An Update on a Recent Discovery Post
- The Rule 16 requirement that prosecutors disclose all information “material to preparing the defense” applies to inculpatory evidence as well as exculpatory evidence.
- This disclosure requirement also applies to evidence relevant to affirmative defenses in addition to evidence relevant directly to guilt.
- There’s another recent Ninth Circuit case that confirms these points, as well as some nicely worded language from some D.C. cases.
NOW THE BLOG:
I attended a CLE in Seattle last month that included a presentation on discovery standards by former Seattle AFPD – and now private defense attorney extraordinaire – Peter Offenbecher. It brought to my attention some additional authority for suggestions I made in a recent post on the Rule 16 requirement that prosecutors disclose all information “material to preparing the defense” (see “They Don’t Seem to Know Their Rule 16 Obligations Either” in the link at the right). I thought I’d share it with you to add to your quiver of arrows.
First, there’s an additional Ninth Circuit case to back up theHernandez-Meza case (United States v. Hernandez-Meza, 720 F.3d 760 (9th Cir. 2013)) that I discussed in the prior post on the Rule 16 materiality standard. The case is United States v. Muniz-Jaquez, 718 F.3d 1180 (9th Cir. 2013). The court there, like the court in Hernandez-Meza, recognized that the materiality standard is a broad one that apples to inculpatory evidence as well as exculpatory evidence and that it applies to evidence relevant to potential defenses as well as evidence relevant directly to guilt of the charged offenses. On the first point, the court said:
Rule 16 “grants criminal defendants a broad right to discovery,” id., requiring disclosure of all documents “material to preparing the defense,” Fed. R. Crim. P. 16(a)(1)(E)(i). Rule 16 is thus broader than Brady. Information that is not exculpatory or impeaching may still be relevant to developing a possible defense. See United States v. Doe, 705 F.3d 1134, 1151 (9th Cir. 2013) (“Even if the documents [requested under Rule 16] caused [defendant] to completely abandon [his] entrapment defense and take an entirely different path, the documents would still have been ‘material to preparing the defense’ under Rule 16(a)(1)(E)(i).”) Even inculpatory evidence may be relevant. A defendant who knows that the government has evidence that renders his planned defense useless can alter his trial strategy. Or he can seek a plea agreement instead of going to trial.
Muniz-Jaquez, 718 F.3d at 1183. Then, on the second point – about evidence relevant to defenses as well as more direct evidence – the court added that the materiality standard also “permits discovery that is ‘relevant to the development of a possible defense.’” Muniz-Jaquez, 718 F.3d at 1183-84 (quotingUnited States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)).
There’s also a district court opinion from the District of Columbia (again, credit to Peter Offenbecher for pointing it out) with some great, strong language, both of its own and taken from other D.C. opinions. Here’s that language – from United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005):
[T]he government cannot take a narrow reading of the term “material” in making its decisions on what to disclose under Rule 16. Nor may it put itself in the shoes of defense counsel in attempting to predict the nature of what the defense may be or what may be material to its preparation.
As Judge Sentelle said for the D.C. Circuit in United States v. Marshall, 132 F.3d [63,] 67 [(D.C. Cir. 1998)], Rule 16(a)(1)(E) . . . covers evidence that is “material ‘to the preparation of the defense’” (emphasis in original). It is not limited to evidence that is favorable or helpful to the defense and does not immunize inculpatory evidence from disclosure. See id. “Inculpatory evidence, after all, is just as likely to assist in ‘the preparation of the defendant’s defense’ as exculpatory evidence. . . . [I]t is just as important to the preparation of a defense to know its potential pitfalls as to know its strengths.” Id. (footnote omitted.) Rule 16 is intended to provide a criminal defendant “the widest possible opportunity to inspect and receive such materials in the possession of the Government as may aid him in presenting his side of the case.” United States v. Poindexter, 727 F. Supp. 1470, 1473 (D.D.C. 1989). See also United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) (materiality standard “is not a heavy burden”; evidence is material if there is indication that it may play “an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.”); United States v. George, 786 F. Supp. 11, 13 (D.D.C. 1991) (the materiality hurdle “is not a high one”).
Safavian, 233 F.R.D. at 15.
So there’s some more good language to work with. Keep reminding the prosecutors of what the cases say about their obligations, not what they want to think their obligations are.