In addition, the prosecutor must provide the defense with evidence that could harm their case, called exculpatory evidence. This evidence could prove the defendant's innocence. If the prosecution fails to provide it to the defense, a new trial may be required. Under the Constitution, the prosecutor is obliged to disclose exculpatory evidence that is in his possession and under his control.
Exculpatory evidence is evidence that proves the guilt or punishment of the accused and that is favorable to him. It can include information that affects the credibility of a witness, for example, if he was offered an agreement with the prosecution based on his testimony. Rule 16 is revised to give both the prosecution and the defense greater capacity for discovery. Subdivision (a) deals with the disclosure of evidence by the government.
Subdivision (b) deals with the disclosure of evidence by the defendant. The majority of the Advisory Committee is of the view that the evidence of the prosecution and of the defense are related and that the granting of a broader right to present evidence to the defense depends on also granting a broader right to present evidence to the prosecution. Therefore, the Committee amended subdivision (a) (E) to require the prosecutor to provide a record of all criminal convictions, not just felony convictions. For example, if a government witness was immunized against being prosecuted for other crimes, the government promised witnesses “incentives”, such as a lighter sentence, in exchange for testimony favorable to the government's case against the accused.
The disclosure of the criminal records of witnesses places the defense in the same position as the government, which normally knows the history of the accused and the record of potential defense witnesses. In addition, the judge assigned to a criminal case can set a period of time for the exchange of discovery materials, so that the prosecution and criminal defense attorney have sufficient time to review information and evidence before trial. Government attorneys cannot request or consent to the closure of any criminal proceeding without the express prior authorization of the Deputy Attorney General. The proposed draft requires the defendant to request the presentation of evidence, although obviously the government's lawyer can do so without waiting for a request, and there are situations in which due process will require the prosecution, on its own, to reveal evidence “useful to the defense.”.
When prosecutors object to handing over evidence or simply don't, defense attorneys file motions to force the government to comply with the evidence discovery law. Known but not accused criminal conduct (which may be an incentive to gain the favor of a prosecutor). Points (a) (G) (ii) and (b) ((C) (ii) require the court to set a time for disclosure in each case if that time is not already established by a local rule or other order, but leave it to the court to decide when it is most appropriate to announce those deadlines. The new subdivisions (a) (E) and (b) ((C) expand federal criminal discovery by requiring that the intention to rely on expert testimony be revealed, what the testimony will consist of, and the basis for testimony.
Broader discovery by the defense and the prosecution will contribute to a fair and efficient administration of criminal justice by helping to negotiate the guilty plea with knowledge of the facts, by minimizing the undesirable effect of surprise in the trial, and by otherwise contributing to an accurate determination of the question of guilt or innocence. If a prosecutor chooses this path, the defense must be informed that the prosecutor is choosing to present evidence beyond what is required in the circumstances of the case, but is not committing to any obligation to submit evidence beyond the discovery obligations set forth above. In that situation, the party is responsible for providing the required information, but may not be able to obtain the approval and signature of a witness following a request. Modern rules on the exchange of evidence with the opposing party before a civil or criminal trial were developed to ensure that trials were conducted in an orderly manner without wasting time unnecessarily.
If the defendant requests and receives a list of witnesses for the prosecution, the prosecution may request a list of witnesses from the defense. The reasons for allowing the defendant to discover his own statements obviously seem to apply to the substance of any oral statement that the government intends to use as evidence in the trial. .
