3. Documents and Tangible Objects

Any tangible piece of evidence which the Government intends to introduce into evidence must be disclosed pre-trial to the defendant upon proper request by the defendant for discovery under Rule 16. Thus, if the Government seeks to introduce into evidence business records, photographs, firearms, blood, clothing, x-rays or computer records, and if a request for discovery is made, these items must be made available to the defendant for pre-trial inspection. Here again, the intent is to insure that only accurate and reliable evidence is presented to a jury. For example, the Government may seek to introduce latent fingerprints of John Doe which were found at the teller’s window of the bank he allegedly robbed. Doe may want to examine the fingerprints in question and have them examined by his own expert if he contends someone else robbed the bank, or, he may want to examine pre-trial photographs taken by the bank’s surveillance cameras to demonstrate that the physical description of the robber does not match his own. Of course, whether the prints or the pictures are those of Doe is a question for the jury. But the rules provide for discovery of this tangible evidence so that the defendant will have meaningful cross-examination when it is offered against him before a jury.

If the Government intends to offer any tangible evidence during its case in chief, it must be disclosed pre-trial.  If evidence is possessed which has no probative value, is not exculpatory to the defendant, or otherwise has no bearing on the case, it need not be disclosed unless it belongs to or was obtained from the defendant. In the latter event, subsection (a)(1)(E)(iii) seeks to allow access of the defendant to his own property.

Under Rule 16, documents or tangible objects are discoverable only if in the possession of the Government. If probative objects or documents are in the possession of a third party not under Government control, the Government is not obligated to obtain the evidence for the defendant. Nor is the Government obligated to provide the defendant with evidence pertinent to another case.

Subsection (a)(1)(E)(i) specifically provides that the Government is obligated to disclose documents and tangible objects which are material to the preparation of the defense. This provision provides that the Government may not refuse to disclose evidence in its possession which it does not seek to introduce into evidence but nonetheless is arguably material to the preparation of the defense. Of course, the Government may not be in a position to know exactly what the defense is or will be. Nonetheless, however, and when in doubt over the issue of materiality, the evidence should be disclosed.

As a general rule, after indictment, federal prosecutors will provide a defendant with an inventory of all documents and tangible evidence in the Government’s possession. If tangible items may be conveniently reproduced, copies of same will usually be furnished immediately after arraignment. If documents are too voluminous to copy or certain types of evidence are otherwise incapable of being reproduced, inspection of same will be permitted at the earliest available opportunity. If a dispute over discovery arises, the defendant may file a written motion to compel production of the items in question. In this event, the Court will decide whether the items exist, are in the possession of the Government, and are material to the preparation of the defense.

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