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FED. R. CRIM. P. Rule 16 FED. R. CRIM. P. Rule 26.2

Brady v. Maryland

18 U.S.C. § 3500 (Jencks Act).


Full pre-trial discovery is one of the most critical functions which may be served by defense counsel. Without full and vigorous discovery, the defense is often in no position to make an informed evaluation of the case, engage in plea negotiations, or prepare for trial.

The Federal Government’s vast investigatory resources far overshadow that of even the most affluent criminal defendant, and unless the courts adopt a more permissive attitude towards defense discovery this imbalance will threaten the very foundation of the adversary system in the criminal process. See Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968).

“[There is a ] growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice… It is also reflected in the expanding body of materials, judicial and otherwise, favoring disclosure in criminal cases analogous to the civil practice… In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact. Exceptions to this are justifiable only by the clearest and most compelling considerations.” Dennis v. US, 384 US 855, 870-871, 873 (1966).

Full discovery by the defendant is critically intertwined with his constitutionally protected rights of equal protection, due process, confrontation and effective assistance of counsel guaranteed by the Fifth and Sixth Amendments. 8 MOORE’S FEDERAL PRACTICE 16.02[1]. The Supreme Court has emphasized the Constitutional ramification of this imbalance between the Government and the accused with respect to investigative resources. In Wardius v. Oregon, the Court reiterated that the “due process” clause of the Fifth Amendment “ …does speak to the balance of forces between the accused and his accuser.” Wardius v. Oregon, 412 US 470, 474 (1973). And, that where the prosecution’s vast resources provide it with “non-reciprocal benefits” in preparing its case, and “…when the lack of reciprocity interferes with the Defendant’s ability to secure a fair trial” such constitutes a violation of the defendant’s Constitutionally protected right to due process, Wardius, 412 U.S. at 474 n.5.


“[T]he prosecution’s inherent information gathering advantages suggest that if there is to be imbalance in discovery rights, it should work in the Defendant’s favor.” Wardius v. Oregon, 412 US 470, 474, n. 9 (1973).

However, in a case dealing with the authenticity of a government witness participating as a “defendant” in defense strategy sessions with other defendants and their counsel, the Supreme Court noted in dicta that “there is no general Constitutional right to discovery in a criminal case, and Brady did not create one.” Weatherford v. Bursey, 429 US 545 (1977).

This imbalance is nowhere more readily apparent than in the context of jury selection data. See Losavio v. Mayber, 456 P.2d 1032, 1035 (Col. 1972) (noting police records of prospective jurors utilized by prosecution, should be discoverable by the defense). “[T]he requirements of fundamental fairness and justice dictate no less.” Losavio v. Mayber, 456 P.2d at 1035 (Col. 1972). See also Commonwealth v. Smith, 215 NE.2d 897, 901 (Mass. 1966) (noting such information “should be as available to the defendant as the district attorney”); People v. Aldrich, 209 NW.2d 796 (Mich. App. 1973)(stating information compiled by prosecutors regarding prospective jurors’ adverse contacts with police discoverable under Brady v. Maryland); People v. Murtisban, 631 P.2d 446 (Cal. 1981)(holding that depriving one unable to afford such investigations of prospective jurors discovery of such jury dossiers compiled by the prosecution violated “due process”, noting that such a historic “pattern of inequality reflects on the fairness of the criminal process”). Contra Wansler v. Stoe, No. 43655,   SW.2d   , (Ga. Jan. 27, 1987).

FED. R. CRIM. P. Rule 16 governs general discovery in federal criminal trials. It provides for broader discovery by both the defense and the prosecution, see Advisory Committee Note, Amendments to FED. R. CRIM. P. Rule 16 (1974), and substitutes the seemingly permissive language of the old rule (“the government shall permit”), placing a duty upon the parties to provide the requested materials “without the necessity of a court order unless there is some dispute as to whether the matter is discoverable or a request of a protective order. Advisory Committee Note, Amendments to FED. R. CRIM. P. Rule 16 (1974). This would indicate a change in the method of obtaining discovery, requiring a request of the U.S. Attorney detailing the discovery desired by the Defendant, and resort to the court only upon failure of the Government to comply or where a dispute arises. It is suggested that the request for discovery from the Government be in writing, set out in detail the material desired (to avoid the claim that your request is a “fishing expedition”)

and copies filed with the clerk to be made part of the record in order to afford meaningful appellate review. Care should be taken that a request for discovery is made upon the Government at the earliest opportunity possible as the motion to the court, in the event such discovery is not forthcoming, must be filed within the time set by the trial court under Rule 12(e) for pre-trial motions.

Rule 16 is divided into four major sections:

  1. Disclosure of evidence by the Government,
  2. Disclosure of evidence by the Defendant,
  3. Continuing duty to disclose,
  4. Regulation of
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