The Defendant's Discovery Obligations in Federal Criminal Cases
A defendant charged in a federal criminal case has a reciprocal obligation to disclose information and documents to the government. The defendant's obligation, like the government's obligation, is governed by Rule 16 of the Federal Rules of Criminal Procedure. Under Rule 16, a defendant's obligation is contingent upon the defendant or his or her counsel having made a discovery request to the government and the government having complied. In general, if a defendant makes a request for discovery under Rule 16 and the government complies, then the defendant must disclose documents and objects, the results of examinations or tests, and expert witnesses.
Documents and Objects
If a defendant requests disclosure under Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure 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) the item is within the defendant's possession, custody, or control; and (2) the defendant intends to use the item in the defendant's case-in-chief at trial.
Results of Examinations or Tests
If a defendant requests disclosure under Rule 16(a)(1)(F) of the Federal Rules of Criminal Procedureand 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) the item is within the defendant's possession, custody, or control; and (2) the 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.
Expert Witnesses
The defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if (1) the defendant requests disclosure under the Federal Rules of Criminal Procedure and the government complies; or (2) the defendant has given notice under Rule 12.2(b) of the Federal Rules of Criminal Procedure of an intent to present expert testimony on the defendant's mental condition. This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications[.]
Information Not Subject to Disclosure
Except for scientific or medical reports, Rule 16(b)(1) does not authorize discovery or inspection of: (1) reports, memoranda, or other documents made by the defendant, or the defendant's attorney or agent, during the case's investigation or defense; or (2) a statement made to the defendant, or the defendant's attorney or agent, by (a) the defendant; (b) a government or defense witness; or (c) a prospective government or defense witness.
Continuing Duty to Disclose
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) the evidence or material is subject to discovery or inspection under the Federal Rules; and (2) the other party previously requested, or the court ordered, its production.