Rule 16. Discovery and Inspection

(a) Government’s Disclosure.

1. Information Subject to Disclosure.

   • (A) Defendant’s Oral Statement . Upon a defendant’s request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial.

   • (B) Defendant’s Written or Recorded Statement . Upon a defendant’s request, the government must disclose to the defendant, and make available for inspection, copying, or photographing, all of the following:

     • (i) any relevant written or recorded statement by the defendant if:

• statement is within the government’s possession, custody, or control; and

• the attorney for the government knows—or through due diligence could know—that the statement exists;

• (ii) the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent; and

• (iii) the defendant’s recorded testimony before a grand jury relating to the charged offense.

  • (C) Organizational Defendant . Upon a defendant’s request, if the defendant is an organization, the government must disclose to the defendant any statement described in Rule 16(a)(1)(A) and (B) if the government contends that the person making the statement:

    • (i) was legally able to bind the defendant regarding the subject of the statement because of that person’s position as the defendant’s director, officer, employee, or agent; or

    • (ii) was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person’s position as the defendant’s director, officer, employee, or agent.

  • (D) Defendant’s Prior Record . Upon a defendant’s request, the government must furnish the defendant with a copy of the defendant’s prior criminal record that is within the government’s possession, custody, or control if the attorney for the government knows—or through due diligence could know—that the record exists.

  • (E) Documents and Objects . Upon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government’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.

  • (F) Reports of Examinations and Tests . Upon a defendant’s request, the government must permit a defendant to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if:

    • (i) the item is within the government’s possession, custody, or control;

    • (ii) the attorney for the government knows—or through due diligence could know—that the item exists; and

    • (iii) the item is material to preparing the defense or the government intends to use the item in its case-in-chief at trial.

  • (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 the second bullet point in (b)(1)(C)(i) 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 at trial under Federal Rules of Evidence 702, 703, or 705 on the issue of the defendant’s mental condition.

    • (ii) Time to Disclose. The court, by order or local rule, must set a time for the government to make its disclosures. 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 for each expert witness 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 to 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 a Disclosure. The government must supplement or correct its disclosures in accordance with (c).

1. Information Not Subject to Disclosure . Except as permitted by Rule 16(a)(1)(A)-(D), (F), and (G), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. §3500 .

2. Grand Jury Transcripts . This rule does not apply to the discovery or inspection of a grand jury’s recorded proceedings, except as provided in Rules 6 , 12(h) , 16(a)(1) , and 26.2 .

(b) Defendant’s Disclosure.

1. Information Subject to Disclosure.

   • (A) Documents and Objects . If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items if:

     • (i) the item is within the defendant’s possession, custody, or control; and

     • (ii) the defendant intends to use the item in the defendant’s case-in-chief at trial.

   • (B) Reports of Examinations and Tests . If a defendant requests disclosure under Rule Rule 16(a)(1)(F) and the government complies, the defendant must permit the government, upon request, to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if:

     • (i) the item is within the defendant’s possession, custody, or control; and

     • (ii) the defendant intends to use the item in the defendant’s case-in-chief at trial, or intends to call the witness who prepared the report and the report relates to the witness’s testimony.

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

• (ii) Time to Disclose. The court, by order or local rule, must set a time for the defendant to make the defendant’s disclosures. 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 for each expert witness 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 (B) a report, signed by the witness, that contains all the opinions and the bases and reasons for them required by (iii).

• (iv) Supplementing and Correcting a Disclosure. The defendant must supplement or correct the defendant’s disclosures in accordance with (c).

1. Information Not Subject to Disclosure . Except for scientific or medical reports, Rule 16(b)(1) does not authorize discovery or inspection of:

   • (A) reports, memoranda, or other documents made by the defendant, or the defendant’s attorney or agent, during the case’s investigation or defense; or

   • (B) a statement made to the defendant, or the defendant’s attorney or agent, by:

     • (i) the defendant;

     • (ii) a government or defense witness; or

     • (iii) a prospective government or defense witness.

(c) Continuing Duty to Disclose. A party who discovers additional evidence or material before or during trial must promptly disclose its existence to the other party or the court if:

1. the evidence or material 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 the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party’s statement under seal.

2. Failure to Comply . 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 and conditions;

   • (B) grant a continuance;

   • (C) prohibit that party from introducing the undisclosed evidence; or

   • (D) enter any other order that is just under the circumstances.

Notes