8. Continuing Duty to Disclose


At the time a discovery request is made, the Government may not have in its possession and control all of the evidence it ultimately will rely on and introduce during its case in chief. Indeed, some evidence may be obtained only a matter of days or even hours before trial.  In this situation, regardless of exactly when the evidence is obtained, the Government is obligated to notify defense counsel of the recent acquisition so that inspection may be accomplished at the earliest available opportunity.  Indeed, even if items of evidence are obtained during trial, the evidence must be disclosed as soon as it is practicable to do so, provided a discovery motion and request has already been made. A defendant has identical reciprocal discovery duties if he is under a duty to disclose as a result of his own discovery requests. This continuing obligation is consistent with the objectives of the Rules in general: to enable both parties to be better informed before trial and thereby eliminate unfair advantages to either side.

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