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Increased Applications of Rule 26.2 Reciprocal Discovery Pose Added Trial Headaches; Defense Counsel: Beware

Increased Applications of Rule 26.2 Reciprocal Discovery Pose Added Trial Headaches; Defense Counsel: Beware

Defense counsel is not required to hand over potentially damaging evidence to the Government unless they intend on using it at trial. The constitutional right against self-incrimination typically allows the defendant to withhold such evidence. As discussed more fully infra, however, that is not always the case.

Over the past few months, the United States Department of Justice (“DOJ”) has steadily increased its efforts to obtain reciprocal discovery – including information that would be damaging or inculpatory to defendants – through the use of aggressive requests under Rule 26.2. Many experts speculate that the proliferation of such requests is a direct response to recent dismissals of white-collar prosecutions due to the Government’s failure to comply with its own discovery obligations.

The genesis of Rule 26.2 can be traced back to the 1957 United States Supreme Court Decision in Jencks v. United States, 353 U.S. 657 (1957), which gave defendants the right to obtain copies of witness statements that were generated by law enforcement and/or the prosecutor’s office. Almost twenty (20) years later, the Supreme Court formalized the principle of reciprocal discovery by requiring the defendant to give the prosecution copies of pretrial statements obtained by the defense – often referred to as “reverse Jencks materials.” See United States v. Nobles, 422 U.S. 225 (1975). In so holding, the Supreme Court emphasized that the right of the prosecution to obtain defense pretrial statements would “substantially enhance ‘the search for truth.’” Id. at 232, citing Williams v. Florida, 399 U.S. 78, 82 (1970).

Although aspirational, the Supreme Court’s rationale fails to account for the substantial prejudice that such a requirement can have on the defendant’s ability to prepare an effective defense or their right to a fair trial. Providing witness statements and other discovery materials would conceivably give the Government insight into the defense strategy. Likewise, these reciprocal discovery obligations could place the defendant in the untenable position of having to disclose information that might be harmful to the defense’s theory of the case.

Be on the lookout for:

  1. Disclosing Government Discovery Back to the Government
    1. A court could interpret Rule 26.2 as requiring the defense to identify a list of witness statements that the defense will use in its case-in-chief, even if those documents are already in the Government's possession.
  2. A Government Witness Unexpectedly Becoming a Witness of the Defense
    1. The Government may remove a witness from its list shortly before or during the actual trial, thereby rendering the defense with the option of calling the witness during its case-in-chief, or forgoing questioning of that witness entirely.
    2. The defense may use an ex parte Rule 17(c) subpoena to obtain emails or other communications by Government witnesses that the Government did not gather during its investigation. That material could result in a decision to call a Government witness in the defense case.
  3. Judges Who Ignore Timing Requirements
    1. Arguably creates the most danger to defense counsel
      1. A judge who ignores the timing of disclosures under Rule 26.2 and conflates the Government's Jencks obligations with the defense's reciprocal discovery obligations under Rule 26.2.
    2. Losing the Element of Surprise
      1. Defense counsel will often rely on the element of surprise to win the case by introducing emails or other documents that the Government failed to obtain during its investigation. If a court ignores 26.2’s timing (requiring the defense to make pretrial disclosures), the Government will have the opportunity to modify their theory or the manner in which they present their case in light of the reciprocal discovery materials.

If you're involved in a criminal case, having a knowledgeable and aggressive attorney on your side from the start is imperative. The Attorneys at Friedman Nemecek Long & Grant, L.L.C., L.L.C., have the experience and resources to effectively handle any client matter. Our Ohio criminal defense attorneys not only have an in-depth understanding of the law, but we also continually educate ourselves on changes in the justice system. Respected leaders in the legal community, we have been sought out by other attorneys as well as judges for advice, guidance, and insight. Regardless of how complex your issue may seem, we have the knowledge and skills to navigate it.