TO:

TO: AFPD Steve Kalar

FR: Neil Swartzberg, Law Clerk

CC: Chris Scott, Research Attorney

DT: 6/23/00 (Revised)

RE: Discovery: Pretrial Disclosure of Defendant=s Rebuttal Evidence

_____________________________________________________________

Question Presented

Is the defendant required to disclose rebuttal evidence -- in the form of witness names and testimony or exhibits -- during pretrial discovery?

Brief Answer

No. The defendant is generally not required to disclose rebuttal evidence during pretrial discovery.

Analysis

Disclosure by the defendant is primarily limited to that required by Rule 16 of the Federal Rules of Criminal Procedure which was designed to, Aexpand the scope of pretrial discovery . . . [and] guard against . . . possible abuses.@ United States v. Iglesias, 881 F.2d 1519, 1523 (9th Cir. 1989). The majority of case law interpreting Rule 16 focuses on the government=s, rather than the defendant=s, duty to disclose. Therefore, this memo first provides an analysis of the defendant=s duty to disclose rebuttal evidence as required by Rule 16(b) and then draws analogies from case law discussing the government=s duty to disclose such evidence under Rule 16(a). Additionally, some discussion of the courts= inherent power to regulate disclosure is also provided.

I. Federal Rule of Criminal Procedure 16(b): Reciprocal Disclosure by the Defendant

Rule 16(b), however, does not specifically address the defendant=s duty to disclose evidence in the form of witness testimony unless that witness is an expert. If the witness is an expert, Athe defendant . . . shall permit the government to inspect or copy or photograph any results or reports of physical or mental examinations and of scientific test or experiments . . . which the defendant intends to introduce as evidence in chief at trial or which were prepared by a witness whom the defendant intends to call at the trial.@ Fed. R. Crim. P. 16(b)(1)(B) (emphasis added); see also Fed. R. Crim. P. 16(b)(1)(C) (requiring reciprocal disclosure of summaries of expert witness testimony when the defendant intends to use such testimony as evidence of mental competency). The reciprocal disclosure requirement of Rule 16(b)(1)(B) may also apply to expert rebuttal witnesses= reports, as well as expert witnesses who will testify in the defendant=s case-in-chief. In fact, the Advisory Committee note supports such a reading, stating, A[i]n cases where both prosecution and defense have employed experts . . . , it seems as important for the government to be able to study the results reached by defense experts which are to be called by the defendant as it does for the defendant to study those of the government experts.@ Fed. R. Crim. P. 16(b)(1)(B) Advisory Committee=s note.

Rule 16(b) appears to deal with tangible evidence. With the exception of the Rule 16(b)(1)(C) requirement to create written summaries of expert testimony regarding a defendant=s mental competency, Rule 16(b) does not explicitly require the defendant to disclose any non-tangible rebuttal evidence. See, e.g., United States v. Peters, 937 F.2d 1422, 1425 (9th Cir. 1991) (holding that the Rule 16(b)(1)(B) disclosure requirement, Aclearly cannot pertain to oral information,@ and stating that the Rule 16(b)(1)(A) disclosure requirement, Aindisputably [refers to] information contained in some tangible form.@).^[3]^,
[4]

In the limited case law discussing the scope of reciprocal disclosure, there is support for a restrictive reading of the rule, that is, not requiring disclosure beyond that for which the rule expressly provides. See, e.g., United States v. Bailin, 816 F. Supp. 1269, 1275 (N.D. Ill. 1993) (denying government request for disclosure by defendant of evidence concerning defense based on mental disease or defect, even though the defendant had indicated the possibility of raising such a defense and utilizing expert testimony).^[5] In its ruling, the court in Bailin observed that, A[d]iscovery under Rule 16 is very limited in scope,@ and that not requiring disclosure was, Aparticularly appropriate where, as here, defendant may . . . decide not to present the defense [of mental incapacity].@ Id.

Just as the non-disclosed material that may not have be used in the defendant=s case-in-chief was granted protection in Bailin, so should the court protect the defendant=s non-expert rebuttal evidence. In either instance, the government could be given access to information that is potentially damaging to the defendant (or useful to the government), even though the relevancy of that evidence might never materialize at trial -- either because the defendant or government does not raise that particular relevant issue in their respective cases-in-chief.

II. Analogies to Federal Rule of Criminal Procedure 16(a): Disclosure by the Government

Further support for this reading of Rule 16(b) can be drawn from the case law and commentary discussing the government=s duty to disclose under Rule 16(a).^[6] While the government is required by Rule 16(a)(1)(C) to disclose all documentary and tangible evidence to be used as Aevidence in chief,@ it is not required to disclose impeachment or rebuttal evidence. See United States v. Givens, 767 F.2d 574, 582-84 (9th Cir. 1985) (allowing government to introduce non-disclosed exhibits and testimony to impeach witness and rebut defense testimony); United States v. Delia, 944 F.2d 1010, 1016-18 (2d. Cir. 1991) (prosecution not required under Rule 16 to disclose rebuttal evidence to help defendant decide whether to pursue a particular theory of defense); see also Moore=s Federal Practice ' 616.05[1][b][I].^[7]

The Ninth Circuit in Givens considered a post office robbery with a shoe print found at the crime scene. See Givens, 767 F.2d at 582-84. In that case, the government did not plan to introduce a pair of shoes capable of making that type of shoe print or to call witnesses who had seen the defendant wearing a similar pair of shoes on other occasions. See Givens, 767 F.2d at 583-84. The defendant, however, claimed in his case-in-chief, that: 1) another person was responsible for the robbery; 2) the shoe print from the crime scene did not match that made by his only pair of shoes; and, 3) he was at his cousin=s home at the time of the robbery. See Givens, 767 F.2d at 582. The defendant=s wife testified that the defendant owned only one pair of shoes and three other defense witnesses testified that the defendant was elsewhere at the time of the robbery. See id.

In Delia, which involved a check forging scheme and a superseding indictment, the defendant requested a pretrial examination of the persons involved in the preparation of the original indictment. The defendant=s theory was that the government had fabricated its original case and then drastically changed its version of the facts (in the superceding indictment) in response to the defendant=s expert evidence showing that the defendant did not forge the three checks specifically referred to in the original indictment. See Delia, 944 F.2d at 1016. The government agreed to the defendant=s request, but warned that the defendant would be Aopening the door@ to otherwise inadmissable rebuttal evidence. The defendant then requested disclosure of that rebuttal evidence in order to decide whether to pursue the original request for pretrial examination of the people who drafted the original indictment. See Delia, 944 F.2d at 1016-17. In its affirmation of the lower court=s denial of such a disclosure request, the Court in Delia said, A[n]one of these requirements [of Rule 16(a)(1)(A-C)] covers the government=s proposed rebuttal evidence.@ Id. at 1018. In fact the Court went on to mention the possibility of such a disclosure requirement being vested in the courts= inherent powers, but concluded, A[w]e know of no legal principle that requires the prosecution to disclose its proposed rebuttal evidence to the defendant, to help him decide whether to pursue a particular contention.@ Id.

With regard to Rule 16(a)(1)(D) (reports of expert witnesses -- analogous to the defendant=s reciprocal disclosure Rule 16(b)(1)(B)), the government is also only obliged to disclose the results of those reports it intends to use in its case-in chief (unless material to the defense). See United States v. DiCarlantonio, 870 F.2d 1058, 1063 (6th Cir. 1989).^[9] The same rationale is applied to summaries of expert testimony under Rule 16(a)(1)(E) (analogous to the defendant=s reciprocal disclosure requirement under Rule 16(b)(1)(C)). See United States v. Richmond, 153 F.R.D. 7, 8 (D. Mass. 1994) (holding rebuttal evidence used by government not precluded by Rule 16(a)(1)(E) where there is no intent to call expert during case-in-chief).

It is generally recognized that district courts (and states) retain inherent power to regulate disclosure, insofar as such regulation assures, the proper and orderly administration of justice. United States v. Jackson, 508 F.2d 1001 (7th Cir. 1975) (acknowledging district court=s authority to grant (or deny) defendant=s request for witness list); accord United States v. Richter, 488 F.2d 170, 173-74 (9th Cir. 1973). As a result, there is Supreme Court and Circuit case law that could be read as authorizing a requirement (under a district court order or local or state rules) that the defendant must disclose rebuttal evidence. See, e.g., Williams v. Florida, 399 U.S. 78, 80-86, 90 S.Ct. 1893, 1895-98 (1970) (holding that a state disclosure rule requiring notice of alibi and alibi witnesses did not violate Adue process,@ even though such disclosure would help the government obtain rebuttal evidence); see also Tyson v. Trigg, 50 F.3d 436 (7th Cir. 1995) (holding criminal defendants can be subjected to reasonable discovery rules). However, any such requirement must still comply with due process. Reasonable arguments could be made that a even a reciprocal rebuttal evidence disclosure requirement actually operates to the unfair detriment of the defendant; i.e. that such an exchange is not really a Atwo-way street@ or a fair trade of information. See Wardius v. Oregon, 412 U.S. 470, 475-77, 93 S.Ct. 2208, 2212-13 (1973) (striking Oregon alibi witness discovery statute because it was without sufficient reciprocity safeguards).

It is, however, important to note that unlike other Circuits, the Ninth Circuit has held that district court orders requiring mandatory reciprocal disclosure of witness lists and summaries of witness testimony violate Rule 16. See United States v. Hicks, 103 F.3d 837, 841 (9th Cir. 1996); cf. United States v. Napue, 834 F.2d 1311, 1318 (7th Cir. 1987).^[10]

2. Rule 26.2

Rule 26.2, which codifies the Jencks Act (see 18 U.S.C. ' 3500) and the holding in United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160 (1975), governs disclosure of prior statements by witnesses who will be called by the government or defendant in their respective cases-in-chief. See Fed. R. Crim. P. 26.2. Under this rule, after a witness for the defense (other than the defendant) testifies on direct examination, the defendant must disclose any statement by that witness which relates to the witness= testimony. See id.

In the cases interpreting the relationship between Rule 16(a) (government disclosure) and Rule 26.2, courts have held that when both Rule 26.2 and Rule 16 apply, the timing of disclosure is controlled by Rule 26.2. Disclosure is thus to be made after the witness testifies. See, e.g., United States v. Jones, 612 F.2d 453, 455 (9th Cir. 1979).

3. Rule 12.1

Disclosure requirements that apply when the defendant asserts an alibi defense are governed by Rule 12.1, which has a unique set of rules regarding rebuttal evidence. See Fed. R. Crim. P. 12.1.

4. Exceptions to Rule 16(b):

The work-product rule and the Fifth Amendment of the Constitution are exceptions to Rule 16(b)(1) reciprocal disclosure requirements. See Fed. R. Crim. P. 16(b)(2); U.S. Const. amend. V.

^[1]In Black=s Law Dictionary, evidence-in-chief is defined as, A[e]vidence used by a party in making its case-in-chief.@ Black=s Law Dictionary 577 (7th ed. 1999). The term case-in-chief is, in turn, defined as, A1. The evidence presented at trial by the party with the burden of proof. 2. The part of a trial in which a party presents evidence to support its claim or defense. Cf. Rebuttal.@ Id. at 207. In contrast to evidence-in-chief, rebuttal evidence is, A[e]vidence offered to disprove or contradict the evidence presented by an opposing party.@ Id. at 579; see also United States v. Carter, 70 F.3d 146, 149 (D.C. Cir. 1995) (A[r]ebuttal evidence is admitted for the purpose of explaining or refuting evidence offered by the other side@); United States v. Tejada, 956 F.2d 1256 (2d Cir. 1992) (A[t]he function of rebuttal evidence is to explain or rebut evidence offered by an opponent@).

^[2]The defendant=s reciprocal duty to disclose under Rule 16(b) is not triggered unless the defendant requests disclosure by the government under Rule 16(a) and the government complies with that request. See United States v. Kraselnick, 702 F. Supp. 480 (D. N.J. 1988) (defendants= reciprocal discovery obligations did not arise unless and until government had complied with its own discovery obligations); see also United States v. Felt, 502 F. Supp. 71 D. D.C. 1980) (even though the government had voluntarily provided defense with pre-trial disclosure of certain witnesses= written statements, the government was not entitled to receive copies of prior statements of any witnesses that the defendants intended to call at trial (until after those witnesses testified)).

The defendant=s reciprocal disclosure obligations can also arise from an informal disclosure request that is complied with by the government. See United States v. Thuna, 103 F.R.D. 182 (D. P.R. 1984).

NOTE: A limited form of disclosure is also triggered if the defendant gives notice under Fed. R. Crim. P. 12.2(b) of intent to present expert testimony on defendant=s mental condition. See Fed. R. Crim. P. 16(b)(1)(C).

^[3]Peters was decided before Rule 16(b)(1)(C) was created. Therefore, if the defendant makes a disclosure request under Rule 16(a)(1)(E) or files notice under Rule 12.2(b), the expert would probably be required to summarize his/her anticipated testimony -- even if not memorialized in records or reports. See Fed. R. Crim. P. 16(b)(1)(C); see also Peters, 937 F.2d at 1425 n.1.

^[4]Even when the Rule 16(b)(1)(B) requirement regarding expert reports applies, disclosure is not required when the expert merely makes writings or notations without engaging in a full Aexamination@ of the defendant, or when the medical examination or scientific/experimental test was not made Ain connection with the particular case.@ See Peters, 937 F.2d at 1426; Carol A. Brook, Federal Criminal Discovery, 1999 Federal Defender Program (Savannah, Georgia) at 7, citing Fed. R. Crim. P. 16(b)(1)(B) (unpublished article).

^[5]Bailin was based on a version of Rule 16 that did not contain subsection (b)(1)(C), which would have required disclosing a summary of the anticipated expert testimony. See Fed. R. Crim. P. 16(b)(1)(C).

^[6]The language of Rule 16(a)(C-E) mirrors that of Rule 16(b)(A-C). Compare Fed. R. Crim. P. 16(a)(1)(C-E) with (b)(1)(A-C). NOTE: The government is also required under Rule 16(a)(1)(C) to disclose evidence, Amaterial to the preparation of . . . defense,@ regardless of whether that evidence will be introduced as the government=s evidence in chief. See Fed. R. Crim. P. 16(a)(1)(C).

^[7]If the impeachment or rebuttal evidence is material, the government is still under a duty to disclose. See United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993) (government must disclose material evidence; instant case evidence held immaterial); see also Moore=s Federal Practice ' 616.05[1][b][I]; but see United States v. Roth, 736 F.2d 1222, 1228 (8th Cir.), cert. denied, 469 U.S. 1058 (1984) (appellate court ignored materiality standard in stating that discoverable document from the government must be intended for use by the government in its case-in-chief (or obtained from or belong to the defendant)). However, the defendant is not subject to a similar duty because there is no materiality requirement of reciprocal disclosure under Rule 16(b)(1)(A). See Fed. R. Crim. P. 16(b)(1)(A).

^[8]The Court in Givens also discussed the disclosure requirements for rebuttal witness as required by Federal Rule of Criminal Procedure 12.1 (alibi defenses). In this regard, the court said that the government was not aware that the defendant would claim another individual was responsible for the robbery or that the defendant=s wife would testify that he owned only one pair of shoes. Applying a rationale similar to its Rule 16 analysis, the Court held that the non-disclosed evidence did not relate to the defendant=s alibi, was used primarily for impeachment purposes, and, therefore, did not come under the Rule 12.1 rebuttal evidence disclosure requirements. See Givens, 767 F.2d at 584.

^[9]It is important to note that the language regarding disclosure of expert reports and results by the government under Rule 16(a)(1)(D) is, in one important aspect, more limited than that by the defendant under Rule 16(b)(1)(B). The former states, Athe government shall permit the defendant to inspect and copy . . . [results or eports] . . . which are . . . intended for use by the government as evidence in chief at trial,@ while the latter says, Athe defendant . . . shall permit the government to inspect and copy . . . [results or reports] . . . which the defendant intends to introduce as evidence in chief at trial or which were prepared by a witness whom the defendant intends to call at the trial.@ Fed. R. Crim. P. 16(a)(1)(D), (b)(1)(B) (emphasis added). See supra at 2-3.

^[10]NOTE: The Criminal Local Rules section on AProcedures for Disclosure@ does not require disclosure of rebuttal evidence. See Crim. L. R. 16-1 (March, 2000). Significantly, however, the section on pretrial conferences specifically excepts witness names and tangible evidence from inclusion in the Pretrial Conference Statement. The relevant section states:

(b) Pretrial Conference Statement. Unless otherwise ordered, not less than 4 days prior to the pretrial conference, the parties shall file a pretrial conference statement addressing the matters set forth below, if pertinent to the case:

(1) Disclosure and contemplated use of statements or reports of witnesses under the Jencks Act, 18 U.S.C. ' 3500, or Fed. R. Crim. P. 26.2;

(2) Disclosure and contemplated use of grand jury testimony of witnesses intended to be called at the trial;

(3) Disclosure of exculpatory or other evidence favorable to the defendant on the issue of guilt or punishment;. . .

(9) Pretrial exchange of lists of witnesses intended to be called in person or by deposition to testify at trial, except those who may be called only for impeachment or rebuttal;

(10) Pretrial exchange of documents, exhibits, summaries, schedules, models or diagrams intended to be offered or used at trial, except materials that may be used only for impeachment or rebuttal; . . .

(15) Any other matter which may tend to promote a fair and expeditious trial.

Crim. L. R. 17.1-1 (italics added).