Local Rule CR 16.1: Production by the Government

CR 16.1 Production by the Government

(a) Unless the parties otherwise agree and where not prohibited by law, the government shall disclose to the defense all information "favorable to an accused" that is "material either to guilt or to punishment" under Brady v. Maryland, 373 U.S. 83, 87 (1963), and that is known to the government. This requirement applies regardless of whether the information would itself constitute admissible evidence. The information shall be produced in a reasonably usable form unless that is impracticable; in such a circumstance, it shall be made available to the defense for inspection and copying. Beginning at the defendant's arraignment and continuing throughout the criminal proceeding, the government shall make good-faith efforts to disclose such information to the defense as soon as reasonably possible after its existence is known, so as to enable the defense to make effective use of the disclosed information in the preparation of its case.

(b) The information to be disclosed under (a) is favorable to the defendant because it:

(1) is inconsistent with or tends to negate the defendant's guilt as to any element, including identification, of the offense(s) with which the defendant is charged;

(2) casts doubt on the admissibility of evidence that the government anticipates offering in its case-in-chief;

(3) casts doubt on the credibility or accuracy of any evidence, including witness testimony, the government anticipates offering in its case-in-chief;

(4) may be relied upon to support an argument for a lesser punishment at sentencing.

(5) tends to mitigate the charged offense(s) or reduce the potential penalty;

(6) tends to establish an articulated and legally cognizable defense theory or recognized affirmative defense to the offense(s) with which the defendant is charged; or

(7) may be used for impeachment purposes. Such information includes but is not limited to:

(i) information regarding whether any promise, reward, or inducement has been given by the government to any witness it anticipates calling in its case-in-chief; and

(ii) information that identifies all pending criminal cases against, and all criminal convictions of, any such witness.

(c) As impeachment information described in (b)(7) and witness-credibility information described in (b)(3) may be dependent on which witnesses the government intends to call at trial, this rule does not require the government to disclose such information until 7 days before trial unless otherwise ordered by the court.

(d) In the event the government believes that a disclosure under this rule would compromise witness safety, victim rights, national security, a sensitive law-enforcement technique, or any other substantial government interest, it may motion the court for a modification of the requirements of this rule, which may include in camera review and/or withholding or subjecting to a protective order all or part of the information.

(e) For purposes of this rule, the government includes federal, state, and local law-enforcement officers and other government officials who have participated in the investigation and prosecution of the offense(s) with which the defendant is charged. The government has an obligation to seek from these sources all information subject to disclosure under this rule.

(f) Unless the presiding judge orders earlier disclosure, the government must disclose all information identified in (b)(1)-(2), (4)-(6) in its possession in a timely manner. On the defendant's request the government must provide all discovery required by:

(1) Fed. R. Crim. P. 16(a)(1)(A)-(E) and (G) no later than 14 days after arraignment and

(2) Fed. R. Crim. P. 16(a)(1)(F) as soon as reasonably possible and no later than seven days before trial.

(g) If the government fails to comply with this rule, the court, in addition to ordering production of the information, may:

(1) specify the terms and conditions of such production;

(2) grant a continuance;

(3) impose evidentiary sanctions; or

(4) enter any other order that is just under the circumstances.

(h) The government's obligation to disclose exculpatory information extends to information covered under Fed. R. Crim. P. 16(a)(2). Exculpatory information need not be admissible so long as it is reasonably likely to lead to the discovery of admissible evidence.

(i) Questions as to whether information in the possession of the prosecution is exculpatory should be resolved in favor of the defendant. The government may voluntarily submit information to the court for in camera inspection to determine whether it constitutes exculpatory information that must be produced. Upon submitting such information, the government shall file in the record a written notice of submission describing in general terms that information being submitted for inspection.