DISCLOSURE BY THE DEFENDANT (RECIPROCAL DISCOVERY)

Upon the request of the government, Rules 16(b)(1)(A) and (B) place a reciprocal duty upon the defendant to disclose those items which correspond to the section under which the defendant has sought discovery from the Government, but only if the defendant seeks discovery under some provision other than Rule 16 (a)(1) (A) or (B), and then only for items which correspond to the section under which the defendant made a request [i.e., if the defendant requests discovery of a “document” under Rule 16(a)(1)(C) and Government is entitled to like discovery under Rule 16(b)(1)(C), but not to discovery of “Reports of Examinations” under Rule 16(b)(1)(D)].

Disclosure from the defendant is subject to only those items “which the defendant intends to introduce as evidence in the trial.”

While mandatory disclosure by the criminal defendant has been approved under limited circumstances by the Supreme Court, Williams v. Florida, 339 US 943 (1970) (noting Florida statute requiring defendant to disclose alibi and witnesses); US v. Nobles, 422 US 225 (1975) (noting disclosure of defense witness-investigator’s report); the constitutionality of the disclosure requirements placed on the defendant by Rule 16(b)(1) has been criticized on the grounds it conflicts with the defendant’s Fifth Amendment privilege against self-incrimination.  See 39 F.R.D. 276, 277 (Douglas, J., dissenting) (dissenting with regard of the adopton of old Rule16(c));

see also US v. Sermon, 218 F.Supp. 871, 872 (W.D. Mo. 1963) (noting pre-rule case discussing discovery from a criminal defendant). But see Williams v. Florida, 399 US 78 (1970); US v. Nobles, 422 US 225 (1975).

TRIGGERING RECIPROCAL DISCOVERY

In other words a defendant will not invite reciprocal discovery by seeking statements under Rule 16(a)(1)(A), or the defendant’s criminal record under Rule 16(a)(1)(B), but will be required to provide corresponding materials to those he requests from the Government under Rule 16(a)(1)(C) and (D) respectively.

MATERIALITY OF GOVERNMENT REQUEST

There is no requirement that the Government’s request be material or reasonable. It has been said that the Rule is purely mechanical. See 8 MOORE’S FEDERAL PRACTICE § 16.08(s) at 121-22.

INFORMATION NOT SUBJECT TO DISCLOSURE

Rule 16(a)(2) provides as follows: “[e]xcept as provide in paragraphs )(A), (B), and (D) of subdivision (a)(1) this Rule does not authorize the discovery or inspection of reports, memoranda, or other government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses except as provided in 18 U.S.C. Sec. 3500.”

Work Product.

The first exemption in this subjection of Rule 16 is the work product exemption which is articulated in Hickman v. Taylor, 329 US 495 (1947), and reaffirmed in US v. Nobles, 422 US 225 (1975): “[a]t its core, the work product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.” The Nobles case then applied the privilege to a defense attorney’s investigator and “other agents that participate in the compilation of materials preparation for trial.”

Agent’s Reports.

Criminal reference report of the Department of Justice was held to be work product in US v. Bloom, 78 F.R.D. 591, 619-20 (E.D. Penn. 1977). I.R.S. special agent’s final report of his investigation was not discoverable in US v. Kessler, 61 F.R.D. 11 (D. Minn. 1973).

Reports Adopted by Witness.

“A writing prepared by a government lawyer relating to the subject matter of the testimony of a government witness that has been signed or otherwise adopted or approved by a government witness that has been signed or otherwise adopted or approved by a government witness is producible under the Jencks Act, and is not rendered non-producible under the Jencks Act, and is not rendered non-producible because a government lawyer interviews the witness and writes the ‘statement’.” Goldberg v. US, 425 US 94 (1976). See also US v. Strahl, 590 F.2d 10 (1st Cir. 1978), cert. den., 99 S. Ct. 1237 (1979).

Witness Statements.

The second exemption of Rule 16(a)(2) applies to “statements made by government witnesses or prospective government witnesses” except where the requirements of 18 U.S.C. Sec. 3500 are met.

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