Local Rule 26.2: Discovery in Criminal Cases

Rule 26.2 Discovery in Criminal Cases

(A) Policy. It is the District's policy to rely on the standard discovery procedure as set forth in this rule as the sole means for the exchange of discovery in criminal cases except in extraordinary circumstances. This rule is intended to promote the efficient exchange of discovery without altering the rights and obligations of the parties, but at the same time eliminating the practice of routinely filing voluminous and duplicative discovery motions. Best practices consistent with this rule may be addressed by administrative order.

(B) Discovery Upon Defendant's Request. At the earliest opportunity and no later than 7 days after arraignment, the defendant's attorney shall contact the government's attorney and make a good faith attempt to have all properly discoverable material and information promptly disclosed or provided for inspection or copying. In addition, upon request of the defendant, the government shall specifically provide the following within 7 days after the request:

(1) Defendant's Statements Under Fed. R. Crim. P. 16(a)(1)(A)(B), and (C). Any written or recorded statements made by the defendant; the substance of any oral statement made by the defendant before or after the defendant's arrest in response to interrogation by a then known-to-be government agent which the government intends to offer in evidence at trial; and any recorded grand jury testimony of the defendant relating to the offenses charged.

(2) Defendant's Prior Record Under Fed. R. Crim. P. 16(a)(1)(D). The defendant's complete arrest and conviction record, as known to the government.

(3) Documents and Tangible Objects Under Fed. R. Crim. P. 16(a)(1)(E). Books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which the government intends to use as evidence-in-chief at trial, which are material to the preparation of the defendant's defense, or which were obtained from or belong to the defendant.

(4) Reports of Examinations and Tests Under Fed. R. Crim. P. 16(a)(1)(F). Results or reports of physical or mental examinations and of scientific tests or experiments, or copies thereof, which are material to the preparation of the defendant's defense or are intended for use by the government as evidence-in-chief at trial.

(5) Expert Witnesses Under Fed. R. Crim. P. 16(a)(1)(G). A written summary of testimony the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(C) Defendant's Discovery Obligations. If the defendant requests disclosure under subdivisions (a)(1)(C), (D), or (E) of Fed. R. Crim. P. 16, or if the defendant has given notice under Fed. R. Crim. P. 12.2 of an intent to present expert testimony on the defendant's mental condition, the government shall make its requests as allowed by Fed. R. Crim. P. 16 within 3 days after compliance with the defendant's request or after receipt of defendant's notice of intent to present expert testimony on the defendant's mental condition pursuant to Fed. R. Crim. P. 12.2, and the defendant shall provide, by the deadline set out below, the following:

(1) Documents and Tangible Objects Under Fed. R. Crim. P. 16(b)(1)(A). Within 7 days after government's request, books, papers, documents, photographs, tangible objects, or copies or portions thereof, which the defendant intends to introduce as evidence-in-chief at trial.

(2) Reports of Examinations and Tests Under Fed. R. Crim. P. 16(b)(1)(B). At least 30 days before the trial, results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, 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 trial and which relate to that witness's testimony.

(3) Expert Witnesses Under Fed. R. Crim. P. 16(b)(1)(C). Within 14 days after the government's request, a written summary of testimony the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(D) Other Disclosure Obligations of the Government. The government's attorney shall provide the following within 7 days after the defendant's arraignment, or promptly after acquiring knowledge thereof:

(1) Brady Material. All information and material known to the government which may be favorable to the defendant on the issues of guilt or punishment, without regard to materiality, that is within the scope of Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Agurs, 427 U.S. 97 (1976).

(2) Giglio Material. The existence and substance of any payments, promises of immunity, leniency, preferential treatment, or other inducements made to prospective witnesses, within the scope of United States v. Giglio, 405 U.S. 150 (1972) and Napus v. Illinois, 360 U.S. 264 (1959).

(3) Testifying Informant's Convictions. A record of prior convictions of any alleged informant who will testify for the government at trial.

(4) Defendant's Identification. If a lineup, showup, photo spread or similar procedure was used in attempting to identify the defendant, the exact procedure and participants shall be described and the results, together with any pictures and photographs, shall be disclosed.

(5) Inspection of Vehicles, Vessels, or Aircraft. If any vehicle, vessel, or aircraft was allegedly utilized in the commission of any offenses charged, the government shall permit the defendant's counsel and any experts selected by the defense to inspect it, if it is in the custody of any governmental authority.

(6) Defendant's Latent Prints. If latent fingerprints, or prints of any type, have been identified by a government expert as those of the defendant, copies thereof shall be provided.

(E) Obligations of the Government.

(1) The government shall advise all government agents and officers involved in the case to preserve all rough notes and electronically stored information.

(2) The government shall advise the defendant of its intention to introduce evidence at trial, pursuant to Rule 404(b), Federal Rules of Evidence.

(3) If the defendant was an "aggrieved person" as defined in 18 U.S.C. § 2510(11), the government shall so advise the defendant and set forth the detailed circumstances thereof.

(4) The government shall anticipate the need for, and arrange for the transcription of, the grand jury testimony of all witnesses who will testify in the government's case-in-chief, if subject to Fed. R. Crim. P. 26.2 and to 18 U.S.C. § 3500. Jencks Act materials and witnesses' statements shall be provided as required by Fed. R. Crim. P. 26.2 and § 3500. However, the government, and where applicable, the defendant, is requested to make such materials and statements available to the other party sufficiently in advance so as to avoid any delays or interruptions at trial.

(F) Obligations of the Defendant.

(1) Insanity. If a defendant intends to rely upon the defense of insanity at the time of the alleged crime, or intends to introduce expert testimony relating to a mental disease, defect, or other mental condition bearing upon the issue of guilt, or, in a capital case, punishment, the defendant shall give written notice thereof to the government within 14 days after arraignment.

(2) Alibi. If the attorney for the government makes demand for notice of defendant's intent to offer a defense of an alibi, the defendant shall respond within 14 days after the demand.

(3) Entrapment. If the defendant intends to rely upon the defense of entrapment, such intention shall be disclosed by written notice to the government's attorney at least 14 days before the trial. See United States v. Webster, 649 F.2d 346 (5th Cir. 1981).

(G) Joint Obligations of Attorneys.

(1) Conference and Joint Report. The attorneys for the government and the defendant shall confer at least 7 days prior to the scheduled date for jury selection and shall discuss all discovery requested and provided. They shall also make every possible effort in good faith to stipulate to facts, to points of law, and to the authenticity of exhibits (particularly regarding those exhibits for which records custodian witnesses may be avoided). A joint written statement, signed by the attorney for each defendant and the government, shall be prepared and filed prior to commencement of trial. It shall generally describe all discovery material exchanged and shall set forth all stipulations. No stipulation made shall be used against a defendant unless the stipulation is in writing and signed by both the defendant and the defendant's attorney.

(2) Newly Discovered Evidence. It shall be the duty of counsel for both sides to immediately reveal to opposing counsel all newly discovered information, evidence, or other material within the scope of this rule, and there is a continuing duty upon each attorney to disclose by the speediest means available.

(3) Discovery Motions Prohibited. No attorney shall file a discovery motion without first conferring with opposing counsel, and no motion will be considered by the Court unless it is accompanied by a certification of such conference and a statement of the moving party's good faith efforts to resolve the subject matter of the motion by agreement with opposing counsel. No discovery motions should be filed for information or material within the scope of this rule.

(4) Filing of Requests. Discovery requests made pursuant to Fed. R. Crim. P. 16 and this local rule require no action on the part of the Court and should not be filed with the Clerk, unless needed for consideration of a motion or to preserve an issue for appeal.

(5) Protected Material. When the government believes that public disclosure of Giglio material or testifying-informant convictions poses a danger to a witness, it may provide this information in an envelope separate from other discovery material and marked "Giglio material/informant convictions—DISTRIBUTION OUTSIDE THE DEFENSE TEAM IS PROHIBITED." Information designated in this manner shall not be distributed by the attorney for the defendant, except to those working on the attorney's behalf. While it is information that is necessarily shared with the defendant, copies of this information shall not be provided to the defendant.