The proposed changes to FRCrimP 16 and their impact

A few weeks ago the Advisory Committee on the Criminal Rules prepared proposed changes to Federal Rule of Criminal Procedure 16, which deals with discovery. These proposed rule changes are going to have substantial effects on criminal discovery, especially as it relates to expert testimony and what an accused person is required to turn over.

What is the Committee on Rules of Practice and Procedure

The Committee On Rules of Practice and Procedure of the Judicial Conference of the United States has prepared initial amendments to their rules of procedure. There are actually several different groups preparing changes to their rules of procedure: there are proposed changes to Appellate Rules, Bankruptcy Rules, Civil procedure rules and Criminal Procedure Rules. The changes to the Bankruptcy, Appellate and Civil Procedure Rules do not, as far as I can see, affect criminal cases. This newsletter will only cover the impact on the rules of criminal procedure.

How did these people get in charge of this?

The Supreme Court is authorized to prescribe general rules of practice and procedure and rules of evidence for the federal courts. There is also a thing called a “Judicial Conference.” That, according to information about the Judicial Conference, is the national policy-making body for the federal courts. The judicial conference puts together a standing committee “to publish the procedures that govern the work of the Committee on Rules of Practice and Procedure.” The judicial conference also puts together advisory committees on the rules of appellate, bankruptcy, civil and criminal procedure as well as the Evidence Rules. If any of that interests you any further you can go to the Rules Enabling Act, 28 U.S.C. §§ 2071–2077 and read more about it.

What did this Committee Decide?

The Current Rules Look like this:

"(G) Expert Witnesses. At the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies, the government must, at the defendant's request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant's mental condition. The summary provided under this subparagraph must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications."

Federal rule of criminal procedure 16(a)(1)(G)

"(C) Expert Witnesses. The defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if—

(i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or

(ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant's mental condition.

This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications[.]"

Federal rule of criminal Procedure 16(b)(1)(c)

The committee proposed changes to Federal Rule of Criminal Procedure 16. If approved, it will read like this:

(G) Expert witnesses.
(i) Duty to Disclose. At the defendant’s request, the government must disclose to the defendant, in writing, the information required by (iii) for any testimony that the government intends to use at trial under Federal Rules of Evidence 702, 703, or 705 during its case-in-chief, or during its rebuttal to counter testimony that the defendant has timely disclosed under (b)(1)(C). If the government requests discovery under (b)(1)(C)(ii) and the defendant complies, the government must, at the defendant’s request, disclose to the defendant, in writing, the information required by (iii) for testimony that the government intends to use under Federal Rules of Evidence 702, 703, or 705 as evidence at trial on the issue of the defendant’s mental condition.

(ii) Time to Provide the Disclosure. The court, by order or local rule, must set a time for the government to make the disclosure. The time must be sufficiently before trial to provide a fair opportunity for the defendant to meet the government’s evidence.

(iii) Contents of the Disclosure. The disclosure must contain:
● a complete statement of all opinions, that the government will elicit from the witness in its case-in-chief, or during its rebuttal counter testimony that the defendant has timely disclosed under (b)(1)(C);
● the bases and reasons for them;
● the witness’s qualifications, including a list of all publications authored in the previous 10 years; and
● a list of all other cases in which, during the previous 4 years, the witness has testified as an expert at trial or by deposition.

(iv) Information Previously Disclosed.
If the government previously provided a report under (F) that contained information required by (iii), that information may be referred to, rather than repeated, in the expert-witness disclosure.

(v) Signing the Disclosure. The witness must approve and sign the disclosure, unless the government:
● states in the disclosure why it could not obtain the witness’s signature through reasonable efforts; or
● has previously provided under (F) a report, signed by the witness, that contains all the opinions and the bases and reasons for them required by (iii).
(vi) Supplementing and Correcting the Disclosure. The government must supplement or correct the disclosure in accordance with (c).

proposed federal rule of criminal procedure 16(a)(1)(g)

(b) Defendant’s Disclosure.
(1) Information Subject to Disclosure

(C) Expert witnesses.
(i) Duty to Disclose. At the government’s request, the defendant must disclose to the government, in writing, the information required by (iii) for any testimony that the defendant intends to use under Federal Rule of Evidence 702, 703, or 705 of during the defendant’s case-in-chief at trial if—
● the defendant requests disclosure under (a)(1)(G) and the government complies; or
● the defendant has been given notice under Rule 12.2(b) of an intent to present expert testimony on the defendants mental condition
(ii) Time to Provide the Disclosure
The court, by order or local rule, must set a time for the defendant to make the disclosure. The time must be sufficiently before trial to provide a fair opportunity for the government to meet the defendant’s evidence.
(iii) Contents of the Disclosure. The disclosure must contain:
● a complete statement of all opinions that the defendant will elicit from the witness in the defendant’s case-in-chief;
● the bases and reasons for them;
● the witness’s qualifications, including a list of all publications authored in the previous 10 years and
● a list of all other cases in which, during the previous 4 years, the witness has testified as an expert at trial or by deposition
(iv) Information Previously Disclosed
If the defendant previously provided a report under (B) that contained information required by (iii), that information may be referred to, rather than repeated, in the expert-witness disclosure.
(v) Signing the disclosure. The witness must approve and sign the disclosure, unless the defendant
● states in the disclosure why the defendant could not obtain the witness’s signature through reasonable efforts; or
● has previously provided under (F) a report, signed by the witness, that contains all the opinions and the bases and reasons for them required by (iii)
(vi) Supplementing and Correcting the Disclosure. The defendant must supplement or correct the disclosure in accordance with (c)

Proposed federal rule of criminal proceduRe 16(b)(1)(c)

Why is the Committee Doing this?

The committee gave excepts from their May 20, 2020 report of the Advisory Committee on Criminal Rules. There are several pages of this: Due to space concerns I’ll give you some of the highlights.

“The proposed amendment addresses two shortcomings of the current provisions on expert witness disclosure: (1) the lack of an enforceable deadline for disclosure; and (2) the lack of adequate specificity regarding what information must be disclosed.”

“Defense practitioners reported they sometimes received expert witness summaries a week or even the night before trial, which significantly impaired their ability to prepare for trial. They also said they do not receive disclosures in sufficient detail to prepare for cross-examination. They recounted several examples of this problem.”

“The proposal distinguishes between the preparation, approval, and signing of expert witness disclosures. Unlike Civil Rule 26(a)(2)(B), the amendment does not require the witness to prepare the disclosure. The Committee concluded that in some circumstances it may be appropriate for the prosecutor or defense counsel to draft the disclosure. Disclosures drafted by counsel must, however, accurately portray the witness’s testimony. Thus, with two exceptions, proposed (a)(1)(G)(v) and (b)(1)(C)(v) require the disclosure to be “approved and signed” by the expert.

What Happens Next?

There will be a comment period on these rules followed by a period to approve them. The hearings will be on November 4, 2020 and January 25, 2021.

At this time, the Committee on Rules of Practice and Procedure has approved these proposed amendments only for publication and comment. The proposed amendments have not been submitted to or considered by the Judicial Conference or the Supreme Court. After the public comment period, the advisory committees will decide whether to submit the proposed amendments to the Committee on Rules of Practice and Procedure for approval in accordance with the Rules Enabling Act, 28 U.S.C. §§ 2072-2077.

Under the Rules Enabling Act, any rules amendments approved, with or without revision, by the relevant advisory committee must then be approved by the Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court. The proposed amendments would become effective on December 1, 2022 absent congressional action.

If I or my loved one are already in prison does this benefit us?

No, these will not be applied retroactively.

About the Law Office Of Jeremy Gordon

The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to reach out to us today to visit with us on how we might be able to help you or your loved one get the representation they deserve. For more information on appeals please click here.  If you can also add us on Facebook or Twitter.