Local Rule 116.1: DISCOVERY IN CRIMINAL CASES
D. Mass. — Criminal rule
RULE 116.1 DISCOVERY IN CRIMINAL CASES
(a) Discovery Alternatives.
(1) Automatic Discovery. In all felony cases and Class A misdemeanor cases (except those within the Central Violations Bureau), unless a defendant waives automatic discovery in accordance with subsection (b) below, all discoverable material and information in the possession, custody, or control of the government and the defendant, the existence of which is known, or by the exercise of due diligence may become known, to the attorneys for those parties, must be disclosed to the opposing party without formal motion practice at the times and under the automatic procedures specified in these local rules.
(2) Non-Automatic Discovery. In petty offense cases and Class A misdemeanor cases within the Central Violations Bureau, and in cases where the defendant waives automatic discovery in accordance with subsection (b) below, the defendant must obtain discovery directly through the provisions of the Federal Rules of Criminal Procedure in the manner provided under L.R. 116.3.
(b) Waiver. A defendant shall be deemed to have requested all the discovery authorized by Fed. R. Crim. P. 16(a)(1) unless that defendant files a Waiver of Request for Disclosure (the "Waiver") at arraignment or within such additional time as the court may allow upon motion made by the defendant at arraignment. If the Waiver is not timely filed, the defendant shall be subject to the correlative reciprocal discovery obligations of Fed. R. Crim. P. 16(b) and this rule and shall be deemed to have consented to the exclusion of time for Speedy Trial Act purposes as provided in L.R. 112.2(a). If the court allows the defendant additional time in which to file the Waiver, and no Waiver is timely filed, the 28-day period for providing automatic discovery established in subsection (c) of this rule shall begin to run on the last date allowed for filing the Waiver, and all dates for filing discovery letters and motions established in L.R. 116.3 shall be adjusted accordingly.
(c) Automatic Discovery Provided by the Government.
(1) Following Arraignment. Unless a defendant has filed the Waiver in accordance with subsection (b) above, within 28 days of arraignment (except a Rule 11 arraignment on an information), absent a contrary schedule established by the court pursuant to subsections (e) and (f) below, the government must produce to the defendant:
(A) Fed. R. Crim. P. 16 Materials. All of the information to which the defendant is entitled under Fed. R. Crim. P. 16(a)(1).
(B) Search Materials. A copy of any search warrant (with supporting application, affidavit, and return) and a written description of any consent search or warrantless search (including an inventory of items seized):
(i) that resulted in the seizure of evidence or led to the discovery of evidence that the government intends to use in its case-in-chief; or
(ii) that was obtained for or conducted of the defendant's property, residence, place of business, or person, in connection with investigation of the charges contained in the indictment.
(C) Electronic Surveillance.
(i) a written description of any interception of wire, oral, or electronic communications as defined in 18 U.S.C. § 2510, relating to the charges in the indictment in which the defendant was intercepted and a statement whether the government intends to use any such communications as evidence in its case-in-chief; and
(ii) a copy of any application for authorization to intercept such communications relating to the charges contained in the indictment in which the defendant was named as an interceptee or pursuant to which the defendant was intercepted, together with all supporting affidavits, the court orders authorizing such interceptions, and the court orders directing the sealing of intercepted communications under 18 U.S.C. § 2518.
(D) Consensual Interceptions.
(i) a written description of any interception of wire, oral, or electronic communications, relating to the charges contained in the indictment, made with the consent of one of the parties to the communication ("consensual interceptions"), in which the defendant was intercepted or which the government intends to use in its case-in-chief.
(ii) nothing in this subsection is intended to determine the circumstances, if any, under which, or the time at which, the attorney for the government must review and produce communications of a defendant in custody consensually recorded by the institution in which that defendant is held.
(E) Unindicted Coconspirators. As to each conspiracy charged in the indictment, the name of any person asserted to be a known unindicted coconspirator. If subsequent litigation requires that the name of any such unindicted coconspirator be referenced in any filing directly with the court, that information must be redacted from any public filing and be filed under L.R. 7.2 pending further order of the court.
(F) Identifications.
(i) A written statement whether the defendant was a subject of an investigative identification procedure used with a witness the government anticipates calling in its case-in-chief involving a lineup, show-up, photospread or other display of an image of the defendant.
(ii) If the defendant was a subject of such a procedure, a copy of any, recording, photospread, image or other tangible evidence reflecting, used in or memorializing the identification procedure.
(2) Exculpatory Information. The timing and substance of the disclosure of exculpatory evidence is governed by L.R. 116.2.
(d) Automatic Discovery Provided by the Defendant. Unless a defendant has filed the Waiver in accordance with subsection (b) within 28 days after arraignment (except a Rule 11 arraignment on an information), absent a contrary schedule established by the court pursuant to subsections (e) and (f), the defendant must produce to the government all material described in Fed. R. Crim. P. 16(b)(1)(A) and (B).
(e) Deadline for Automatic Discovery. At arraignment, the judicial officer shall set a date for completion of automatic discovery in accordance with this rule. The date may be extended on motion or request of any party.
(f) Alternative Discovery Schedule. The parties shall inform the court at arraignment, or as soon as practicable thereafter, of any issues that might require an alternative discovery schedule. Requests for an alternative discovery schedule in complex cases shall be liberally granted. The court shall not allow an alternative discovery schedule without providing a date for the completion of automatic discovery.
(g) Non-Automatic Discovery Provided by the Parties. If the defendant files the Waiver, all requests for discovery and reciprocal discovery, and all responses to such requests, shall be made in writing and filed with the court. Unless a greater or lesser amount of time is established by the court upon motion and for good cause shown, within 28 days of receiving a letter or motion requesting discovery, a party shall produce all discovery responsive to those requests to which it does not object and shall file a written response to those requests (if any) to which it does object, explaining the basis for its objections.
Adopted September 1, 1990; amended effective December 1, 1998; amended effective February 1, 2012.