by other evidence and may or may not be controverted or significant.
It cannot be predicted at this time that the co-defendant's statement a) will be offered, b) will be admitted as evidence, and c) will be prejudicial to the movant. The prosecution proceeds at its peril if it expects all three of these factors to become operational. Should I find at trial that the statement if admitted would be prejudicial to the movant, the prosecution can expect me to exclude the evidence at that time.
Rule 16(a)(1)(C) of the Federal Rules of Criminal Procedure requires that the prosecution permit defendants to inspect "papers, documents . . . or copies thereof . . . within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense . . ."
The Advisory Committee Notes to the 1966 amendment to Rule 16 referring to the former subdivision (b)(1) which is the counterpart of the current (a)(1)(C) states that "specific designation is not required of the defendant [but] the burden is placed on [the defense] to make a showing of materiality to the preparation of [the] defense and that [the] request is reasonable. The requirement of reasonableness will permit the court to define and limit the scope of the government's obligation to search its files while meeting the legitimate needs of the defendant."
This statement emphasizes the broad scope of discovery, while limiting the burden on the prosecution to "search its files" where this might be an open-ended task with no workable outside definition of where it would be reasonable to stop.
A narrow view of Rule 16(a)(1)(C) is inappropriate; failure to provide reasonably available material that might be helpful to the defense and which does not pose any risks to witnesses or to ongoing investigation is contrary to requirements of due process and to the purposes of the Confrontation Clause. If an expert is testifying based in part on undisclosed sources of information, cross-examination vouchsafed by that Clause would be unduly restricted.
Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1967) in focused upon evidence which is exculpatory and which may alter the result; such evidence must be provided to the defense even without request.
Appellate consideration of the adequacy of discovery to the defense in criminal cases is almost always presented in the context of defense efforts to reverse or vacate conviction after trial. This is the necessary result of the inability of the prosecution to appeal from an acquittal, whereas defendants may appeal from convictions and allege shortfalls in discovery as part of their appeals. In considering such appeals, courts are properly reluctant to overturn basically fair trials because of absence of complete discovery where the shortfalls may have been harmless error. See generally Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991); Yates v. Evatt, 111 S. Ct. 1884, 114 L. Ed. 2d 432 (1991); Clemons v. Mississippi, 494 U.S. 738, 108 L. Ed. 2d 725, 110 S. Ct. 1441 (1990); United States v. Mechanik, 475 U.S. 66, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986); Delaware v. Van Arsdall, 475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986); Kotteakos v. United States, 328 U.S. 750, 775, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946). Similarly, district courts when granting discovery rarely find it necessary to explain their rulings, which are not subject to review except through rarely-sought petitions for mandamus. Consequently, the full desirability of extending liberal discovery to defendants where the prosecution is not prejudiced, while reflected in day-today practice, is rarely emphasized in published rulings.
Materials relevant to opposing expert testimony involving analysis of evidence fall clearly and squarely within Fed.R.Civ.P. 16(a)(1)(C) if readily available. Worksheets and other data developed by or used by experts do not constitute opinions of prosecutors or agents concerning investigative leads exempt from pretrial disclosure under Fed.R.Cr.P. 16(a)(2). They are, instead, covered by 18 USC 3500 once the witness testifies.
The United States Attorney's objection to furnishing all materials created or utilized by the FBI experts who reported on or may testify concerning the identification of the movant's Reeboks also ignores Fed.R.Evid. 705, which indicates that experts may be required to disclose "underlying facts or data" on cross-examination; delaying disclosure until that time would merely prolong the trial.
Inability of a defendant to learn before trial the full basis for an adverse expert opinion would run counter to Fed.R.Cr.P. 2 which provides that the Criminal Rules "shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay."
Fed.R.Civ.P. 26(b)(4), while not directly controlling, is persuasive. It permits the adversary of the party offering the expert witness to obtain information to be relied upon by the expert. Under that Rule, courts have recognized the "importance of ensuring that adequate discovery of experts takes place prior to the start of trial," Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 48 n 3 (2d Cir 1984); see also Murray International v. New York Telephone Co., 1993 WL 82531, 1993 U.S. Dist. LEXIS 4921 (SDNY 1993); Committee on Product Liability, "Discovery of Expert Witnesses Under Federal Rule 26," 44 Record of The Ass'n of the Bar of the City of N.Y. No. 5 at 423 (June 1989).
The United States Attorney has suggested no governmental privilege, or any harm to ongoing investigations, which would militate against the disclosure of material prepared or utilized in connection with analysis of the footprints and sneakers involved in this case. See Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957); In re United States, 565 F.2d 19 (2d Cir 1977), cert. denied 444 U.S. 903 (1979); see also United States v. Fernandez, 506 F.2d 1200 (2d Cir 1974).
As stated in United States v. Kattar, 840 F.2d 118, 127 (1st Cir 1988), a "criminal trial should be viewed not as an adversarial sporting contest, but as a quest for truth." Thus the investigative machinery of the government should be available to seek the truth, not merely to convict, inasmuch as an erroneous conviction would not serve the purposes of law enforcement. This should ordinarily be done voluntarily without the need for motion practice unless some harm to the government would be caused by the disclosure - and none has been suggested here. The result of full disclosure of information which may be relevant, where the disclosure offends no privilege, is more reliable factfinding, which benefits the prosecution and the public as well as the defense. See generally J. & B. Frank, Courts on Trial (1963); Cahn, "Fact Skepticism: An Unexpected Chapter," 38 NYU L Rev 1025 (1963).
Dated: White Plains, New York
October 18, 1993
VINCENT L. BRODERICK, U.S.D.J.