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May 2011

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This article is in the news archives --- for current news go to the Third Branch News.

 

Judiciary Split on Need for Rule 16 Changes


Do federal prosecutors and defense attorneys understand their pretrial obligations to disclose exculpatory and impeachment information?* The question is at the heart of a recent survey of federal judges asking if Federal Rule of Criminal Procedure 16 should be amended. As it turns out, federal judges are split on the issue.

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Perceptions Regarding Federal Prosecutors' Comprehension of Disclosure Obligations
Perceptions Regarding Defense Attorneys' Comprehension of Disclosure Obligations

Broader Disclosure Districts: Of the ninety-four federal districts, thirty-eight districts have local rules and/or standing orders that impose requirements beyond those of Rule 16 for disclosure of exculpatory and impeachment material, in essence requiring "broader disclosure" than Rule 16 provides.

Rule 16 governs discovery and inspection of evidence in the 86,000 federal criminal cases filed annually in federal courts. It also imposes on the government “a continuing duty to disclose additional evidence or materials subject to discovery under the rule, if the government discovers such information prior to or during the trial.” Thirty-eight districts have a local rule or standing order that codifies the government’s obligations to disclose exculpatory and/or impeachment material, and/or provides timing requirements for the disclosure of the material.

“Whether and how to address criminal discovery through Rule 16 has been on the agenda of the Committee for over 40 years,” said Judge Richard C. Tallman (9th Cir.), the chair of the Judicial Conference Advisory Committee on Criminal Rules. “Federal cases tend to be more complicated than state cases, generating more evidence, more data, and more electronic records. That poses problems for prosecutors and especially for defense attorneys who need to know about the evidence relevant to guilt or innocence and how to organize it all for trial. We wanted to see if there was something we should do to amend Rule 16 to make the exchange of information quicker and more efficient to insure fairness to the defendant, while also respecting the privacy and security of witnesses.”

In June 2010, at the request of the Advisory Committee on Criminal Rules, the Federal Judicial Center conducted the largest survey in the Center’s history, a national survey of all federal district and magistrate judges, U.S. attorneys’ offices, and federal defenders, and a sample of defense attorneys in criminal cases that terminated in calendar year 2009. Of the 1,505 district judges who received a survey, 644 or 43 percent completed the online survey.

As part of the survey, judges were asked about their courts’ local rules and policies requiring disclosure by prosecution and defense; whether or not federal prosecutors followed a consistent policy or approach with regard to pretrial discovery and disclosure obligations; the number of cases in which judges felt disclosure of exculpatory information resulted in threats or harm to a prosecution witness; and how often prosecutors and defense attorneys may have violated their disclosure obligations.

“Whether and how to address criminal discovery through Rule 16 has been on the agenda of the Committee for over 40 years.”

Judge Richard C. Tallman (9th Cir.)

When asked, “Do you favor amending Rule 16 to address pretrial disclosure of exculpatory and Giglioinformation*,” the 644 judges split evenly on the question. However, greater support for amending Rule 16 was found among judges in districts with local rules and/or orders that require broader disclosure of these materials than required by Rule 16.

The overwhelming majority of judges—94 percent—thought that federal prosecutors usually or always understand their disclosure obligations. Only 78 percent of judges thought the same of defense attorneys. And 88 percent of judges felt federal prosecutors usually or always follow a consistent approach to disclosure. Sixty percent of the judges reported having no cases during the past five years in which they concluded a federal prosecutor or defense attorney had failed to comply with disclosure obligations. Overall, judges reported high levels of satisfaction over the compliance by federal prosecutors and defense attorneys with their disclosure obligations.

The Department of Justice, while opposing any proposed amendment to Rule 16, has implemented nationwide training initiatives to increase awareness among prosecutors of their discovery obligations in criminal cases. The training was recently extended to 26,000 federal agents, and in 2010 a policy memo from then-Deputy Attorney General David Ogden provided detailed guidance to all federal prosecutors on pretrial disclosure procedures.

When asked, “Do you favor amending Rule 16 to address pretrial disclosure of exculpatory and Giglio information,” the 644 judges split evenly on the question.

Overall, Tallman’s committee has been impressed with the steps the DOJ has taken and will take to ensure that prosecutors assess and meet their disclosure obligations. Revisions to the U.S. Attorney’s Manual have clarified the disclosure of material and exculpatory evidence, and a DOJ working group has been tasked with review of the department’s policies and practices regarding criminal discovery issues. The position of the National Coordinator for Criminal Discovery Initiatives has been created and the advisory committee heard from the person appointed to that position. In addition, each U.S. attorney’s office has been directed to develop a local discovery policy consistent with the law and local rules and practices.

... the committee was not convinced that the problem is so severe as to warrant a rule change when existing Supreme Court authority on a prosecutor’s disclosure obligations is clear and for which substantial sanctions are available for non-compliance.

“The committee has decided against recommending a change in Rule 16 at this time,” says Tallman. “The survey shows there is a lack of consensus in the federal Judiciary as to whether an amendment is necessary.” He adds that the committee is not abandoning efforts to make improvements in this area, but is recommending alternatives that could be implemented more quickly and effectively through the FJC: better training of judges in managing criminal discovery pretrial, changes to the District Judge’s Benchbook to include discovery checklists to aid in case management, and publication of a “Best Practices Guide for Criminal Discovery.” “No rule can effectively prevent intentional misconduct by prosecutors who knowingly withhold exculpatory information,” Tallman said. “But the committee was not convinced that the problem is so severe as to warrant a rule change when existing Supreme Court authority on a prosecutor’s disclosure obligations is clear and for which substantial sanctions are available for non-compliance.”

*Material tending to impeach the character or testimony of the prosecution witness in a criminal trial.