As specified in subsection (a)(1)(B) of Rule 16, a criminal defendant is entitled to pre-trial discovery of all written or recorded statements in the possession, custody or control of the Government. Originally, this rule was enacted to insure that a defendant would be provided with a copy of any alleged confession. However, as construed by the Courts, the rule extends to all written or recorded statements whether inculpatory or exculpatory. Thus, if a defendant’s statements are tape recorded by an undercover agent during the pendency of the investigation, for example, if an indictment is thereafter returned, a copy of the recording will be discoverable under this provision of Rule 16. Because the defendant’s written or recorded statements may be the core of the Government’s case, Congress has decided that the accused should have pre-trial access to them. The goal, once again, is to provide the defendant with sufficient opportunity to examine the evidence so as to be able to attack its reliability or authenticity if there is a legal or factual issue about either.
With respect to oral statements of Defendants, section (a)(1)(A) provides pre-trial access to any alleged oral confession. Here again, however, the rule is not limited to alleged confessions per se. Indeed, a defendant may have proclaimed his innocence at length in response to questioning before and after his arrest, but nonetheless, is entitled under Rule 16 to discover pre-trial the substance of what the Government contends he said. The reason: The Government’s version of the statement may differ from the defendant’s and even slight variations could be consequential at a jury trial.
The substance of oral statements are discoverable only if the Government intends to offer the statement into evidence and the statement was made in response to interrogation by a person known to the defendant to be a Government agent. If an undercover agent, not known to the defendant as such, met with the defendant and did not tape record his statements, but did include the substance of any oral statements against interest in his report of investigation, the defendant would not be able to discover this statement under Rule 16. This limitation on discovery may protect the identity of undercover agents and confidential informants investigating others. Thus, in subsection (a)(1)(A) of Rule 16 we see an example of the balance to the rules. Some provisions seem to favor the defendant and others the Government, but the intent of all is to seek and preserve justice for both.
If the Government does not seek to place its imprimatur on an alleged oral statement made by a defendant, pre-trial discovery will probably be denied with respect to all other statements which may be introduced against the defendant during a trial before a jury. Oral statements made to non-government agents, laypersons and third-party witnesses are therefore not discoverable under Rule 16. Were the rules otherwise, the defendant would be able to discover pre-trial the identity of many Government witnesses. By providing that oral statements made by a defendant to a third-party are not discoverable, Congress has preserved the pre-trial confidentiality of witness identities and helped to reduce incidents of intimidation.
As stated above, however, and as we shall see later in this chapter, the boundaries of Rule 16 are not sacrosanct and in some instances such oral statements may be discoverable. As a general rule, however, a defendant’s oral statements to non-government third-party witnesses are not discoverable.