7. Reciprocal Discovery

The burden of proof in a criminal case rests entirely with the Government. By law, criminal defendants are presumed to be innocent. Unless the Government proves a defendant’s guilt beyond a reasonable doubt to the unanimous satisfaction of a jury, the defendant must be acquitted.  During a trial, a criminal defendant bears no responsibility to prove his innocence. Under the Fifth Amendment to the Constitution, he also need not nor can he be compelled to testify in his own defense. And yet, under The Federal Rules of Criminal Procedure, if a criminal defendant seeks pre-trial disclosure of the Government’s evidence, he must reciprocate and disclose his own.

At first blush, the duty of reciprocal discovery seems incongruous to the production burdens imposed by law on the Government. Moreover, subsection (b) of Rule 16 appears unconstitutional because it creates a duty of disclosure on a criminal defendant who has an absolute right not to testify or incriminate himself in any way. However, Congress has not mandated reciprocal discovery in derogation of constitutional and statutory privileges conferred upon criminal defendants. Only if a defendant initiates the discovery process by requesting pre-trial disclosure of the Government’s evidence is he obligated to provide reciprocal discovery to the Government. If a defendant seeks no discovery, he has no duty to reveal any of his own evidence subject to a few limited exceptions. Thus, a defendant is not required under the Rules to provide the Government with any evidence whatsoever if he/she does not seek pre-trial disclosure of the Government’s case. If he does, however, Congress requires reciprocal discovery to prevent abuses that might be attempted through tailored or manufactured defenses specifically designed to comport with the pre-trial disclosures of the Government.

If a discovery request is made, subsection (b)(l)(A) requires that a defendant disclose to the Government pre-trial any documents or tangible documents which are within the control, custody and possession of the defendant and which the defendant intends to introduce into evidence during his defense. Subsection (b)(l)(B) requires pre-trial disclosure to the Government, upon a proper request for reciprocal discovery where a duty to disclose exists, of copies of scientific or forensic reports of physical and mental examinations which are in the possession, custody or control of the defendant and which he intends to utilize during his defense. However, a defendant is not obligated to disclose to the Government confidential memoranda or reports made by the defendant or his attorneys. The Government is also not entitled under Rule 16 to discover neither the identity of defense witnesses nor copies of statements made by them to the defendant or his attorneys.

The materials potentially discoverable by the Government correlate almost exactly with the materials obtainable by the defendant under Rule 16(a)(1)(E) and (F). However, before the Government may discover any of the evidence, there must be a discovery request from a defendant and the Government must have complied with the request.

Next Section: 8. Continuing Duty to Disclose

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