Criminal procedure: discovery

The cards

1. FRCrP 16Discovery and Inspection
2. FRCrP 16(a)(1)(A): Defendant’s Oral StatementUpon a defendant’s request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial.
3. FRCrP 16(a)(1)(B): Upon a defendant’s request, the government must disclose to the defendant, and make available for inspection, copying, or photographing, all of the following
   1. 1any relevant written or recorded statement by the defendant if: • the statement is within the government’s possession, custody, or control; and • the attorney for the government knows—or through due diligence could know—that the statement exists
   2. 2the 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
   3. 3the defendant’s recorded testimony before a grand jury relating to the charged offense
4. FRCrP 16(a)(1)(E): Upon a defendant’s request, the government must permit the defendant 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 government’s possession, custody, or control and
   1. 1the item is material to preparing the defense
   2. 2the government intends to use the item in its case-in-chief at trial
   3. 3the item was obtained from or belongs to the defendant
5. FRCrP 16(a)(1)(F): Upon a defendant’s request, the government must permit a defendant 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
   1. 1the item is within the government’s possession, custody, or control
   2. 2the attorney for the government knows—or through due diligence could know—that the item exists
   3. 3the item is material to preparing the defense or the government intends to use the item in its case-in-chief at trial
6. FRCrP 16(a)(1)(G)(i): Duty to DiscloseAt the defendant’s request, the government must disclose to the defendant, in writing, the information required by (iii) for any testimony that the government intends to use at trial under Federal Rule of Evidence 702, 703, or 705 during its case-in-chief, or during its rebuttal to counter testimony that the defendant has timely disclosed under (b)(1)(C). If the government requests discovery under the second bullet point in (b)(1)(C)(i) and the defendant complies, the government must, at the defendant’s request, disclose to the defendant, in writing, the information required by (iii) for testimony that the government intends to use at trial under Federal Rule of Evidence 702, 703, or 705 on the issue of the defendant’s mental condition.
7. FRCrP 16(a)(1)(G)(iii): The disclosure for each expert witness must contain
   1. 1a complete statement of all opinions that the government will elicit from the witness in its case-in-chief, or during its rebuttal to counter testimony that the defendant has timely disclosed under (b)(1)(C)
   2. 2the bases and reasons for them
   3. 3the witness’s qualifications, including a list of all publications authored in the previous 10 years
   4. 4a list of all other cases in which, during the previous 4 years, the witness has testified as an expert at trial or by deposition
8. FRCrP 16(a)(2): Information Not Subject to DisclosureExcept as permitted by Rule 16(a)(1)(A)–(D), (F), and (G), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.
9. FRCrP 16(b)(1)(A): 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
   1. 1the item is within the defendant’s possession, custody, or control
   2. 2the defendant intends to use the item in the defendant’s case-in-chief at trial
10. FRCrP 16(b)(1)(B): If a defendant requests disclosure under 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
    1. 1the item is within the defendant’s possession, custody, or control
    2. 2the 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
11. FRCrP 16(c): A party who discovers additional evidence or material before or during trial must promptly disclose its existence to the other party or the court if
    1. 1the evidence or material is subject to discovery or inspection under this rule
    2. 2the other party previously requested, or the court ordered, its production
12. FRCrP 16(d)(1): Protective and Modifying OrdersAt any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party’s statement under seal.

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