Rule 16 Discovery and Inspection

(a) Disclosure of evidence by state. —

(1) Information Subject to Disclosure.—

(A) Statement of Defendant.—

(i) Upon written demand of a defendant the state shall permit the defendant to inspect and copy or photograph: 1. Any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the state; 2. The substance of any oral statement which the state intends to offer in evidence at the trial made by the defendant whether before or after arrest; and 3. Recorded testimony of the defendant before a grand jury which relates to the offense charged.

(ii) Where the defendant is a corporation, partnership, association or any other entity, the court may grant the defendant, upon its motion, discovery of relevant recorded testimony of any witness before a grand jury who: 1. Was, at the time of that testimony, so situated as an officer or employee as to have been able legally to bind the defendant in respect to conduct constituting the offense; or 2. Was, 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 in respect to that alleged conduct in which the witness was involved.

(B) Defendant’s Prior Record. — Upon written demand of the defendant, the state shall furnish to the defendant such copy of the defendant’s prior criminal record, if any, as is within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the state.

(C) Documents and Tangible Objects. — Upon written demand of the defendant, 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, which are within the possession, custody or control of the state, and which are material to the preparation of the defendant’s defense or are intended for use by the state as evidence in chief at the trial, or were obtained from or belong to the defendant.

(D) Reports of Examinations and Tests. — Upon written demand of a defendant, the state shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the state, and which are material to the preparation of the defense or are intended for use by the state as evidence in chief at the trial.

(2) Information Not Subject to Disclosure. — Except as provided in subparagraphs (1)(A), (1)(B) and (1)(D), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the attorney for the state or other state agents in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses except as provided in Rule 26.2.

(3) Grand Jury Transcripts. — Except as provided in Rules 6, 12(j) and 26.2, and subdivision (a)(1)(A) of this rule, these rules do not relate to discovery or inspection of recorded proceedings of a grand jury.

(b) Disclosure of evidence by defendant. —

(1) Information Subject to Disclosure.

(A) Documents and Tangible Objects. — If the defendant demands disclosure under subdivision (a)(1)(C) or (a)(1)(D), upon compliance with such demand by the state, the defendant, on demand of the state, shall permit the state to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, which the defendant intends to introduce as evidence in chief at the trial and which are within the possession, custody, or control of the defendant or which the defendant can reasonably obtain.

(B) Reports of Examinations and Tests. — If the defendant demands disclosure under subdivision (a)(1)(C) or (a)(1)(D), upon compliance with such demand by the state, the defendant, on demand of the state, shall permit the state 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, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to that 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 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 of statements made by the defendant, or by state or defense witnesses, or by prospective state or defense witnesses, to the defendant, the defendant’s agents or attorneys.

(c) Continuing duty to disclose. — If, prior to or during trial, a party discovers additional evidence or material previously demanded or ordered, which is subject to discovery or inspection under this rule, such party shall promptly notify the other party or that other party’s attorney or the court of the existence of the additional evidence or material.

(d) Regulation by court. —

(1) Protective and Modifying Orders. — Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party’s statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

(2) Failure to Comply. — If at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.

(e) Alibi witnesses. — Discovery of alibi witnesses is governed by Rule 12.1. Compare. — Rule 16, Fed. Rules Cr. Proc. I. GENERAL CONSIDERATION Without discovery order, prosecutor without general obligation to permit discovery. — The defendant’s claim of prosecutorial misconduct relating to discovery of the jurors’ arrest records was without foundation because an order was never entered providing for discovery. Without such an order, the prosecutor had no general obligation to permit discovery and could not have abused a nonexistent obligation. Moreover, the defendant received the records in time for use during voir dire, and without a showing of prejudice, what occurred was harmless. Capshaw v. State, 714 P.2d 349, 1986 Wyo. LEXIS 496 (Wyo. 1986). Where breach of order is claimed, burden is upon defendant to specify the evidence that might have been available to him to rebut the undisclosed information if more time had been available. Lindsey v. State, 725 P.2d 649, 1986 Wyo. LEXIS 611 (Wyo. 1986). Abuse of discretion with respect to materials as to which discovery may be required. — See Nimmo v. State, 607 P.2d 344, 1980 Wyo. LEXIS 243 (Wyo. 1980). Grand jury testimony need not be recorded in the absence of a procedural rule or statute which requires recording, and the failure to do so does not violate due process. This rule, which permits the inspection and copying of the transcript of grand jury testimony of the defendant or the testimony of a witness after he has testified, if the testimony was recorded, satisfies any due process requirements. Hennigan v. State, 746 P.2d 360, 1987 Wyo. LEXIS 536 (Wyo. 1987). Demand for mistrial instead of relief under subdivision (c) not permitted. — It is impermissible to bypass the relief afforded under subdivision (c) of asking for inspection of materials not previously disclosed and for the granting of a continuance but instead to demand a mistrial. Simms v. State, 492 P.2d 516, 1972 Wyo. LEXIS 213 (Wyo.), cert. denied, 409 U.S. 886, 93 S. Ct. 104, 34 L. Ed. 2d 142, 1972 U.S. LEXIS 1757 (U.S. 1972); Nimmo v. State, 607 P.2d 344, 1980 Wyo. LEXIS 243 (Wyo. 1980). Failure to disclose unfiled statement harmless error. — Where no order for discovery and inspection was ever issued by the court because the state agreed to permit free inspection of its police file and to provide the defense with an exhaustive list of proposed and potential witnesses, and allegedly incriminating statements made by the defendant were not in the file and would have been discoverable only upon colloquy with the investigating officer, admission of the statements by the state without prior disclosure to the defendant was, at worst, harmless error. Pearson v. State, 818 P.2d 1144, 1991 Wyo. LEXIS 157 (Wyo. 1991). This rule does not bar a trial court from ordering a defendant to make a pretrial disclosure of witness statements. Kovach v. State, 2013 WY 46, 299 P.3d 97, 2013 Wyo. LEXIS 50 (Wyo. 2013). Statute not to be circumvented by rule. — Defendant could not circumvent the statutory privilege of § 7-13-409 by demanding that the information be given to him pursuant to this rule. Roach v. State, 901 P.2d 1135, 1995 Wyo. LEXIS 159 (Wyo. 1995); Vena v. State, 941 P.2d 33, 1997 Wyo. LEXIS 94 (Wyo. 1997), overruled, Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998).