Rule 16(c ) provides as follows: “[I]f, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under this rule, he shall promptly notify the other party or his attorney or the court of the existence of the additional evidence or material.”

Application of Duty.

This rule applied in a situation where the government acquired new discoverable evidence before trial but after defense counsel had inspected evidence at U.S.

Attorney’s office; duty on government to re-notify defense counsel. US v. Bowers, 593 F.2d 376 (10th Cir. 1979), cert. den., 100 S. Ct. 106.

Failure to Disclose.

In order to preserve error under this rule, upon being confronted with the withheld evidence at trial, defense counsel must request continuance and recess of trial, and demonstrate prejudice. US v. Scruggs, 583 F.2d 238, 241-42 (5th Cir. 1978); US v. James, 495 F.2d 434 (5th Cir. 1974), cert. den., 419 US 899.

But see            US v. Pulido, 879 F.2d 1255, No. 2974 (5th Cir. 1989)(stating failure to disclose transcript to defendant was reversible error despite accused’s failure to demonstrate “particularized need”).

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