provide the prosecution with a written summary of testimony, describing the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications. When evaluating defense discovery obligations, it is important to consider what will be required to be turned over to the Government.
If you have any questions regarding your federal criminal case or specifically about defense discovery obligations, please contact us to schedule your consultation.