Federal Criminal Rules Should Require Prosecutors To Turn Over Witness Lists

Earlier today, I learned of the Federal Criminal Rules Advisory Committee’s decision to vote down (on a 6-5 vote) a proposed change to the Federal Rules of Criminal Procedure that would have required prosecutors to turn over all favorable evidence to the accused. Apparently, the Department of Justice convinced the Criminal Rules Advisory Committee to reject this proposed change. Although I am disappointed in this result, I can’t say that I am surprised. This is not the first time that the Department of Justice has flexed its muscle to prevent the Federal Criminal Rules from being amended in ways that require broader disclosure in federal criminal cases.

Several years ago, I learned that in 1974, the Advisory Committee and the Supreme Court recommended amending the Rules to require the parties in federal criminal cases to exchange witness lists. This proposed amendment had a broad base of support, and ultimately both the Advisory Committee and the Supreme Court agreed that the change should be made. Shortly before the effective date of the new rule, however, Congress (at the behest of the Department of Justice) suspended the effective date of this amendment to Rule 16, and ultimately removed the witness list disclosure provisions. As a result of this action, (and the Advisory Committee’s decision not to take up the issue again), the government is not required to provide the accused with a witness list in federal court.

Criminal lawyers that do not practice in federal court are often surprised (and shocked) to learn that the federal government is not required to turn over something so basic as a witness list when it prosecutes one of its citizens. Those of us that do practice regularly in the federal criminal system seem to just accept this as a reality and the price of doing business in federal court. This practice is particularly unfair, though, and the Rule needs to be changed. Most (if not all) state systems (including Georgia) require the disclosure of witness lists, and some states even permit the parties to take depositions in criminal cases.

In my view, the Advisory Committee needs to go back to the roots it established in 1974. Again, then, both it and the Supreme Court agreed that witness lists should be disclosed in federal criminal cases. Back then, neither the Advisory Committee nor the Supreme Court found any legitimate reason not to make this important change and one certainly does not exist now. Moreover, given the broad base of support that previously existed for this change, the Advisory Committee’s recent 6- 5 vote (on what many perceive to be a more controversial change) suggests that the time is right to do again what the Advisory Committee did over 35 years ago.

Here is a link to an article that includes a more in depth discussion of the Supreme Court’s previous approval requiring the disclosure of witness lists in 1974, and here is a link to David Markus’s discussion of the Advisory Committee’s recent decision not to require the government to disclose all favorable evidence.