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Superior Court , 53 Cal. Bickham , La. Johnson , Mich. Johnson , supra; People v. Stokes , 24 Miss. The amendment also makes it clear that discovery extends to recorded as well as written statements. For state cases upholding the discovery of recordings, see, e.
Cartier , 51 Cal. Minor , A. Again the defendant is not required to designate but the government's obligation is limited to production of items within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government.
With respect to results or reports of scientific tests or experiments the range of materials which must be produced by the government is further limited to those made in connection with the particular case. Superior Court , 90 Ariz. Cooper , 53 Cal. Stokes , supra, at , N. The policy which favors pretrial disclosure to a defendant of his statements to government agents also supports, pretrial disclosure of his testimony before a grand jury.
Courts, however, have tended to require a showing of special circumstances before ordering such disclosure. Johnson , F. Disclosure is required only where the statement has been recorded and hence can be transcribed. Subdivision b. Because of the necessarily broad and general terms in which the items to be discovered are described, several limitations are imposed:.
The requirement of reasonableness will permit the court to define and limit the scope of the government's obligation to search its files while meeting the legitimate needs of the defendant. The court is also authorized to limit discovery to portions of items sought. Palermo v. United States , U. United States , F. Subdivision c. 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.
For example, in cases where both prosecution and defense have employed experts to make psychiatric examinations, it seems as important for the government to study the opinions of the experts to be called by the defendant in order to prepare for trial as it does for the defendant to study those of the government's witnesses.
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. 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.
See Jones v. Superior Court , 58 Cal. Lopez , 60 Cal. Subdivision d. Subdivision e. Control of the abuses of discovery is necessary if it is to be expanded in the fashion proposed in subdivisions a and b. Among the considerations to be taken into account by the court will be the safety of witnesses and others, a particular danger of perjury or witness intimidation, the protection of information vital to the national security, and the protection of business enterprises from economic reprisals.
For an example of a use of a protective order in state practice, see People v. See also Brennan, Remarks on Discovery, 33 F. In some cases it would defeat the purpose of the protective order if the government were required to make its showing in open court.
The problem arises in its most extreme form where matters of national security are involved. Hence a procedure is set out where upon motion by the government the court may permit the government to make its showing, in whole or in part, in a written statement to be inspected by the court in camera. If the court grants relief based on such showing, the government's statement is to be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the defendant, Cf.
Subdivision f. Normally one motion should encompass all relief sought and a subsequent motion permitted only upon a showing of cause. Where pretrial hearings are used pursuant to Rule Subdivision g. The duty provided is to notify the other party, his attorney or the court of the existence of the material. A motion can then be made by the other party for additional discovery and, where the existence of the material is disclosed shortly before or during the trial, for any necessary continuance.
The second sentence gives wide discretion to the court in dealing with the failure of either party to comply with a discovery order. 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.
Rule 16 is revised to give greater discovery to both the prosecution and the defense. Subdivision a deals with disclosure of evidence by the government. Subdivision b deals with disclosure of evidence by the defendant. The majority of the Advisory Committee is of the view that the two—prosecution and defense discovery—are related and that the giving of a broader right of discovery to the defense is dependent upon giving also a broader right of discovery to the prosecution.
The draft provides for a right of prosecution discovery independent of any prior request for discovery by the defendant. The Advisory Committee is of the view that this is the most desirable approach to prosecution discovery.
The court, however, has the inherent right to enter an order under this rule. The rule is intended to prescribe the minimum amount of discovery to which the parties are entitled.
It is not intended to limit the judge's discretion to order broader discovery in appropriate cases. For example, subdivision a 3 is not intended to deny a judge's discretion to order disclosure of grand jury minutes where circumstances make it appropriate to do so. Subdivision a 1 A amends the old rule to provide, upon request of the defendant, the government shall permit discovery if the conditions specified in subdivision a 1 A exist.
Some courts have construed the current language as giving the court discretion as to whether to grant discovery of defendant's statements. See United States v. Kaminsky , F. Diliberto , F. Louis Carreau , Inc. In United States v. Wallace , F. Wood , F. Leighton , F. Longarzo , 43 F. 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.
Aadal , F. Federmann , 41 F. Projansky , 44 F. The amendment making disclosure mandatory under the circumstances prescribed in subdivision a 1 A resolves such ambiguity as may currently exist, in the direction of more liberal discovery. See C. Rule 35—11 a This is done in the view that broad discovery contributes to the fair and efficient administration of criminal justice by providing the defendant with enough information to make an informed decision as to plea; by minimizing the undesirable effect of surprise at the trial; and by otherwise contributing to an accurate determination of the issue of guilt or innocence.
La Gay , U. See also Leland v. Oregon , U. The requirement that the statement be disclosed prior to trial, rather than waiting until the trial, also contributes to efficiency of administration. It is during the pretrial stage that the defendant usually decides whether to plead guilty.
Projansky , supra. The pretrial stage is also the time during which many objections to the admissibility of types of evidence ought to be made. Pretrial disclosure ought, therefore, to contribute both to an informed guilty plea practice and to a pretrial resolution of admissibility questions. The American Bar Association Standards mandate the prosecutor to make the required disclosure even though not requested to do so by the defendant.
Brady v. Maryland , U. See Discovery in Criminal Cases, 44 F. Elife , 43 F. Armantrout , F. Scharf , F. Morrison , 43 F. Black , F. The court in United States v. Iovinelli , F. The Jencks Act, 18 U. See Campbell v. The draft of subdivision a 1 A leaves the matter of the meaning of the term unresolved and thus left for development on a case-by-case basis. Subdivision a 1 A also provides for mandatory disclosure of a summary of any oral statement made by defendant to a government agent which the attorney for the government intends to use in evidence.
The reasons for permitting the defendant to discover his own statements seem obviously to apply to the substance of any oral statement which the government intends to use in evidence at the trial. Certainly disclosure will facilitate the raising of objections to admissibility prior to trial.
There have been several conflicting decisions under the current rules as to whether the government must disclose the substance of oral statements of the defendant which it has in its possession. United States v. Baker , F. Curry , F. Reid , 43 F. There is, however, considerable support for the policy of disclosing the substance of the defendant's oral statement.
Curry , supra; Loux v. Baker , supra. The traditional rationale behind grand jury secrecy—protection of witnesses—does not apply when the accused seeks discovery of his own testimony. Dennis v. In interpreting the rule many judges have granted defendant discovery without a showing of need or relevance.
Gleason , F. United Concrete Pipe Corp. In a situation involving a corporate defendant, statements made by present and former officers and employees relating to their employment have been held discoverable as statements of the defendant. Hughes , F. Subdivision a 1 B allows discovery of the defendant's prior criminal record. A defendant may be uncertain of the precise nature of his prior record and it seems therefore in the interest of efficient and fair administration to make it possible to resolve prior to trial any disputes as to the correctness of the relevant criminal record of the defendant.
Subdivision a 1 C gives a right of discovery of certain tangible objects under the specified circumstances. Courts have construed the old rule as making disclosure discretionary with the judge.
Tanner , F. Limiting the rule to situations in which the defendant can show that the evidence is material seems unwise. It may be difficult for a defendant to make this showing if he does not know what the evidence is.
For this reason subdivision a 1 C also contains language to compel disclosure if the government intends to use the property as evidence at the trial or if the property was obtained from or belongs to the defendant.
But it seems desirable to make this explicit in the rule itself. Subdivision a 1 D makes disclosure of the reports of examinations and tests mandatory. Maryland , supra. Subdivision a 1 E is new. It provides for discovery of the names of witnesses to be called by the government and of the prior criminal record of these witnesses. Many states have statutes or rules which require that the accused be notified prior to trial of the witnesses to be called against him.
Codes Ann. Code Ann. For examples of the ways in which these requirements are implemented, see State v. Mitchell , Kan. Parr , Mont. State , Neb. Subdivision a 1 E requires only disclosure, prior to trial, of names, addresses, and prior criminal record. Disclosure of the prior criminal record of witnesses places the defense in the same position as the government, which normally has knowledge of the defendant's record and the record of anticipated defense witnesses.
In addition, the defendant often lacks means of procuring this information on his own. A principal argument against disclosure of the identity of witnesses prior to trial has been the danger to the witness, his being subjected either to physical harm or to threats designed to make the witness unavailable or to influence him to change his testimony.
Discovery in Criminal cases, 44 F. Estep , F. 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. If that informer is not to have his life protected there won't be many informers hereafter. See also the dissenting opinion of Mr. Justice Clark in Roviaro v.
Threats of market retaliation against witnesses in criminal antitrust cases are another illustration. Bergen Drug Co. Simplicity Pattern Co.
The government has two alternatives when it believes disclosure will create an undue risk of harm to the witness: It can ask for a protective order under subdivision d 1.
It can also move the court to allow the perpetuation of a particular witness's testimony for use at trial if the witness is unavailable or later changes his testimony. The purpose of the latter alternative is to make pretrial disclosure possible and at the same time to minimize any inducement to use improper means to force the witness either to not show up or to change his testimony before a jury. See rule Subdivision a 2 is substantially unchanged.
Rothman , F. Hickman v. Taylor , U. Ed2d , requires the disclosure of evidence favorable to the defendant. This is, of course, not changed by this rule. Subdivision a 3 is included to make clear that recorded proceedings of a grand jury are explicitly dealt with in rule 6 and subdivision a 1 A of rule 16 and thus are not covered by other provisions such as subdivision a 1 C which deals generally with discovery of documents in the possession, custody, or control of the government.
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. 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.
Subdivision b deals with the government's right to discovery of defense evidence or, put in other terms, with the extent to which a defendant is required to disclose its evidence to the prosecution prior to trial. Subdivision b replaces old subdivision c. Subdivision b enlarges the right of government discovery in several ways: 1 it gives the government the right to discovery of lists of defense witnesses as well as physical evidence and the results of examinations and tests; 2 it requires disclosure if the defendant has the evidence under his control and intends to use it at trial in his case in chief, without the additional burden, required by the old rule, of having to show, in behalf of the government, that the evidence is material and the request reasonable; and 3 it gives the government the right to discovery without conditioning that right upon the existence of a prior request for discovery by the defendant.
Although the government normally has resources adequate to secure much of the evidence for trial, there are situations in which pretrial disclosure of evidence to the government is in the interest of effective and fair criminal justice administration.
Having reached the conclusion that it is desirable to require broader disclosure by the defendant under certain circumstances, the Advisory Committee has taken the view that it is preferable to give the right of discovery to the government independently of a prior request for discovery by the defendant. It is sometimes asserted that making the government's right to discovery conditional will minimize the risk that government discovery will be viewed as an infringement of the defendant's constitutional rights.
See discussion in C. There are assertions that prosecution discovery, even if conditioned upon the defendants being granted discovery, is a violation of the privilege. See statements of Mr. Justice Black and Mr. Justice Douglas, 39 F. Several states require defense disclosure of an intended defense of alibi and, in some cases, a list of witnesses in support of an alibi defense, without making the requirement conditional upon prior discovery being given to the defense.
Laws Ann. Laws, c. State courts have refused to hold these statutes violative of the privilege against self-incrimination. See State v. Thayer , Ohio St. Rakiec , App. See also rule 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.
Superior Court of Nevada County , 58 Cal. The courts in Jones v. Superior Court of Nevada County, supra, suggests that if mandatory disclosure applies only to those items which the accused intends to introduce in evidence at trial, neither the incriminatory nor the involuntary aspects of the privilege against self-incrimination are present.
On balance the Advisory Committee is of the view that an independent right of discovery for both the defendant and the government is likely to contribute to both effective and fair administration. Subdivision b 1 A provides that the defendant shall disclose any documents and tangible objects which he has in his possession, custody, or control and which he intends to introduce in evidence in his case in chief.
Subdivision b 1 B provides that the defendant shall disclose the results of physical or mental examinations and scientific tests or experiments if a they were made in connection with a particular case; b the defendant has them under his control; and c he intends to offer them in evidence in his case in chief or which were prepared by a defense witness and the results or reports relate to the witness's testimony. In cases where both prosecution and defense have employed experts to conduct tests such as psychiatric examinations, it seems as important for the government to be able to study the results reached by defense experts which are to be called by the defendant as it does for the defendant to study those of government experts.
Subdivision b 1 C provides for discovery of a list of witnesses the defendant intends to call in his case in chief. State cases have indicated that disclosure of a list of defense witnesses does not violate the defendant's privilege against self-incrimination. Superior Court of Nevada County , supra, and People v.
Lopez , supra. The defendant has the same option as does the government if it is believed that disclosure of the identity of a witness may subject that witness to harm or a threat of harm.
The defendant can ask for a protective order under subdivision d 1 or can take a deposition in accordance with the terms of rule Subdivision b 2 is unchanged, appearing as the last sentence of subdivision c of old rule Subdivision b 3 provides that the defendant's failure to introduce evidence or call witnesses shall not be admissible in evidence against him.
See O'Connor v. State , 31 Wis. Mancini , 6 N. Cocco , 73 Ohio App. This is not, however, intended to abrogate the government's right to comment generally upon the defendant's failure to call witnesses in an appropriate case, other than the defendant's failure to testify. Subdivision d 1 deals with the protective order. Although the rule does not attempt to indicate when a protective order should be entered, it is obvious that one would be appropriate where there is reason to believe that a witness would be subject to physical or economic harm if his identity is revealed.
See Will v. In Alderman the court points out that there may be appropriate occasions for the trial judge to decide questions relating to pretrial disclosure. See Alderman v. 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.
Rule 12 also prescribes the consequences which follow from a failure to make a pretrial motion at the time fixed by the court. See rule 12 f. Amendments Proposed by the Supreme Court. Rule 16 of the Federal Rules of Criminal Procedure regulates discovery by the defendant of evidence in possession of the prosecution, and discovery by the prosecution of evidence in possession of the defendant.
The present rule permits the defendant to move the court to discover certain material. The prosecutor's discovery is limited and is reciprocal—that is, if the defendant is granted discovery of certain items, then the prosecution may move for discovery of similar items under the defendant's control.
As proposed to be amended, the rule provides that the parties themselves will accomplish discovery—no motion need be filed and no court order is necessary. The court will intervene only to resolve a dispute as to whether something is discoverable or to issue a protective order. 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.
It also permits the defendant to discover the substance of any oral statement of his which the prosecution intends to offer at trial, if the statement was given in response to interrogation by any person known by defendant to be a government agent. The proposed rule also enlarges the scope of the government's discovery of materials in the custody of the defendant. The government is entitled to a list of the names and addresses of the witnesses the defendant intends to call during his case-in-chief.
Subdivision d 1 of the proposed rule permits the court to deny, restrict, or defer discovery by either party, or to make such other order as is appropriate. Upon request, a party may make a showing that such an order is necessary. This showing shall be made to the judge alone if the party so requests. If the court enters an order after such a showing, it must seal the record of the showing and preserve it in the event there is an appeal.
Committee Action. The Committee agrees that the parties should, to the maximum possible extent, accomplish discovery themselves. The court should become involved only when it is necessary to resolve a dispute or to issue an order pursuant to subdivision d. Perhaps the most controversial amendments to this rule were those dealing with witness lists. Under present law, the government must turn over a witness list only in capital cases. The proposed rule requires both the government and the defendant to turn over witness lists in every case, capital or noncapital.
Moreover, the lists must be furnished to the adversary party upon that party's request. The proposed rule was sharply criticized by both prosecutors and defenders. The prosecutors feared that pretrial disclosure of prosecution witnesses would result in harm to witnesses. The defenders argued that a defendant cannot constitutionally be compelled to disclose his witnesses. The Committee believes that it is desirable to promote greater pretrial discovery. As stated in the Advisory Committee Note,.
The Committee, therefore, endorses the principle that witness lists are discoverable. However, the Committee has attempted to strike a balance between the narrow provisions of existing law and the broad provisions of the proposed rule.
The Committee rule makes the procedures defendant-triggered. If the defendant asks for and receives a list of prosecution witnesses, then the prosecution may request a list of defense witnesses. The witness lists need not be turned over until 3 days before trial. The court can modify the terms of discovery upon a sufficient showing.
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. The Committee provision promotes broader discovery and its attendant values—informed disposition of cases without trial, minimizing the undesirable effect of surprise, and helping insure that the issue of guilt or innocence is accurately determined.
At the same time, it avoids the problems suggested by both the prosecutors and the defenders. The major argument advanced by prosecutors is the risk of danger to their witnesses if their identities are disclosed prior to trial.
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