Rule 16 Discovery and Inspection
IV. Arraignment and Pretrial
Rule Text
(a) Disclosure of Evidence by the State.
(1) Information Subject to Disclosure.
(A) Defendant’s Oral Statement. Upon a defendant’s request, the state shall disclose to the defendant the substance of any of the defendant’s oral statements made before or after arrest in response to interrogation by any person the defendant knew was a law-enforcement officer if the state intends to offer the statement in evidence at the trial;
(B) Defendant’s Written or Recorded Statement. Upon a defendant’s request, the state shall disclose to the defendant, and make available for inspection, copying, or photographing, all of the following:
(i) the defendant’s relevant written or recorded statements, or copies thereof, if:
(I) the statement is within the state’s possession, custody, or control; and
(II) the district attorney general knows–or through due diligence could know–that the statement exists; and
(ii) the defendant’s recorded grand jury testimony which relates to the offense charged.
(C) Organizational Defendant. Upon a defendant’s motion, if the defendant is a corporation, limited liability company, limited liability partnership, partnership, association, or labor union, the court may grant the defendant discovery of relevant recorded testimony of any witness before a grand jury who was:
(i) at the time of the testimony, so situated as an officer or employee as to have been able legally to bind the defendant regarding conduct constituting the offense; or
(ii) at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been able legally to bind the defendant regarding that alleged conduct in which the witness was involved.
(D) Codefendants. Upon a defendant’s request, when the state decides to place codefendants on trial jointly, the state shall promptly furnish each defendant who has moved for discovery under this subdivision with all information discoverable under Rule 16(a)(1)(A), (B), and (C) as to each codefendant.
(E) Defendant's Prior Record. Upon a defendant’s request, the state shall furnish the defendant with a copy of the defendant's prior criminal record, if any, that is within the state’s possession, custody, or control if the district attorney general knows–or through due diligence could know–that the record exists.
(F) Documents and Objects. Upon a defendant’s request, the state shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, if the item is within the state’s possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial; or
(iii) the item was obtained from or belongs to the defendant.
(G) Reports of Examinations and Tests. Upon a defendant’s request, the state shall permit the defendant to inspect and copy or photograph the results or reports of physical or mental examinations, and of scientific tests or experiments if:
(i) the item is within the state’s possession, custody, or control;
(ii) the district attorney general knows–or through due diligence could know–that the item exists; and
(iii) the item is material to preparing the defense or the state intends to use the item in its case-in-chief at trial.
(2) Information Not Subject to Disclosure. Except as provided in paragraphs (A), (B), (E), and (G) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case. Nor does this rule authorize discovery of statements made by state witnesses or prospective state witnesses.
(3) Grand Jury Transcripts. This rule does not apply to the discovery or inspection of a grand jury’s recorded proceedings, except as provided in Rule 6 and Rule 16(a)(1)(A), (B), and (C).
(4) Failure to Call Witness. The fact that a witness's name is furnished under this rule is not grounds for comment on a failure to call the witness.
(b) Disclosure of Evidence by the Defendant.
(1) Information Subject to Disclosure.
(A) Documents and Tangible Objects. If a defendant requests disclosure under subdivision (a)(1)(F) or (G) of this rule and the state complies, then the defendant shall permit the state, on request, to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions of these items if:
(i) the item is within the defendant’s possession, custody, or control; and
(ii) the defendant intends to introduce the item as evidence in the defendant’s case-in-chief at trial.
(B) Reports of Examinations and Tests. If the defendant requests disclosure under subdivision (a)(1)(F) or (G) of this rule and the state complies, the defendant shall permit the state, on request, to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, if:
(i) the item is within the defendant’s possession, custody, or control; and
(ii) the defendant intends to introduce the item as evidence in the defendant’s case-in-chief at trial; or
(iii) the defendant intends to call as a witness at trial the person who prepared the report, and the results or reports relate to the witness's testimony.
(2) Information Not Subject to Disclosure. Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of:
(A) reports, memoranda, or other internal defense documents made by the defendant or the defendant's attorneys or agents in connection with the investigation or defense of the case; or
(B) a statement made by the defendant to the defendant’s agents or attorneys or statements by actual or prospective state or defense witnesses made to the defendant or the defendant’s agents or attorneys.
(3) Failure to Call Witness. The fact that a witness's name is on a list furnished under this rule is not grounds for comment on a failure to call the witness.
(c) Continuing Duty to Disclose. A party who discovers additional evidence or material before or during trial shall promptly disclose its existence to the other party, the other party’s attorney, or the court if:
(1) the evidence is subject to discovery or inspection under this rule, and
(2) the other party previously requested, or the court ordered, its production.
(d) Regulating Discovery.
(1) Protective and Modifying Orders. At any time, for good cause shown, the court may deny, restrict, or defer discovery or inspection, or grant other appropriate relief. On a party’s motion, the court may permit the party to make such showing, in whole or in part, by written statement that the court will inspect ex parte. If relief is granted following an ex parte submission, the court shall preserve under seal in the court records the entire text of the party’s written statement.
(2) Failure to Comply with a Request. If a party fails to comply with this rule, the court may:
(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms or conditions;
(B) grant a continuance;
(C) prohibit the party from introducing the undisclosed evidence; or
(D) enter such other order as it deems just under the circumstances.
(e) Alibi Witnesses. Discovery of alibi witnesses is governed by Rule 12.1.
(3) Procedure in Child Pornography Cases. In any criminal history proceeding relating to the sexual exploitation of minors under title 39, chapter 17, part 10 that involves documents or objects discoverable pursuant to Rule 16(a)(1)(F), the court shall, on motion of the state:
(A) Deny any request by the defendant to copy or photograph any documents or
objects depicting sexual exploitation of minors under title 39, chapter 17, part 10,
so long as the state shows that the documents or objects will be made reasonably
available to the defendant throughout the proceeding.
(B) For the purposes of subdivision(d)(3)(A), documents or objects shall be
deemed to be reasonably available to the defendant if the state provides ample
opportunity for inspection, viewing, and examination at a state facility of the
documents or objects by the defendant, the defendant's attorney, and any
individual the defendant may seek to qualify to furnish expert testimony at
trial. The Court may, in its discretion, permit other individuals to have access to the
documents or objects if necessary to protect the rights of the defendant.
(C) If the state fails to demonstrate that the documents or objects will be made
reasonably available to the defendant throughout the proceeding, or fails to make
the documents or objects reasonably available to the defendant at any time during
the proceeding, the trial court may order the state to permit the defendant to copy
or photograph any documents or objects subject to terms and conditions set by
the court in an appropriate protective order.
Amendment history: [Amended by order filed January 8, 2018, effective July 1, 2018.]