ADVISORY COMMITTEE 

ON 

CRIMINAL RULES

RULE 16 MINI-CONFERENCE

Washington, DC

May 6, 2019

TABLE OF CONTENTS

CRIMINAL RULE 16 MINI-CONFERENCE

May 6, 2019 

List of Attendees ......................................................................................................................... 5 

TAB 1 Introductory Memorandum to Mini-Conference Participants 

(April 14, 2019) .................................................................................................... 9 

TAB 2 Proposal to Change the Expert-Disclosure Provisions of Rule 16 

Suggestion 18-CR-F (Carter B. Harrison IV) ................................................. 13 

TAB 3 Proposed Amendment to Rule 16 with Introductory Memorandum

from John S. Siffert (April 15, 2019) ................................................................ 23 

TAB 4 Appendix to Minutes of the October 10, 2018 Meeting of the Advisory 

Committee on Criminal Rules (DRAFT) ....................................................... 31 

TAB 5 Memorandum from Donna Lee Elm Regarding Expert Discovery – 

Defense Concerns (September 17, 2018)1

 ....................................................... 67 

 

1 This item was printed separately and circulated during the mini-conference.

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Attendees 

Invited Participants Subcommittee Members

Marilyn Bernardski, Esq.

Marlo Cadeddu, Esq. 

Prof. Daniel Capra

Michael Donahoe, Esq. 

John Ellis, Jr., Esq. 

Andrew Goldsmith, Esq.

Zachary Hafer, Esq. 

Robert Hur, Esq.

Tracy McCormick, Esq.

Mark Schamel, Esq. 

Elizabeth Shapiro, Esq. 

John Siffert, Esq. 

Douglas Squires, Esq.

Lori Ulrich, Esq.

Hon. Donald Molloy 

 Criminal Rules Committee Chair

Hon. Raymond Kethledge 

 Subcommittee Chair

Hon. James Dever

Prof. Sara Beale 

Prof. Nancy King

Prof. Orin Kerr

Donna Elm, Esq.

Susan Robinson, Esq.

Jonathan Wroblewski, Esq. 

Rebecca Womeldorf, Esq. (AOUSC Staff)

Julie Wilson, Esq. (AOUSC Staff)

Laural Hooper, Esq. (FJC Staff)

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TAB 1 

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MEMO TO: Mini-Conference Participants

FROM: Professors Sara Sun Beale and Nancy King. Reporters

 Advisory Committee on Criminal Rules 

RE: Background Information 

DATE: April 14, 2019 

Judges Jed Rakoff and Paul Grimm have each proposed that Criminal Rule 16 be 

amended to parallel more closely Civil Rule 26(a)(2)’s requirements for pretrial discovery of 

expert testimony. They view current disclosures as inadequate. And, in their view, the 2017 

DOJ memorandum requiring prosecutors to disclose more than Rule 16 requires is not sufficient 

to cure the problems because it is subject to change, not enforceable, unevenly applied, and 

limited to forensic evidence. 

 In October, the Advisory Committee on Criminal Rules (“Committee”) heard 

presentations from representatives from the Department of Justice about the development and 

implementation of its new policies governing disclosure, efforts to improve the quality of its 

forensic analysis, and practices in cases involving forensic and non-forensic evidence. 

Discussion also included comparing discovery in criminal cases with the discovery provided 

under Civil Rule 26(a).1 Draft minutes from that portion of the Committee’s meeting may 

 1 Rule 16(a)(1)(G) currently requires disclosure by the government of only a written summary of 

any testimony that the government intends to use under Federal Rules of Evidence 702, 703, or 705 

during its case-in-chief at trial. “The summary provided under this sub-paragraph must describe the 

witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.” These 

summaries may be produced by the prosecutor, not the witness, and may be short and general (a 

paragraph or two). The rule does not require disclosure of the facts or data considered by the expert, nor 

the exhibits that will be used to summarize or support the expert’s testimony. 

In contrast, Civil Rule 26(a)(2)(B) requires that an expert witness who is expected to testify at 

trial must provide a “written report,” with specified contents. It provides: 

 (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or 

ordered by the court, this disclosure must be accompanied by a written report prepared and 

signed by the witness if the witness is one retained or specially employed to provide expert 

testimony in the case or one whose duties as the party’s employee regularly involve giving 

expert testimony. The report must contain: 

(i) a complete statement of all opinions the witness will express and the basis and 

reasons for them;

 (ii) the facts or data considered by the witness in forming them; 

 (iii) any exhibits that will be used to summarize or support them; 

(iv) the witness's qualifications, including a list of all publications authored in the 

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provide helpful background and are included in the materials at Tab 4. 

The members of the subcommittee charged with considering at these issues are Judge 

Ray Kethledge (Chair), Donna Elm, Esq., Judge James Dever, Judge Gary Feinerman, Professor

Orin Kerr, Susan Robinson, Esq., and Jonathan Wroblewski, Esq. (DOJ). To aid in its 

consideration of possible changes in Rule 16’s provisions concerning expert witnesses, the 

Subcommittee has convened this mini-conference to learn more about the experiences of trial 

counsel. 

To assist in structuring at least part of the discussion, please prepare to discuss the 

following questions at the meeting. To the extent you can provide specific illustrations or 

examples, that would be very helpful. 

(1) What problems if any have you encountered with pretrial disclosure of expert forensic

information before trial?

(2) What problems if any have you encountered with disclosure of non-forensic expert 

information before trial?

(3) What changes or practices would prevent the problems you identify in (1) or (2) 

above? Do you have any experience with cases where such problems were avoided 

using particular changes or practices?

(4) Should the requirements for disclosure of defense expert information to the 

government be the same or different than the government’s disclosure obligations to 

the defense? Why or why not? 

 Also, the subcommittee seeks your reactions to two potential approaches to this general 

issue, each submitted by defense counsel. The two proposals are included in the materials at 

Tab 2 and Tab 3. 

 

previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness 

testified as an expert at trial or by deposition; and 

(vi) a statement of the compensation to be paid for the study and testimony in the 

case.

If the witness has not been “retained or specially employed to provide expert testimony in the 

case” or his duties as the party’s employee do not “regularly involve giving expert testimony,” Civil Rule 

26(a)(2)(C) requires only that the disclosure state the subject matter on which the witness is expected to 

present evidence under Evidence Rules 702, 703, or 705, and a summary of the facts and opinions to 

which the witness is expected to testify.

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TAB 2 

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CHARLES R. PEIFER 

ROBERT E. HANSON 

LAUREN KEEFE 

MARKT. BAKER 

ELIZABETH K. RADOSEVICH 

MATTHEW E. JACKSON 

CARTER B. HARRISON IV 

WALKER BOYD 

PEIFER, HANSON & MULLINS, P.A. 

ATTORNEYS AND COUNSELORS AT LAW 

20 FIRST PLAZA, SUITE 725 

POST OFFICE BOX 25245 

ALBUQUERQUE, NEW MEXICO 87125-5245 

TELEPHONE (505) 247-4800 

FACSIMILE (505) 243-6458 

August 30, 2018 

VIA EMAIL ONLY: donna elm@fd.org 

Advisory Committee on Criminal Rules 

Attn: Donna Lee Elm 

400 North Tampa Street, Suite 2700 

Tampa, FL 33602 

CERIANNE L. MULLINS 

GREGORY P. Vl'ILLIAMS 

OF COUNSEL 

Re: Proposal to Change the Expert-Disclosure Provisions of Fed. R. Crim. P. 16 

Dear Ms. Elm and the Committee: 

I am a CJA attorney in the District of New Mexico who also does a substantial amount of 

federal civil work. I am excited to hear that the Committee is considering adopting more civilstyle expert disclosure rules, and I wanted to share my thoughts on the matter briefly. 

I. Complaints About the Current System

In my opinion, the criminal system for handling expert witnesses - in which opponents of 

an expert get neither a detailed expert report nor a deposition - is inferior to its civil analogue in 

virtually every way. Even cost/efficiency, which I believe to be the real justification for many of 

the comparatively minimal discovery rights afforded in criminal cases, suffers here, because the 

Court often ends up in the position of having to sit and watch an expert deposition - which in 

criminal cases is called a "Daubert hearing" (not to be confused with the "Daubert hearings" in 

civil cases, in which the Court hears primarily legal arguments and whatever minimal testimony 

still needs to be developed after the successive issue refinement provided by the expert report and 

deposition) - unfold live in open court. 

In my experience, the way the expert disclosure process often plays out in criminal cases 

in federal court is that the proponent of the expert will file a two-to-three-page ( double-spaced) 

summary either of the opinions that the proponent hopes the expert will say or of the broad topics 

(barely narrower than the "subject matter") that the expert can testify on. Here, the simple 

requirement (which exists in Civil Rule 26(a)(2)(B) but not in Criminal Rule 16) that the report be 

"signed by the witness" is huge. Many summaries from the Government are (1) written by an 

AUSA and not even seen by the expert prior to the Daubert hearing; and (2) written before the 

18-CR-F

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Advisory Committee on Criminal Rules

August 30, 2018

Page 2 of 7

expert has formed his actual opinions. The experts that are particularly susceptible to this are those

that repeatedly testify to more or less the same opinions in multiple cases, often by stating general

principles of their field of expertise and leaving it to the jury to apply those principles to the case

at hand.

For example, there might be an out-of-state child psychology expert who has testified for

the Government in numerous Districts in sex trafficking cases, and this expert might have become

one of the word-of-mouth go-to experts for AUSAs nationwide facing sex trafficking cases that

appear to be headed to trial. An AUSA in a case set for trial in a month and a half might contact

this expert and Gsign them up' with the understanding that the expert will not be expected to know

much about the facts of the case, but rather will be called to testify, Gseminar-style,' about general

principles of the child psychology of sex trafficking. The AUSA might then copy and paste the

Rule 16(a)(1)(G) summary of the expert's testimony in his or her most recent case, perhaps

modifying the summary to tie principles that the A USA believes apply to the instant case to the

facts (the AUSA is especially likely to do this if, in the prior case, the expert did tie principles to

facts). At that point, defense counsel is handed a "summary" that is effectively a prior publication

excerpt - i.e., a statement by an expert not made in connection with the instant case - that lacks

the reliability attendant to actual publication (both the carefulness of the author and the review of

the expert's peers), and that is augmented by the (non-)expert opinion of the AUSA.

There is no built-in penalty for the AUSA for doing this, provided that he or she drafted an

over-inclusive summary (i.e., one containing opinions that the expert will not ultimately testify to)

rather than an under-inclusive one, as the penalty of having extraneous opinions struck is no

penalty at all if the expert was never going to testify to them anyway, and the defense cannot even

impeach the expert with the summary because the expert did not write it.l The defense counsel

might then file a Daubert motion that is directed to opinions that the expert does not even have,

and the Court will then set a hearing. Cross-examination at criminal Daubert hearings, in my

view, tends to try to serve the role of both deposition (with open questions for the purpose of

discovery) and hearing (with leading questions for the purpose of persuasion), and does neither

well.

II. Proposal for Reciprocal Expert-Report Discovery

At a minimum, I believe the Committee should require an expert signed disclosure for all

retained experts (a term I will use to refer to those experts required to provide a report under Civil

Rule 26(a)(2)(B)).2 I also see little downside to requiring that this report fulfill all the detailedness

requirements of a civil expert report.

' Judges seem to vary regarding wliether an opponent technically can impeacli an expert with the summary -

i.e., whetlier reading from tlie document to contradict the expert is allowed (I always say that the summary is

attributable as a prior statement by tlie expert under FRE 801(d)(2)) - but it certainly is not effective impeachtnent

when the expert can honestly explain that he or she neither wrote nor approved the summary.

2 I will discuss this more below, see Park III, infra, but please do ensure, if your rule recognizes a (sensible)

distinction in disclosure obligations between retained/'party-controlled5 experts on the one hand and

unretained/independent experts on the other, tliat case agents who testify in a dual role as both fact and expert

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Advisory Committee on Criminal Rules

August 30, 2018

Page 3 of 7

How to handle reciprocity is an interesting issue. My sense is that heightening the current

Rule 16(a)(1)(G)/(b)(1)(C) requirements by adding an expert report obligation for retained experts

will benefit defendants more than the Governtnent, simply because the Government uses more

experts. That said, the current paltry expert disclosure regime of the Criminal Rules incentivizes

defendants in some cases - at their selection - to forego any reciprocal expert disclosure, and those

cases, although somewhat rare, can when they arise put the defendant in a much better situation

than the Government, given the ability to effectively circumvent the pretrial Daubert motion

process. (This might occur if, for example, the defense anticipates that the Government will either

not put on expert testimony or will only put on expert testimony in which disclosure will be

minimally helpful to the defense - such as chemical identification of drugs testimony, which is

obviously naubert-satisfying and where the defense knows what is going to be said - and the

defense intends to put on expert testimony either from a less than reputable expert or field of study,

or that will be difficult for the Government to anticipate the contours of, such as battered spouse

testimony in support of a self-defense claim.) In short, I think the increase from no disclosure to

reciprocal "summary" disclosure benefits the Government more than the defense, while the

increase from reciprocal "summary" disclosure to reciprocal "report" disclosure benefits the

defense more than the Government.

Given that reality, I would retain the obligations imparted by Rule 16(a)(1)(G) and

(b)(l)(C) as they currently exist and simply add an additional ground of reciprocal discovery that

obligates the production of a signed expert report for retained expert witnesses (this would then

excuse the obligation of providing a summary for those experts). Here is a proposed redline of the

relevant portions of Rule 16, with additions underlined and deletions stricken; where text taken

from Civil Rule 26(a)(2)(B) is modified, I have noted it in red:

(G) Expert ' Summaries. Atthedefendant'srequest,thegovernrnent

must give to the defendant a written summary of any testimony that the

government intends to use under Rules 702, 703, or 705 ofthe Federal Rules

of Evidence during its case-in-chief at trial. If the government requests

discovery under subdivision (b)(l)(C)(ii) and the defendant complies, the

witnesses fall on the party-controlled/higher disclosure side of the divide. This is one area wliere there is a major

difference in context and expectations between the criminal and civil rules and practice. In civil cases, when a

judge or attorney thinks of a "dual role" expert who lias botli facts and expert opinions to testify about, they are

probably thinking of a 'treating pliysician,' and tlie judge's major concern is probably encouraging their use by

not weigliing down proponents witli unrealistic obligations that the proponent tlien has to pass onto the physician,

who may have no particular desire to participate in the case; in short, such witnesses are seen as desirable and

trustworthy, and the rules are written and interpreted with tliat in mind. In criminal cases, dual role experts are

usually law enforcement officers who want to explain wl"iy their factual observations point to the defendant's

guilt by way of 'expert' testimony that (1) may have been developed during the instant case's investigation (e.g.,

meanings of code words); (2) may be more suspicion, speculation, or intuition than real expertise; (3) may veer

into Gprofile' evidence of tlie defendant, wliich may be unreliable and may violate character-evidence rules; and

(4) may invade on the decisionmaking province of the jury. These experts are widely viewed as suspect, and the

courts have largely struggled in curtailing the dangers of their use. See, e.g., United States v. Rodriguez, 125

F. Supp. 3d 1216, 1248-53 (D.N.M. 2015) (outlining six dangers of law-enforcement expert testimony).

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Advisory Committee on Criminal Rules

August 30, 2018

Page 4 of 7

goveinrnent must, at tlie defendant's request, give to the defendant a written

summary of testimony that the government intends to use under Rules 702,

703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue

of the defendant's mental condition. The summary provided under this

subparagraph must describe the witness's opinions, the bases and reasons

for those opinions, and the witness's qualifications.

(H) Expert Reports. At the defendant's request, the governrnent must give to

the defendant a written report - prepared and signed by the witness - for

each witness from whom the goverent intends to elicit testimony under

Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-inchief at trial, if the witness is one retained or specially employed in an

investigative capacity or to provide expert testimony in the case or one

whose duties as the party's employee regularly involve giving expert

testimony. The report must contain:

(D a complete statement of all opinions the witness will express

and the basis and reasons for them:

(ii) the facts or data considered by the witness in forming them,

(iii) any exhibits that will be used to summarize or support thetn;

(iv) the witness's qualifications, ineluding a list of all

publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years,

the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and

testimony in the case.

If an expert report is provided for a witness under this subdivision, the

governrnent need not separatelyprovide an expert summary for that witness

under subdivision (a)(l)(G).

(C) Expert ' Summaries. The defendant must, at the government's

request, give to the government a written summary of any testimony that

the defendant intends to use under Rules 702, 703, or 705 of the Federal

Rules of Evidence as evidence at trial, if-

(i) the defendant requests disclosure under subdivision

(a)(l)(G) and the governtnent complies; or

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Advisory Committee on Criminal Rules

August 30, 2018

Page 5 of 7

(ii) the defendant has given notice under Rule 12.2(b) of an

intent to present expert testimony on the defendant's mental

condition.

This summary must describe the witness's opinions, the bases and reasons

for those opinions, and the witness's qualifications.

(D) ExpertReports. IfadefendantrequestsdisclosureunderRulel6(a)(1)(H)

and the government complies, then the defendant must give to the

government a written report - prepared and signed by the witness - for each

witness from whom the defendant intends to elicit testimony under Rules

702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief

at trial. if the witness is one retained or specially employed in an

investigative capacity or to provide expert testimony in the case or one

whose duties as the party's employee regularly involve giving expert

testimony. The report must contain:

(i € a complete statement of all opinions the witness will express

and the basis and reasons for them:

(ii) the facts or data considered by the witness in forminz them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness's qualifications, including a list of all

publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years,

the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and

testimony in the case.

If an expert report is provided for a witness under this subdivision, the

defendant need not separately provide an expert summary for that witness

under subdivision (a)( 1 )(G).

I fully admit that the addition of an entirely separate subdivision for reports (versus

summaries) is not the most elegant draftsmanship, but the Rule already breaks out "reports of

examinations and tests" from "documents and objects" and "expert witnesses," and I think

attempting to jam extensive new material into subdivision (a)(l)(G)/(b)(l)(C) will render those

subdivisions difficult to read.

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Advisory Committee on Criminal Rules

August 30, 2018

Page 6 of 7

III. Proposal for Reciprocal Depositions of Retained Experts

This is probably asking for too much (and too big of a break from the longstanding federal

criminal tradition opposing depositions), but I also genuinely believe that providing an additional

option for the reciprocal deposition of retained experts would increase both the quality of the truthseeking function of discovery and the efficiency of the proceedings. The benefits of expert

depositions are obvious, and efficiency could be additionally improved by (1) time-limiting the

depositions to less than the civil standard of seven hours (I have found that 4 hour depositions

work well),, (2) reversing or loosening the civil case norm that the deposition taker has primary

authority for selecting the date and time of the deposition, and providing a late deadline by which

the expert's proponent must make the expert available for deposition - I would think that 7-14

days before the Daubert-motions deadline would be sufficient - so that the number of depositions

taken in cases that ultimately plead out is minimized; and (3) tying the taking of an expert

deposition to a requirement (either explicit in the rule or recognized by convention, although I

recommend the former given the strong inertia of convention among the criminal bar) that any

Daubert motion contain citations to the transcript sufficient for the Court to rule on the motion

without a hearing. My state5s state court system gives criminal litigants a right to interview all of

the other side's witnesses - not just experts - and the world has not come to an end; the procedure

is widely popular among the bar and believed to produce superior results to a cblind' system (and

the pretrial interview system to which I am referring is, in many ways, much more onerous on the

prosecution than the reciprocal-at-the-defense's-option system of expert depositions that I am

proposing here).

If the Committee were interested, I think such a change could be made by simply adding a

new subdivision to the bottom of Rule 16(a)(1), "Depositions of Retained Experts," and adding a

couple words long disclaimer somewhere in Rule 15 effectively subjecting expert depositions to

the procedural provisions of Rule 15, but not its availability provisions. I would recommend

making a condition of the defendant5s invocation of the reciprocal deposition option that he waives

the right to appear personally at the depositions (either the government's depositions of his experts

or his depositions of the government5s); Rule 15(c) currently grants the defendant a right to be

present at depositions.

Aside from the obvious benefits, an additional plus to implementing this idea is that it will

provide some deterrent/drawback to designating fact witnesses aligned with a party (usually case

agents) as dual-role expert witnesses, as doing so would expose them to a deposition that they

would otherwise not have to go through. See supra note 2. I think that this result is entirely

appropriate not just as a matter of crough justice,' but also because such expert testimony is among

the most in need of close examination under Rules 702-705 (and probably really 701); if the

Government wants to put on "expert" testimony in the venerable scientific field of "why my client

is guilty," then it should at least have to demonstrate how that expertise was developed through

actual experience outside of the instant case - a time-consuming vein of cross-examination that is

among the least appropriate things to ask an expert about in front of a jury (which is the current

method of handling the task).

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Advisory Committee on Criminal Rules

August 30, 2018

Page 7 of 7

Thank you for taking the time to review my concerns. I think this is an important topic

where there is significant room for meaningful improvement in the Rules. Best of luck with your

changes.

Very truly yours,

1

Carter B. Harrison IV

CBH/ml

cc: Rebecca A. Womeldorf

(RulesCommitteeSecretary@ao.uscourts.gov)

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TAB 3 

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To: Hon. Raymond Kethledge April 15, 2019

CC: Prof. Sara Sun Beale, Prof. Nancy King

From: John S. Siffert 

Memorandum Re: Proposed Rule 16(a)(1)(G) and Comment

Attached is a proposal for an amendment to Rule 16(1)1(G), together with a proposed Comment, to 

modify the Criminal Rules respecting expert discovery. 

There is consensus in the defense community that current Criminal Rule 16(a)(1)(G) does not provide 

sufficient notice in terms of timeliness, substance, or accountability of expected expert testimony. There 

are abundant examples in the case law and literature of wrongful convictions and so-called expert 

testimony based on “junk science,” where defense counsel did not have sufficient notice to defend 

against the witness’s testimony. 

The proposal is premised on Rule 26 of the Federal Rules of Civil Procedure, which requires that the 

proponent of an expert witness must produce a written report signed by the witness that makes 

specified disclosures pre-trial. 

The current proposal incorporates comments from 7 practitioners (including 3 former federal 

prosecutors), one law professor, and two judges. It represents (mostly) a consensus, with lots of 

compromises.

The two biggest defense compromises are retaining reciprocity in the disclosure of expert reports and 

relegating the disclosure of Rule 701 lay opinion testimony to the Comment. 

There was some push to require government disclosure 90 days before trial, but the proposal allows the 

trial judge to require more or less than 45 days, upon a showing of good cause. 

One state judge expressed concern that the proposed rule will require training of the federal experts as 

to what is required, based on her experience in Texas, which has adopted very progressive disclosure 

requirements. Among other things, the judge suggests that the training include a walk-through of a 

hypothetical scenario.

I hope the proposal (and this explanation) will be of use in the upcoming deliberations of the miniconference, the Subcommittee, and the Committee.

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Proposed Amendment to Criminal Rule 16

(G) Expert witnesses.

(i) Government’s Disclosure: At the defendant’s request, the government must give to the 

defendant, no less than 45 days prior to trial, except for good cause shown, a written report—

prepared and signed by the witness—of any testimony that the government intends to use under 

Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the 

government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies within 

45 days thereafter, or as ordered by the court, the government must, at the defendant’s request, 

give to the defendant a written report of testimony that the government intends to use under 

Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the 

defendant’s mental condition. The report must contain: 

(a) a complete statement of all opinions the witness will express and the basis and 

reasons for them;

(b) the facts or data considered by the witness in forming them; 

(c) any exhibits that will be used to summarize or support them;

(d) the witness’s qualifications, including a list of all publications authored in the 

previous 10 years; 

(e) a list of all other cases in which, during the previous 4 years, the witness testified as 

an expert at trial or by deposition; and 

(f) a statement of the compensation to be paid for the study and testimony in the case.

(ii) Drafts of any report and communications between any expert and an attorney for the 

defense or for the government required under subdivisions (a)(1)(G) or (b)(1)(C) need not be 

produced unless ordered by the court for good cause or unless otherwise required. 

. . . 

(b) Defendant’s Disclosure. 

(1) Information Subject to Disclosure.

 (C) Expert witnesses.--At the government’s request, the defendant must give to the government no 

sooner than 30 days after receipt of the government’s report under subdivision (a)(1)(G) a written report, 

except for good cause shown—prepared and signed by the witness—of any testimony that the defendant 

intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-inchief at trial, if– 

 

(i) the defendant requests disclosure under subdivision (a)(1)(G) and the government 

complies; or 

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(ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony 

on the defendant’s mental condition. 

The report must contain the information set forth in subdivisions (a)(1)(G)(i)(a)-(f).

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Redline Version of the Proposed Amendment Compared to Existing

Criminal Rule 16

(G) Expert witnesses.

(i) Government’s Disclosure: At the defendant’s request, the government must give to the 

defendant, no less than 45 days prior to trial, except for good cause shown, a written summary

report—prepared and signed by the witness—of any testimony that the government intends to use 

under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If 

the government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies 

within 45 days thereafter, or as ordered by the court, the government must, at the defendant’s 

request, give to the defendant a written summary report of testimony that the government intends 

to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the 

issue of the defendant’s mental condition. The summary provided under this subparagraph report 

must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s 

qualifications contain: 

(a) a complete statement of all opinions the witness will express and the basis and 

reasons for them;

(b) the facts or data considered by the witness in forming them; 

(c) any exhibits that will be used to summarize or support them; 

(d) the witness’s qualifications, including a list of all publications authored in the 

previous 10 years; 

(e) a list of all other cases in which, during the previous 4 years, the witness testified as 

an expert at trial or by deposition; and 

(f) a statement of the compensation to be paid for the study and testimony in the case. 

(ii) Drafts of any report and communications between any expert and an attorney for the 

defense or for the government required under subdivisions (a)(1)(G) or (b)(1)(C) need not be 

produced unless ordered by the court for good cause or unless otherwise required. 

. . . 

(b) Defendant’s Disclosure. 

(1) Information Subject to Disclosure.

 (C) Expert witnesses.– The defendant must, at the government’s request, give to the government a 

written summary At the government’s request, the defendant must give to the government no sooner than 

30 days after receipt of the government’s report under subdivision (a)(1)(G) a written report, except for 

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good cause shown—prepared and signed by the witness—of any testimony that the defendant intends to 

use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence during its case-inchief at trial, if–

 

(i) The defendant requests disclosure under subdivision (a)(1)(G) and the government 

complies; or 

(ii) The defendant has given notice under Rule 12.2(b) of an intent to present expert 

testimony on the defendant’s mental condition. 

This summary must describe the witness’s opinions, the bases and reasons for those opinions, and the 

witness’s qualifications.

The report must contain the information set forth in subdivisions (a)(1)(G)(i)(a)-(f).

 Proposed Comment to Amendment to Rule 16, Fed. R. Crim. P.

Rule 16(a)(1)(G) is modeled after the analogous Federal Rule of Civil Procedure 

26(a)(2)(B). The Rule requires the government to disclose a written report that is prepared and 

signed by the witness who will be testifying pursuant to Rules 702, 703 or 705 of the Federal 

Rules of Evidence that pertains to testimony by the expert witnesses, the bases for their opinions, 

and the facts or data underlying their opinions. The amended Rule 16 is not limited to forensic 

and scientific experts. It applies to expert testimony based on “scientific, technical, or other 

specialized knowledge,” that is “based on sufficient facts or data,” is “the product of reliable 

principles and methods,” where the expert has “reliably applied the principles and methods to the 

facts of the case.” Rule 702, Fed. R. Evid. It also applies to expert testimony based “on facts or 

data in the case that the expert has been made aware of or personally observed.” Rule 703, Fed. 

R. Evid. 

Although the Rule does not require signed, written reports of witnesses who are expected 

to give lay opinion testimony under Rule 701, Fed. R. Evid., the origins of Rule 701 suggest that 

courts should exercise their discretion in requiring pretrial disclosure of lay opinion testimony. 

According to the 1972 Advisory Committee Notes to Proposed Rule 701, it was believed that 

practical necessity required that courts determine on a case by case basis whether the lay opinion 

would be “helpful to clearly understanding the witness’s testimony or to determining a fact in 

issue.” According to the Note, it was deemed “too elusive” to create a standardized rule that 

defined “helpful” that could be applied in all cases; instead, reliance on the adversary system and 

cross-examination “will generally lead to an acceptable result.” District judges should be alert to 

situations when Rule 701 lay testimony will be offered as to a material issue in the case without 

sufficient advance notice, thereby impairing the defendant’s ability to effectively cross-examine. 

The requirement that the government disclose a written report signed by the testifying 

expert replaces the rule that called for disclosure of an unsigned summary of the expected 

testimony. In order to ensure proper notice to prevent unfair surprise to the defense, the Rule 

describes what should be included in the content of the report: 

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(a) a complete statement of all opinions the witness will express and the basis and reasons for 

them;

(b) the facts or data considered by the witness in forming them; 

(c) any exhibits that will be used to summarize or support them;

(d) the witness’s qualifications, including a list of all publications authored in the previous 10 

years;

(e) a list of all other cases in which, during the previous 4 years, the witness testified as an 

expert at trial or by deposition; and

(f) a statement of the compensation to be paid for the study and testimony in the case.

The Rule requires that the report shall be given to the defendant no less than 45 days in 

advance of trial. However, the Rule also recognizes that the trial court retains discretion to order 

the production of the report more than 45 days in advance of trial, or to delay the disclosure of 

the report upon a showing of good cause. 

 Like Rule 26(a)(2)(B), Fed. R. Civ. P., the Rule retains reciprocity and requires the 

defense to produce signed reports written by its experts, if the government complies with a 

defense request to produce the government expert’s report. The Rule provides that the defense 

should produce its expert reports within 30 days of the government’s disclosure of its expert 

report, but the court retains discretion to change that time. 

 The Rule adopts the protection to work product and drafts of the expert reports that is 

afforded in Rule 26(b)(4)(c), Fed. R. Civ. P. However, the Rule provides that this protection does 

not diminish the discretion of the court to require such disclosure, nor does it relieve the 

government from its existing obligations under the U.S. Constitution as interpreted by the courts, 

including in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 

(1972).

 

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ADVISORY COMMITTEE ON CRIMINAL RULES

APPENDIX TO MINUTES (DRAFT)

October 10, 2018 | Nashville, TN 

 Judge Molloy announced that the Committee would go next to Tab 6 in the Agenda 

Book. In anticipation of the mini-conference, one of the things that has been discussed on a 

number of fronts is the interaction between the rules and practical aspects of discovery in 

criminal cases. We wanted to flesh out Rule 16 as it relates to expert reports as well as other 

discovery. Jonathan Wroblewski put together a panel of experts to help us understand what the 

Justice Department sees as some issues regarding both expert disclosure and discovery in 

general. 

 Mr. Wroblewski explained that after the discussion at our last meeting about discovery 

and forensic cases, the Department undertook various research projects to learn what’s going on 

in the field, where there are problems, and where our guidance has addressed some of those 

problems. The reporters and Judge Malloy thought it would be a good idea to present some of 

these developments here, beginning with Andrew Goldsmith, the Department’s National 

Criminal Discovery Coordinator. 

Mr. Goldsmith thanked Judge Molloy for inviting him to address the Committee, as he 

had done in the past. He expressed pleasure at returning and seeing familiar faces, and 

apologized for having to leave early. Mr. Goldsmith introduced the other speakers on behalf of 

the Department: 

Zack Hafer, the Criminal Chief in the District of Massachusetts, to discuss 

examples of discovery in criminal cases involving non-forensic experts; 

Ted Hunt, who is the Senior Advisor on Forensic Science, to talk about the 

Department’s efforts to improve forensic science; 

Erich Smith, from the FBI’s Firearms and Toolmarks Unit, to describe an 

example of forensic analysis and its documentation which is directly relevant to 

discovery related issues; and 

Jeannette Vargas, Deputy Chief of the Civil Division in the Southern District of 

New York, to talk about discovery in civil cases involving experts. 

 Mr. Goldsmith described his experience and the history of his position to provide context 

for what the Department has done, is doing, and will do, when it comes to discovery. His 

position was created around 2010 as a short-term detail assigned to the Executive Office of U.S. 

Attorneys. Mr. Goldsmith described himself as a career prosecutor, first in DA’s office and later 

as an AUSA in New Jersey in the 1990’s. He noted that his experience “in the trenches” gives 

him credibility in developing policies and training prosecutors. 

 In late 2011, Mr. Goldsmith’s position was converted to a career SES level position, in 

response to concerns raised by the Rules Committee that the Department’s discovery efforts 

might be a temporary fix and may change in a new administration. This is now a career position 

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at the highest level in the Justice Department. Mr. Goldsmith has now worked for multiple 

Deputy Attorneys General. When a new administration comes in, he is one of three or four 

senior career officials remaining in the Deputy’s office. 

 Mr. Goldsmith noted that this discovery is a bedrock priority for the Department. The 

Deputy Attorney General oversees all 6000 federal prosecutors, both those in U.S. Attorney’s 

Offices and in Main Justice, and all of them receive the policies that Mr. Goldsmith issues on 

discovery and the related training. In 2014, Mr. Goldsmith became an Associate Deputy 

Attorney General, which is the fourth highest position in the Justice Department, which is a 

further indication of how significant criminal discovery is to the Department. 

 Mr. Goldsmith said that discovery training became mandatory as a direct result of 

concerns raised at the Criminal Rules Committee’s 2010 meeting in Chicago. The Department 

responded by making training mandatory under the United States Attorney’s Manual (which was 

recently renamed the Justice Manual). There is now online mandatory training as well as live 

training at the National Advocacy Center, and Mr. Goldsmith has visited 60 U.S. Attorney’s 

Offices. Training topics come from a variety of sources, including defense attorneys, judges, and 

prosecutors. The Department also has a new criminal discovery bootcamp for prosecutors. There 

are also extensive resources, including the ESI protocol (for discovery of electronically stored 

evidence), which was developed in a collaboration between the Justice Department and defender 

services organizations. Mr. Goldsmith and his colleagues also worked with the Federal Judicial 

Center to develop a 90-page criminal e-discovery pocket guide for judges. They also answer 

questions every day from the field. 

 Mr. Goldsmith described the Department’s supplemental guidance for prosecutors 

regarding criminal discovery involving forensic evidence and experts. After receiving input 

from various stakeholders (including Judge Rakoff and other judges) regarding criminal 

discovery in cases involving forensics, the Department decided to take a closer look. Deputy 

Attorney General (“DAG”) Yates asked Mr. Goldsmith to work closely with a working group 

that consisted of federal prosecutors, law enforcement personnel, and forensic scientists, to 

develop pragmatic meaningful guidance. 

 In January 2017, DAG Yates issued what was called the supplemental guidance for 

prosecutors regarding criminal discovery involving forensic evidence and experts. At the outset, 

the guidance notes that forensic science covers a variety of fields and specialties such as DNA 

testing, chemistry, as well as ballistics and impression analysis. Although it specifically informs 

prosecutors of the parts of Rule 16 that are triggered when it comes to forensics, the guidance

goes beyond the rule. It reminds prosecutors of potential disclosure obligations under Brady, 

Giglio, and the Jencks Act. It sets forth an easy-to-understand four-step process to ensure the 

prosecutors meet their disclosure obligations. Although not legally required, the guidance

instructs prosecutors to provide the defense with a copy of/access to laboratory or forensic 

expert’s “case file,” either in electronic or hard copy form. Finally, it reiterates one of the key 

parts of the Department’s culture in the last decade: “We go further than the law requires. We go 

farther than the legal minimum.” 

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 In 2017, the guidance became part of the Department’s mandatory criminal discovery 

training. Mr. Goldsmith recorded a session, and when prosecutors logged on to watch their 

discovery training, they listened to him tell them what this guidance means in terms of their dayto-day responsibilities. This is also part of the mandatory training for new prosecutors in

discovery boot camp. In fact, today he was initially scheduled to be training new prosecutors on 

disclosure of forensic evidence under Rule 16. 

 Finally, Mr. Goldsmith responded to concerns that the 2017 guidance, while extremely 

helpful, might not continue as a policy under the current administration. To the contrary, he 

proudly reported, the guidance has become formalized and codified as § 9-5.003 of the Justice 

Manual (formerly known as the U.S. Attorney’s Manual). The Department has also hired Ted 

Hunt as a Senior Advisor on Forensics, and it is issuing clear and transparent guidance on several 

key topics including testimony monitoring, and uniform language for testimony of reports. 

 Next, Mr. Goldsmith discussed why the Department believes that Rule 16, as written, 

deals well with expert testimony generally. Although it specifically addresses forensics, § 9-.003 

of the Justice Manual provides useful framework, setting forth key parts of Rule 16 for experts 

and a four-step approach that is just as useful for all experts, whether forensic or otherwise. Step 

2 emphasizes to prosecutors how critical it is to provide a written summary for expert witnesses 

that the government intends to call at trial, summarizing the analyses formed, describing any 

conclusion reached, and explaining the basis and the reason for the expert’s inspected testimony. 

Mr. Goldsmith noted that Rule 16 applies to all experts, not just forensic experts. The 

Department’s position is no change in the law is needed. Rather, practitioners, prosecutors, and 

defense attorneys alike need to understand how important it is to follow the rules. 

 Mr. Goldsmith thought it would be a bad idea to incorporate parts of Rule 26 of the Rules 

of Civil Procedure into the Criminal Rules. Rule 26 itself provides extensive discovery 

requirements for witnesses who are retained or specifically employed to provide expert 

testimony in a civil case. But virtually all expert witnesses in civil cases are retained by one of 

the parties, so it is hardly surprising that under the rule they have extensive discovery 

obligations. In contrast, most experts in criminal cases are not retained – at least not those called 

by the government – except in a few circumstances that Mr. Hafer will discuss. The main job of 

most experts called by the government is investigating and solving crimes, both to help convict 

the guilty but also exonerate the innocent. To saddle them with far more burdensome discovery 

obligations means they would spend the bulk of their time writing extensive reports rather than 

doing that important work. 

 Mr. Goldsmith also emphasized several other differences between civil and criminal 

cases. A civil case tends to operate as something of a closed universe: the expert report is 

generated, it goes to the other side, depositions occur, and the trial is based on all of that 

information. In contrast, criminal cases are affected by the Speedy Trial Act, the prosecution’s 

higher burden of proof, and constitutional and statutory obligations that require provision of a 

fair amount of information helpful to the defense. Notwithstanding Rule 16’s reciprocal

discovery obligations, unfortunately, many defense counsel fail to comply with their obligations. 

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Frequently the prosecution does not learn until the eve of trial who the defense plans to call, what 

the defenses are, or if the defendant will testify. This may cause government expert witnesses to 

change their report as defenses shift and witnesses change up until the last minute. As a result, 

he said, the requirements in Rule 26 would disproportionally – if not exclusively – be visited on 

the government. 

 Moreover, Mr. Goldsmith predicted that if Rule 26’s extensive discovery obligations 

were adopted in criminal cases, they would be unfortunately used aggressively and affirmatively 

by certain defense attorneys to saddle the government with additional responsibilities, and to 

suggest to the court that the government is failing to comply. Although some of these would be 

legitimate, based on seeing the day-to-day administration Mr. Goldsmith said he believes it 

would burden the court, distract from the search for the truth, and possibly raise challenges under 

the Speedy Trial Act. He concluded that the expert disclosure would end up being the “tail 

wagging a much larger dog,” because that’s where the focus would be if Rule 26 requirements 

were applied to criminal cases. Mr. Goldsmith’s experiences as a career prosecutor, and as the 

person responsible for ensuring that all federal prosecutors meet their discovery obligations,

caused him to conclude that Rule 16 is sufficient for expert witnesses. It is critical that 

prosecutors understand the law, which is what the Department is striving to achieve with clear 

policies and increases in regular training. 

 Judge Kethledge observed that we are going to have a mini-conference, and it was fair to 

say there is very serious interest in revising Rule 16’s expert disclosure requirements to require 

more detailed and meaningful disclosures for the parties and the court in criminal cases. 

Obviously, he noted, the Department is strongly opposed to something like adopting Civil Rule 

26 wholesale; but it would be very helpful to our Subcommittee (and ultimately for the 

Department) if the Department gave us a proposal it thinks does make sense, perhaps something 

between the current rule and the Rule 26 approach. He observed that proposals to the Committee 

from the other side were coming over the transom, and we hear the Department’s objections 

about certain things in those proposals. But it would be helpful if the Department were more 

than a critic and gave us a proposal that it thinks makes sense. Mr. Goldsmith replied, “message 

received.”

Judge Molloy asked Mr. Goldsmith how the Department audited compliance. You have 

all the training, but how do you audit whether it is being followed? Mr. Goldsmith responded 

that there is no formal audit, but he has a good overview because of the enquiries from the field 

and his nationwide contacts with prosecutors. That permits him to start to see patterns. 

The next speaker was Zach Hafer, the Chief of the Criminal Division in the U.S. 

Attorney’s office in Boston, who supervises more than 100 Assistant U.S. Attorneys. Mr. Hafer 

addressed non-forensic expert discovery in criminal cases, specifically case-in-chief experts but 

not rebuttal or sentencing experts. Noting that the distinction between forensic and non-forensic 

experts is often gray, he said his focus was not lab-type experts, and not DEA agents who might 

testify about coded drug dealer language. He began by stating that when the government 

presents a criminal case, the goal is to be stream-lined, and not turn it into an expert battle. In 

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the vast majority of criminal cases, the Department does not use retained non-forensic experts. 

He would present three examples in which the government did in fact use retained non-forensic, 

but he emphasized again that such experts are relatively rare, and not found in the garden variety 

criminal cases that most of you see day-in and day-out. 

Mr. Hafer stated it is relatively straightforward to explain the kinds of cases in which the 

government will present a non-forensic expert. It depends on the elements of the crimes you’ve 

charged, and the prosecutors make a determination whether an expert would provide necessary 

context on a complex subject or assist in proving an element of one of the offenses beyond a 

reasonable doubt. He described four kinds of scenarios in which federal prosecutors most 

commonly determine that they need a non-forensic expert. In the first, and likely least common, 

during the investigatory phase the AUSAs determine the identity of an actual expert they will 

need at trial, and they retain the expert, prior to charging. (He noted that he would describe one 

of those cases, the NECC case out of Boston, later.) In the second scenario, during the 

investigation at some point the AUSA might realize he or she might need an expert, but they 

identify only the need for an expert, not the individual expert. In the third scenario, after 

indictment, within what he called the court-approved pretrial window, the AUSA identifies the 

need for an expert. The final scenario is what he called eve-of-trial identification due to a lastminute change in defense strategy – perhaps a stipulation has collapsed, for example, and the 

government realizes in a child pornography case that it needs an expert on pre-pubescent 

children or something like that. Those would be the four most common ways in which an AUSA 

to identify experts in a criminal case. 

Mr. Hafer said there is little integration of experts into the prosecution’s case before 

charging (though the NECC case was an exception to that rule). After indictment in a case 

where the prosecutors have recognized a need for an expert, they most likely will consult with 

several. Often, they will choose not to use one. But if they decide to retain one, they do not 

want circuit riders or hired guns. The government wants to use experts who maintain 

impartiality and does not want them to become part of the trial team. To that end, he said, 

prosecutors control the information that the expert reviews. And if it’s an opinion case, forming 

the opinion, the prosecutor controls what the expert reviews, whether it’s 302’s, financial 

documents, or whatever the expert uses to form his or her opinion on the case. He emphasized 

that the government will never offer expert opinion on the issue of guilt. 

Mr. Hafer identified the four most operative rules and statutes: (1) the Speedy Trial Act; 

(2) Federal Rule of Criminal Procedure 16(a)(1)(G), which provides that the government shall 

provide a witness summary of its case-in-chief expert testimony including a witness opinion, a 

basis therefore, and the witness qualifications; (3) the Jencks Act, 18 U.S.C. § 3500, which 

requires prosecutors to turn over witness statements after the witness has testified; and (4) 

Massachusetts Local Rule16.1(c)(1)(A), which requires all information discoverable under 

Federal Rule 16(a)(1) to be produced to the defendant within 28 days of arraignment. 

He observed that the experience in Massachusetts was fairly representative of the 

country. Notwithstanding that 28-day period set by the local rules, typically during the initial 

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status conference before the magistrate, the parties will say they have negotiated the date back, 

and ask the court to set off the trial date for expert disclosures. 

Mr. Hafer stated that he had reviewed scores of examples from Massachusetts, and the 

date for expert disclosures averaged about 45 days prior to trial (though there were longer and 

shorter ones). But in their experience a date too far in advance of trial is unhelpful because of 

the nature of criminal cases involving defenses, strategies, and so forth. They generally make 

expert disclosures about 45 days before trial.

 Mr. Hafer premised his description of the disclosures with a comment about the 

philosophy of expert disclosures. He read Attorney Harrison’s proposal [18-CR-F] stating that in 

a typical case, prosecutors simply disclose a double-spaced 2-3-page summary of what we hope 

the expert will say on broad topics. Mr. Hafer said that has not been my experience and would 

not be reflected in the three examples that he would present. He said that their goal is to make

comprehensive, specific disclosure regardless of whether there is an expert report. In two of the 

cases he would review for the Committee, one included an expert report and the other did not. 

Mr. Hafer stated that when the expert disclosure comes up short or is inaccurate for 

whatever reason, there are several existing remedies for defense counsel and the court to address 

disclosure that is determined to be inadequate. But their goal is to provide comprehensive, casespecific disclosures. They have no per se objection to signed expert reports. There are many, 

many cases where they are warranted. But they should not be required in every case. 

Mr. Hafer described a typical expert disclosure. It will include the expert’s CV, and if it 

does not list his or her publications, the government will provide those separately. It will include 

the written summary that Rule 16(a)(1)(G) requires of the expected testimony in that case. If it is 

an opinion as opposed to a context case, the materials that the expert relied on in forming his or 

her opinion will be disclosed. Obviously, if there is a report, it will be disclosed. In most cases 

the government also discloses any prior testimony; that could be prior testimony in criminal or 

civil cases, or Congressional testimony. He noted that there is an ongoing controversy as to 

whether the government is required to do that, but he noted that when they do so it is with the 

proviso that it is a courtesy production of the prior testimony and not one required by the Jencks 

Act. But typically they will provide prior testimony. 

 Mr. Hafer then turned to the disclosures made in three cases, noting again that it is

relatively rare for the government to retain non-forensic experts. 

The first case Mr. Hafer described was a Boston case, United States v. David Wright. 

Wright was an ISIS recruiter who plotted to kill a blogger who had organized a Prophet 

Mohammed cartoon drawing contest. With Wright’s blessing, Wright’s uncle, Mr. Rahim, 

decided to go after Boston police officers before going after the blogger. Mr. Rahim was shot 

and killed on the streets of Boston as he approached several Boston police officers with a large 

knife. Wright was charged with material support to ISIS. Mr. Hafer explained that the 

government retained an expert, Aaron Zelin, primarily for two purposes. The first was to 

provide the jury with background and context on the history and structure of ISIS, a classic 

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subject beyond the ken of the average juror. The second was more specific, which was to 

connect known ISIS members to certain [unintelligible] killed by Boston police officers and to 

offer an opinion with respect to specific items that had been found in the apartment, for example 

the ISIS magazine. Mr. Zelman did not author a report in this case, but the prosecutor disclosed a 

summary of his testimony, his CV, and prior testimony in other cases. 

Mr. Hafer stated that this expert did not write a report. He is only going over the 

disclosure to show what actually was disclosed. He projected the material, noting it might be a 

little hard for the Committee to read, but it was from the actual disclosure. He then described 

what the Committee was seeing. The government began by disclosing Mr. Zelman’s identity, 

what he was an expert in, and the prior cases in which he had testified on jihadist groups. It

provided the transcripts of those proceedings, and then went on in some length in the second 

paragraph to talk about Mr. Zelman’s qualifications as an expert on this subject. This is the 

second page of the disclosure. Mr. Hafer left it up for a minute, and then focused on the 

highlighted sections. Again, he said, the point is that this was a very specific and comprehensive 

disclosure with respect to what Mr. Zelman was going to testify to, beginning not just with ISIS 

history and structure, which is the beginning of this disclosure, above the first highlighted 

section, but then as you get into the highlighted section you can see the government specifically 

disclose that Mr. Zelman would identify and describe the ISIS members with whom Rahim had 

spoken and explain the fatwahs that were issued using the internet. They gave a specific 

example. Mr. Zelman would testify that Hussain was an English-speaking ISIS recruiter who 

used Twitter to encourage terrorist attacks in the United States and Europe until he was killed by 

an air strike in Syria. The second highlighted section goes into detail about specific code words 

that Mr. Zelman would testify to, including the meaning of terms like “going on vacation,” and 

“green birds,” and how those relate to the jihad and becoming a martyr. And then the disclosure 

lists other terms and the significance of certain dates. Mr. Hafer explained this case was 

included as an example of what he described as a comprehensive disclosure. There is no report, 

but there is a detailed disclosure as to what it is Mr. Zelman is going to testify to, and provision 

of prior testimony.

 Mr. Hafer observed that in the Wright case the government identified the need for an 

expert prior to indictment, but the actual expert was not identified until after. In such a national 

security case, where there was a long-term investigation, you may have an unexpected incident 

on the streets of Boston that requires the government to indict before you have done everything 

that you would do in a normal case. You might know you are going to need an ISIS expert, but 

you do not retain that person or identify that person in the grand jury. In this case, the 

government was forced to bring the case sooner than it otherwise would have because of the act 

of violence in Boston. 

The next case that Mr. Hafer discussed also arose in Boston and was referred to as the 

NECC (“New England Compounding Center”) case. It involved horrible facts, a multi-state 

outbreak of fungal meningitis among patients who had received contaminated steroid injections 

that all emanated from a compounding center in Framingham, Massachusetts. He explained that 

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the contaminated compounds went all across the country, and as a result 800 people were 

sickened. These were debilitating, and in many instances paralyzing, illnesses. Seventy-six

people died as a result of these contaminated steroids. In December of 2012, the United States 

Attorney’s Office brought a RICO case against 14 NECC employees, including the president and 

the pharmacist. In addition to second degree murder predicates, the principal RICO predicate 

was fraud, and the government’s theory of fraud turned heavily on the conditions in the lab and 

the compounding center. In other words, he explained, they charged that the NECC had so far 

departed from the standard custom and practice of high-risk compounding centers that one could 

infer fraud given the nature of the departures. There are specific standards on cleanliness and 

everything else at these types of labs, and the government realized very early it would need an 

expert to describe these standards for high risk compounding centers and compare the conditions 

that existed at the time that the steroids were contaminated to what they should have been under 

the USPF protocols (an acronym referring to the standards in high risk compounding labs). This 

was the very rare case where the government actually identified the expert that it was going to 

use prior to charging the case. The disclosure here is far shorter because these two experts on 

this USPF wrote reports summarizing all the work they had done. They worked together, and 

Professor Newton wrote an 18-page single spaced report. As part of the government’s expert 

disclosure they provided that report and the CV, and then they provided a three-page excel 

spreadsheet index with all their other publications, and all the documents and materials that these 

two experts relied on in forming their opinion that in this case the NECC’s labs departed so 

substantially from the standard and custom in high risk compounding labs.

 A member asked how long it took to write the report. Mr. Hafer did not know, but 

guessed 40-50 hours. The government typically pays such experts $300-400 per hour, at total 

expense of approximately $20,000. That would be 40-50 hours to inspect the labs and write the 

reports.

Mr. Hafer emphasized that the final case he would describe, from Los Angeles, again was 

not a garden-variety criminal case. It was an arms-export control case: the defendant had tried to 

purchase and then export American weaponry and military equipment, suppressors, ammunition, 

50 caliber rifles, and night vision goggles. He was charged under the AECA with several 

offenses. The government disclosed an expert report, a CV, and a summary. Mr. Hafer 

displayed the summary of Dr. Doherty, an expert on Soviet and Russian surface-to-air missile 

systems. Mr. Hafer characterized the report and the disclosure with respect to Mr. Doherty, as

extremely specific and detailed. On the screen he highlighted the two particular sections where 

the government disclosed that Mr. Doherty would testify regarding specific anti-aircraft missile 

systems and how they use explosive and incendiary rockets and missiles guided by systems 

designed to enable the rocket or missile to seek. He said this was a very specific disclosure 

about these specific missile systems within Dr. Doherty’s expertise. The government disclosed 

that he would testify that these systems employed devices designed to launch or guide a rocket or 

missile towards an aircraft. And then, in the second highlighted paragraph the government again 

disclosed that Dr. Doherty may testify about the acquisition of these types of systems. 

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 A member questioned the reference to things the expert “may testify to,” and asked Mr. 

Hafer to explain why that is appropriate in this context. There was a suggestion in some of the 

materials that it would be more helpful to the defense, and the defense discovery, for the 

government to know what is coming and not veer off in directions that may turn out to be 

irrelevant. 

Mr. Hafer said that the default is to disclose as much as possible without being absurd. 

The goal is not to just put pages and pages of stuff that is very unlikely to come up. Here, he 

thought (though he had not spoken to the attorneys on the case) you would put ‘may’ assuming 

we are about 45 days prior to trial, because depending on what the defense is or what the crossexamination of the government’s witnesses is, this may be an area in which expert testimony is 

useful. At the time of disclosure, 45 days prior to trial, it is unlikely that you would be able to 

state with 100% certainty that the expert would testify to something. He said this was not 

semantics as much as it is trying to be comprehensive in the scope of the disclosure, not knowing 

at the time what issues will actually be litigated at the trial. 

Mr. Hafer also noted that further in the disclosure it says the expert ‘may’ describe the 

common employment of Toyota Hilux trucks as a vehicle of choice. We would put something 

like that in there if the issue of the use of Toyota Hilux trucks by terrorists was sort of conceded 

at trial, but we wouldn’t need it if it wasn’t for trying here. And again, the way this works in 

practice with AUSAs, if you have an order of proof for the witnesses going through the exhibits, 

the exhibits that are going to come in for each witness. In anticipating defenses, you want to 

have all your bases covered, but again, you just simply do not know what the defense is going to 

be. It is very rare that you would get the defense expert report 45 days prior to trial. There are

confrontation clause and other issues. Most defense attorneys take the position that they do not 

have to disclose anything close to strategy at all. 

Mr. Hafer concluded with three final points. First, he had tried to pick representative 

samples of the types of disclosures that AUSAs strive to make to provide notice to the court, to 

provide notice to the defense council, and to voice any doubtful issues prior to trial. He said that 

is their goal. He emphasized again that there are existing mechanisms in place, short of a rule 

change or imposing a report requirement, to address inadequate disclosures. 

 Second, if the defense feels that the disclosure is inadequate, Mr. Hafer noted the defense 

has the option of filing a motion for a comprehensive disclosure. Pretrial depositions also remain 

an option. In a recent case in his district the government decided at the eleventh hour (driven by 

a late change in the AUSA trying the case), that it needed a money laundering expert, and it

disclosed this well past the 45-day deadline. The district court allowed the government to use 

the expert but gave the defense a 4-hour deposition the weekend before trial. He observed that 

late or inadequate disclosures can also be addressed by curtailing the scope of what an expert is 

allowed to testify to. In his experience, district court judges strictly enforce the limits of the 

disclosure and are very, very reluctant to admit testimony beyond the scope of the disclosure. 

And obviously there is the remedy of exclusion. 

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 Finally, referring back to Mr. Harrison’s proposal for signed expert reports, Mr. Hafer 

reiterated that there are many cases involving signed expert reports provided in discovery. But, 

he said, we have just as many cases where that requirement seems unnecessary and needlessly

costly. It would certainly slow things down if it is 45 days prior to trial, you provided the first 

signed report, then the defense changes, because you’d have to go back to your expert, get a 

revised report, and go back and forth. In the Department’s view, he said, the rule is working, 

there are existing remedies, and changing the rule to require reports in all cases taking any 

measure of discretion out of the process is, and would be, costly and inefficient. 

 A member asked Mr. Hafer what, in his view, would be required by Civil Rule 26 that is 

not already required by the Criminal Rule 16(a)(1)(G). 

 Mr. Hafer said the ISIS case would be one example. The expert witness, who had 

previously testified on ISIS’s nature and structure, was able to review materials, and talk about 

things like the magazine. The government did not pay him in that particular case to create and 

sign a report. It would impose a cost that – in his view as a practitioner – is unnecessary in many 

instances given, among other things, cases that plead prior to trial. Mr. Hafer said there are 

many cases where a report is needed. But in a case like that you can make a comprehensive 

disclosure, putting the other side on notice about the scope of the testimony without a 

requirement that will make experts a lot more expensive, without adding anything, if the 

government has met both the letter and spirit of Rule 16(a)(1)(G). 

The member asked how heavy a lift would it be to take your disclosure from criminal 

Rule 16(a)(1)(G) disclosure, which is a summary, and turn that into a report. What would have 

to be added if it were a report, other than the expert’s signature?

Mr. Hafer said it would be necessary to give the expert a lot more information about the 

litigation in the first instance than is done now, because the government typically fronts 

everything it foresees as a possible issue at trial. The disclosure will say the expert may testify to 

this, this is his background, and he may testify to that. But it would involve a lot more time with 

the experts and a lot more education of the experts regarding the procedural posture of the case, 

to satisfy both Rule 16(a)(1) and the signed report requirement. It would be a significant 

addition. 

A member asked what specifically are you concerned about in transforming the summary 

that was given in that case into a report that looks like a Rule 26(b)(2)(B) report? 

Mr. Hafer was not sure there is a particular substantive concern, instead, it isn’t clear 

what problem that would solve, given his view that the government is generally making very 

good disclosures, and when they are not, there are other remedies. He did not know what benefit 

there would be to imposing a report, undoubtedly it would be a costly requirement. 

 A member observed that Mr. Hafer said this would be a costly requirement. But if the 

Rule 16(a)(1)(G) summary looks a lot like what a Rule 26(a)(2)(B) report would look like, there 

should not be much additional cost. 

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Mr. Hafer responded that the Rule 16(a)(1)(G) summary was written by the prosecutor. 

That is the AUSAs work product. The prosecutor has a phone call with the expert, who may 

educate the prosecutor on specific things like the missile defense system, but the summary is 

really the prosecutor’s work. In contrast, a signed report must be the expert’s work. Mr. Hafer 

noted he is very reticent about spoon-feeding information to experts, when it is going to become 

their opinion. In his view, as a practical matter, it would be costly to require the expert to 

prepare the report. It is a big difference in terms of whose work product it is. 

 Noting that Mr. Hafer had said he was not talking about a DEA agent’s testimony about 

gang language, a member asked him if it was his view that a disclosure similar to the one you 

displayed in the Wright case would be feasible for a DEA agent’s expert testimony on gangs. It

presents the expert’s prior experience with this, former testimony, what the person will say and 

so forth. The follow up question was: is that what you do? 

 Mr. Hafer responded, yes. The first question is: do we take the position that that’s 

permissible expert testimony, for a DEA agent to testify in that capacity to drug dealers’ use of 

code words and that sort of thing. We do with a hedge. The government typically says it does 

not necessarily concede that this is expert testimony – because there are some cases that suggest 

it is lay opinion – but we disclose it anyway. And yes, the goal is to make those disclosures 

specific so if it is an organization that is using particular phrases for kilos and particular phrases 

for fentanyl versus heroin and that sort of thing those should go into the disclosure. The AUSA 

is sort of following the guidance and practice. He disclosed the agent’s background, and the 

number of cases and investigations they have worked. Then you would go into: in this particular 

case, he or she would testify to and list the references to the stash house and the code for 

particular drugs and that sort of thing. With the hedge usually, and he thought in the First Circuit 

the government does not concede that that’s FRE 702. It says, in essence, it might be, and in 

case it is, here is the disclosure. We also have several district court judges who do not like to 

qualify experts in front of the jury. We still have to lay the foundation, and if the judge 

determines that we laid the proper foundation, we can elicit the opinion testimony. But there is 

sort of a recent reticence in our district to have the judge make some type of finding in front of 

the jury that the individual is an expert. They certainly will not do it for the DEA witness. You 

have to lay the foundation, then you can move on and ask the appropriate questions. But it will 

not be with a judicial blessing that that agent is an expert. That would even go in a recent capital 

case where we had all sorts of forensic psychiatrists and other things on either side the judge 

would not find that the person was an expert in front of the jury. 

A member asked whether there is anything in the department’s policies that requires the 

disclosure of prior testimony of witnesses, specifically your DEA agent for example who may 

have testified in 15 court cases concerning the use of code words. 

Mr. Hafer described an ongoing conversation about whether that counts as Jencks. He 

said he would disclose, and would follow up with the agent. If he was aware that the agent had 

testified similarly in other federal cases, he would disclose that. 

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 In response to the question whether that meant there is no uniform policy throughout the 

United States, Mr. Hafer responded that he did not think disclosure of the DEA agent as an 

expert is required by Department policy, though he was not certain. Assuming it is not Brady, if 

it is Brady it is obviously required that we turn it over. If there is some type of exculpatory 

material in the prior testimony, then it is disclosed. 

 Following up, a member observed that assumes that you were actually reading all of 

those 15 prior testimonies to determine if it’s Brady. So what extra cost is there to identify prior 

testimony that an agent has given as an expert? What extra costs or steps would be required to 

do that? 

 Mr. Hafer thought several steps would be required. You have to have a conversation 

with the agent and obviously trust and believe in their credibility. You ask the agent for a list of 

all the cases he or she has testified in, in a similar manner. The case that he referred to with the 

money laundering expert, we were aware that he had testified three or four times as a money 

laundering expert. We were going to use that same model, when we learned [that he was?] an 

IRS agent, we pulled the testimony. Whether something is Jenks turns on whether it is related. 

He does not think it is generally a good practice to dance on the head of that pin. The extra cost, 

I think would just simply be that the AUSA would have to both consult with the expert that he’s 

putting on and have to find some sort of PACER search, and there are Westlaw and Lexis expert

databases where you can run names and do stuff like that as a double check. He thought most 

federal agents know when they have offered that type of testimony, so you probably capture the 

vast, vast, vast majority by asking them. 

 A member thanked Mr. Hafer for his presentation and confirmed with Mr. Hafer that in 

the NECC case the reports were prepared by the expert him or herself. But in the other two 

examples rather than have expert reports, basically you have [unintelligible] reports. Assuming 

that’s so, what accounts for the difference? 

 Mr. Hafer responded that the practical thing is cost, though he did not want to make it 

seem like that is absolutely a practical decision. If the expert has to write a report, the goal post 

is that it costs $15,000- 20,000. Beyond that, it really turns on whether it is helpful. In the 

NECC case it was clearly necessary and was going to be very deep in the weeds. So the AUSA 

made a determination that they should write a report and lay all this out. He thought that the 

ISIS thing is a little more common, in terms of the government does national security cases fairly 

regularly providing some type of background and context on terrorist groups. It is a little more 

common, so he actually talked to the AUSA in that case before he came down here and she said, 

“It never even entered my mind to ask him to write a report, I didn’t think that we needed one, I 

made the disclosure, I passed his prior testimony, I turned all that over.” So the discussion is 

framed now as whether we should require the report or default to Rule 16(a)(1)(G). And day-today confronting this, it is not really a seminal decision in the case, should I get a report here, or

should I not get a report here. It evolves much more organically based on the facts of what it is 

the expert is going to opine on or provide. 

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A member commented that there is some interaction with the expert just for the 

prosecutor to be able to write the report that you’re seeing in the other cases, and Mr. Hafer 

agreed. So the member asked what change is involved for experts to just write out what seems to 

be a relatively simple report in those cases, as opposed to the lawyer doing so.

Mr. Hafer said it is really a time thing. The Department does not have a principled 

objection to signed expert reports. There is a place for them in a lot of instances. 

 Members pressed for a sense of how much more time it would take to prepare an expert 

report in for example, the case of the anti-aircraft missiles. You are just reciting some very basic 

points about the nature of those missile systems. 

Mr. Hafer said that the expert in that case did prepare a report and summary. The only 

cases he described that did not include reports were Zelin and ISIS. The ISIS expert Doughty 

actually wrote a report analyzing the specific military equipment that particular defendant had 

tried to get out of the country. So it is the time, how much work would it have been for Zelin to 

write a report. Probably somewhere between 10 and 20 hours, as opposed to several. 

A member expressed surprise, asking whether it is really a 10-hour project to just to 

recite some of those terms and say I’m going to talk about some guy who got killed in an 

airstrike and how he recruited people, and so forth. 

Mr. Hafer said experts will not form an opinion until they have reviewed the actual 

evidence in the case even if it is consistent with evidence they have seen in a lot of cases. Once 

they look at what was taken from the search warrant, if there are intercepted phone calls, they’ll 

want to listen to the phone calls so that they can talk about those particular terms in the context 

of that case. So there is lead time. Really it is reviewing the discovery, and we don’t want to put 

someone on the witness stand with his pedigree and then we ask well did you listen to any of the 

recorded phone calls in this case, and have him say no. So that’s less so than the actual drafting 

is the review of the discovery. 

A member pressed Mr. Hafer, noting that he had said he could not possibly put an expert 

on unless he did all of this preparation that the witness is going to do anyhow. So it is just when 

he writes the report, and whether the defense gets it.

Mr. Hafer said given how many criminal cases we have it is really a matter of where you 

post the requirements. Does it make sense that early in the litigation given the very, very high 

likelihood there is going to be a plea (and the expert is not going to testify) to require that level 

of analysis? But yes, point very well taken ultimately. But I think that is where the nature of 

criminal cases and the percentage of resolutions to plea deals need to factor into this. 

The member said it seems there is some real value to having the expert look at the record 

and confirming that he or she is actually going to say things that the lawyers are assuming he or 

she would say. The other question is at what point are you making these decisions about expert 

reports as opposed to lawyer reports, and I gather it is tied to whether the case is going to trial. 

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Mr. Hafer said, that is a very big part of it. For example, in the NECC case it was so 

clear to the AUSA that just to get to probable cause on their fraud theory, they needed expert 

testimony on the standard of care in these labs. So that was a very early determination that they 

needed a report. In something like the ISIS case, after indictment for example, within the first 

28-30 days before there would be an expert disclosure requirement, if there are conversations 

and its clear the defendant is looking to plead guilty, then in the government’s view it would not 

be a good use of its resources, taxpayer resources. It is perhaps unsatisfying, but it depends on 

the case. 

 Judge Campbell observed that Mr. Goldsmith had addressed the Department’s policies on 

disclosure forensic expert information, and Mr. Hafer had described detailed disclosures where 

there is a retained expert in a complex case. But in Judge Campbell’s experience, the far more 

common expert in a criminal case is the agent on the language or the IRS employee who is 

describing IRS procedures and why, in a tax fraud case, something was misleading to the IRS. Is 

there any department policy to the level of detail that those kinds of experts, or the AUSAs using 

them, must include in the Rule 16 disclosure? 

 Mr. Hafer responded that he did not think that was in the 2017 Memo, and Mr. 

Wroblewski responded that the 2017 memo was specifically addressed to forensic experts. Mr. 

Hafer noted that the case law deals with Rule 16, and what does it mean to have a basis, or 

opinions, so there’s plenty of case law about these reports, and how extensive they have to be. 

He wished it could be as simple as writing 2-3 single space pages and the expert signs them. But 

there is a lot of case law holding that is not an acceptable Rule 26 report in many, many 

circumstances. So the short answer is that he did not think there is any guidance beyond the 

rules themselves and the case law about the rules, about how detailed it has to be. He reminded 

the Committee that Rule 16 says you have to lay out the opinions and the basis and 

methodology anyway, and there is case law surrounding that. 

Mr. Hafer added that the guidance we get in Massachusetts is that increasingly specific

disclosure is better than a less specific one. As he read Mr. Harrison’s proposal, it would only 

apply to the team, which he thought would include the DEA/IRS agent types. So he did not 

focus on that. But what we do and what we encourage is to make it as specific, and to tailor to 

the case, as much as possible. 

 Judge Molloy thanked Mr. Hafer for the presentation, and broke for lunch. After a lunch 

break, the Department presentations turned to forensics, beginning with a short discussion by 

Ted Hunt, and then an FBI presentation on a forensic examination and about what is in a case 

file. 

Mr. Hunt introduced himself as Senior Advisor on Forensic Science at the Department of 

Justice, since his appointment by the Attorney General in April of 2017. He relocated from 

Kansas City where he was a prosecuting attorney for about 26 years, focusing on the 

investigative use, disclosure, and presentation of forensic science. He was also a member of the 

National Commission on Forensic Science that concluded in April of 2017. He was tasked by 

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the Attorney General with reviewing the Department’s forensic practices, policies, and what 

needed to happen to improve the science and quality assurance measures to ensure things are 

done the right way all the time. He reports to the DAG and, like Andrew Goldsmith, he has 

direct access to Department leadership. 

 Mr. Hunt said that DAG Rosenstein is very involved in this topic of forensic science and 

improving forensic science. Mr. Hunt stressed the Department’s total commitment to the 

integrity of what we do. He said the DAG emphasizes to his staff every day: “to get it right and 

to do whatever it takes to get it right.” Mr. Hunt’s colleague Kira Antell is Senior Counsel, 

Office of Legal Policy, and most of her portfolio is with forensic science. So in essence the 

Department has two people (Hunt and Antell) devoted full time to the improvement and 

advancement of forensic science, including transparency. Hunt’s job involves interacting with 

leadership and meeting with stakeholders in many different realms to work on internal 

departmental policies, practices, and procedures, and to constantly look for ways to increase the 

reliability of what the Department does. He met with DAG Rosenstein at least once a week 

about forensics, and there is an in-depth meeting every month about forensics. Hunt also leads a 

standing departmental working group on forensic science, which is a high-level group of people 

who are laboratory heads or laboratory system heads – the very top of the food chain at these 

laboratory systems within the various component agencies like the FBI, DEA, ATF, Criminal 

Division, and others. They are at the table twice a month, hammering through issues some of 

which really go down pretty far into the weeds. 

 Mr. Hunt said that the Department believes that the best way to prevent potential mishaps 

with forensic science is to have a robust quality assurance system and to improve measures in 

that field. Public dissemination has also been a focus, as well as the continual promotion and 

advancement of the Department’s methods. 

The Department’s techniques and quality assurance systems are particularly important. 

Mr. Hunt emphasized five key DOJ is doing right now to improve forensic science. 

First, the Department is discontinuing the use of the phrase “reasonable degree of 

scientific certainty,” a topic that was originally brought up at the National Commission on 

Forensic Science. DAG Yates issued a memo directing the Department’s prosecutors and 

laboratory examiners not to use that phrase unless required to do so by a part of a judge’s ruling 

or a legal precedent. This began in a previous administration and has been continued by the 

current administration. The policy is about two years old now. Unless directed otherwise, the 

Department does not use that terminology. 

Mr. Hunt’s second topic was the creation of something called uniform language for 

testimony and reports. He noted that on the Department website there is a page (displayed 

onscreen), and a menu bar at the top of the page. You can click and find various document. The

page that was just displayed showed the uniform language for testimony and reports. These are 

the Department’s quality assurance measures for forensic disciplines practiced in their 

laboratories. And, basically they amount to this. This is mandatory terminology used by 

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examiners within and across labs for expert testimony and reports. It is present in both the report 

itself and in the subsequent testimony should it occur. There is uniform language for those terms 

and statements of conclusions. Each uniform language document covers a different discipline. 

There are 13 published and online, each of which has several elements. 

First, there is a list of approved conclusions that the examiner may use to articulate his or 

her opinion. Second, there is a definition of that term. It is very difficult to encapsulate in a 

single term and the richness and the fullness of what an examiner is trying to say. So there is a 

definition of that term. Third, there is a concise statement of the scientific or technical basis for 

the conclusion. And fourth, there is a list of qualifications and limitations for the approved 

conclusions and statements for that type of examination. The qualifications and limitations 

element relates to things an expert should say to round off or give context to the opinion, and 

things that an expert should not say or should not go too far in overstating. This is geared to 

trying to appropriately calibrate the probative value of that statement. This information is 

available online and in discovery. It is turned over once these documents are constructed, they 

are approved and they are published. 

 The Department now has 13 qualifications and limitations, which will go out in 

discovery. They have to be appended to the report, incorporated by reference, or included in 

every case file so that the prosecutor or the defense attorney and the judge will all see with this 

particular type of analysis or this method, these are the things that I’m relying on, and here’s 

what this means, here’s what I’m saying in terms of a single word or phrase, and here’s a fuller 

statement, and here is the basis for that. So that’s going to be included in discovery. They are 

also available online at the top of the page. You can click on uniform language for testimony 

reports and look at the 13 that have already been published. 

 Mr. Hunt’s third topic was the creation of a testimony monitoring program. Before Mr. 

Hunt joined the Department, the DAG announced there would be a testimony monitoring 

program. This program will be a routine way that examiners and digital analysis experts will 

have their testimony observed and reviewed by a colleague. Mr. Hunt could not say 

categorically that the Department would monitor every expert’s testimony, but the goal is to get 

as many as possible. This going to be a substantive review. The criteria that the Department is

looking at have to do with things like did you follow the laboratory policies and procedures that 

are mandatory for the evaluation of evidence? Did you correctly state and not oversell the basis 

for your opinion? Did you add qualifications to your opinions, so that you properly stated the 

probative value, neither over nor underselling, but rather hitting the sweet spot, getting it just 

right? And did you follow the approved language for testimony and reports, if there is a 

document applicable. This is going to be something that is routinely done. It is another quality 

assurance measure so that we catch any missteps before this becomes a systemic problem. 

A member asked whether this has been implemented. 

Mr. Hunt confirmed that it has been. The new framework for testimony monitoring is 

publicly available on this website as well. You can go to the document online. And this is a 

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framework for the different agencies and components with laboratory systems and digital 

analysis entities. They are going to create – some of them have already created – their own 

internal policies to fit their particular situation in-house, their laboratory ecology if you will. 

They are using these criteria here as a guideline. And there are a few mandatory components (“a 

few shalls”) that need to be incorporated into those individual policies. So again, this is a 

substantive review but it is not a cursory review or a request that the litigants send in their 

impressions about how they did. They do that as well, but this is a significant change in that the 

Department is trying to get up to 100% compliance with a testimony review by an in-person 

observation or a transcript review. This is going to be done, either in real time, or within 30 

days, as fast as we can get the transcript and review it in a substantive way with that examiner to 

make sure they got it right in that case. The FBI has already preceded the mandatory program 

that came from the DAG’s office. They started testimony monitoring before that became 

required, and they have had great success. Some minor misstatements were caught and reported 

out to both the prosecutor and defense in one or two cases. It was a defense attorney who called 

one of our witnesses, and the parties were notified as well as the court in those cases. So, it is

already paid dividends and we are catching things quickly. Mr. Hunt did not think any of the 

misstatements made any difference in any of those cases, but again it gets back to the 

Department’s commitment to make sure there is not a substantive problem when we’re reporting 

that out and we’re getting it right. And so we’re really excited about this program, it is being 

built up now. He did not have any data to report back about it yet. With the ULTRs, the uniform 

language, there will be feedback in the next year as we gather information. But he thinks this is 

a really good improvement in quality assurance and real-time catching of issues or 

misstatements. 

 In response to a question, Mr. Hunt said that these documents will be provided in 

discovery in every case, depending on what the specialty is. When asked if the production will 

be paper or digital, Mr. Hunt said that the labs will have a choice on format of disclosure. 

obviously if you know about it, it is online and publicly available. The labs can make reference 

to it, incorporate it by reference, print it off in paper, or dump it onto a disc that is disclosed in 

discovery, in any event it is going to be there. We are not dictating how it will be disclosed, just 

that it be disclosed with the balance of the discovery. So we think this is a good idea because it’s

going to make sure that testimony reports are consistent with those laboratory policies that are 

mandatory, again a proper qualification not exceeding the scientific and epistemic limitations of 

the discipline and the conformity with our uniform language documents. 

 Mr. Hunt emphasized the online posting of internal laboratory documents at all of our 

labs across the Department. These have been available as part of discovery for a good while, but 

recently all our components labs have completed the process of posting these internal documents 

online. And you can go again to the menu, up there and we have a link to the quality 

management system documents for the FBI, DEA, and ATF. So, if a litigant, a judge, or any 

member of the public chooses to do so, they can go to the internet, click on these documents and 

go through them in detail and read step-by-step how the evidence in each case was processed, the 

criteria by which the expert’s conclusions in that case were formulated and expressed – it is all 

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there. These are the same documents that our laboratory folks, our examiners, have to follow, 

that they get trained to follow, and they are there for anybody to read. Again, available at 

justice.gov/forensics. 

 Mr. Hunt emphasized that all of the Department’s quality assurance measures – lab 

policies, protocols, procedures, standard operating procedures – are online. Before any 

methodology goes online it has to be scientifically validated. Summaries of all those reports are 

online for any litigant to read, to cross examine on, and to use however they choose. They are 

assessed using procedures based on international standards. He noted that there is an 

international standard for calibration and testing laboratories whether it is for forensic labs, labs 

that test groundwater, do clinical work, or diagnose diseases. All testing laboratories have to 

follow a particular document. If the lab is accredited, like all of the Department’s labs, they must 

follow ISO (International Organization for Standardization is the acronym) ISO-17025. 

The Department’s laboratories follow ISO-17025 just like any other laboratory does and 

they get assessed to the requirements of those international standards at regular intervals. What 

they do is not only in compliance with what they believe is appropriate internally but is also 

based on international standards for testing laboratories, whatever the subject matter may be. 

Mr. Hunt emphasized that it is believed more than 90% of forensic laboratories in the country are 

now accredited. In the last 10 years, tremendous progress has been made, and the Department is 

approaching the point of getting the vast majority of labs accredited in the United States. He 

noted that all documents are available online for anybody to look at, read, download, or use 

during cross examination on the basis for a conclusion. He explained that these are not case 

specific bases because they are standard operating procedures (“SOPs”), but if anyone wants to 

look at the steps an expert had to take to reach a conclusion in a particular case, it’s all spelled 

out. 

The Department sees several benefits from these postings. First, it is consistent with the 

scientific value of transparency, which is very important in science because if you say that you 

can prove something, you have to show us, and another scientist will take what you show and 

kick the tires to see if it withstands their scrutiny. Second, it is enhancing the efficiencies of the 

Department’s discovery and disclosure obligations. The information is freely available online, 

and anyone could use it case-to-case-to-case. They can go back, create a new copy, and put it in 

a case file for the current case. Mr. Hunt noted that this is somewhat duplicative because the 

quality assurance SOPs that were in place at the time that the test occurred are going to be 

disclosed in discovery anyway. Third, the Department believes that sharing what it deems are 

high quality policies and procedures with other labs is a very good thing for them; they can look 

and assess our standards against what they use. The hope is that this will raise the bar. The SOPs 

are also there for academics, lawyers, and judges to peruse, critique, and read all the way 

through. 

Finally, Mr. Hunt turned to ongoing research in the field of forensic science within the 

Department. He reiterated that quality assurance measures are the best way to try to prevent any 

missteps, along with accountability that comes with testimonial review and the requirements to 

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follow uniform language. Hand in glove with that is to make sure that the statements that we are 

making on the witness stand are consistent with good science. 

 Mr. Hunt described current research in the field of forensic science, specifically at the 

FBI laboratory. The FBI lab is currently involved in the planning and execution of a number of 

important studies. These involve commonly used feature comparison methods. They are largescale, discipline wide studies. They are both internal and external to the Department. The 

Department is not just testing in house, it will be sending tests out to state and local labs, 

anywhere across the country, to get a larger population. Having more people involved makes the 

study more reliable. 

 The studies will involve hundreds of examiners, thousands of samples, and tens of 

thousands of collective decisions. There will be an open experimental design, and the test taker 

will not know if the answer is included somewhere in that set. The set will be biased hard in 

order to identify the baseline for when experts start to fail and where they get it right most of the 

time. To identify these outer limits, experts will be given really hard comparisons. This will be 

a multi-year project that will generate a tremendous amount of data that is all going to be 

collated and published in publicly available, leading scientific journals. 

 These types of studies take a long, long time to plan for, to prepare, to execute, and then 

to crunch the data. But this is all in process, and not only inside the Department; there is an 

extraordinary amount of on-going NIJ funded research outside the Department. Those studies 

have provided a better focus and understanding of where forensics gets it right and where it gets 

it wrong compared to 10 years ago. Mr. Hunt noted that the Department has advanced 

enormously and cautioned that sometimes people read things that are very dated; many of the 

cases where bad things happened are a decade or more old. He also cautioned against using 

those cases as the benchmark against which forensic science is judged, because a lot has changed

since then. 

In conclusion, the Department’s current focus is coordination and collaboration with all 

of the stakeholders, state, local, tribal, and on both sides of the bench and across the table. On a 

regular basis, the Department talks to defense attorneys, innocence folks, and brings in all the 

stakeholders who have something to say, such as academics and researchers, to get their input. It 

is also trying to increase the capacity of forensic services so that they can promptly and properly 

analyze evidence and get answers out to defendants, investigators, and prosecutors in a timely 

manner, and to continually enhance the quality, reliability, and transparency of what is being 

done inside the Department. 

Professor Beale commented that this is all very interesting and encouraging, but she was 

puzzled about how it related to the National Commission headed by Judge Rakoff, who wrote to 

the Committee suggesting an amendment. She heard him make a presentation last summer, and 

he said that the Commission had asked to be extended. It had reached the end of its two-year 

period and asked to be extended to continue its work. Judge Rakoff said that request was

rejected. Given the extensive outreach and effort to move forward, why was the Commission not 

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a useful vehicle, particularly since it had proposed approaches that were adopted by this 

administration? 

 Mr. Hunt noted that he was not yet at the Department when the decision was made not to 

extend the Commission, but he provided his perspective as a member of the Commission. The 

Commission met four times a year, and moved at an extraordinarily slow pace. He thought it 

was very inefficient in the way that the work products were developed. A lot of what concerned 

him as a commissioner was that the underlying bases for many recommendations were highly 

controversial. Though members of the Commission agreed much of the time with the 

recommendations, there were lots of disagreements about the bases for those recommendations 

and what justified them. So, he thought that was a part of the process that was very inefficient, a 

very, very slow-moving process. 

 In contrast, the Department has the flexibility to bring people in at any time. They do not 

have to wait for four months to do things and need not make recommendations that the attorney 

general has to consider. Mr. Hunt emphasized his direct access to leadership and direct access to 

the community. He tries to get input from lots of different sources both written and expertise 

that he has personal access to, and to weigh it all and come up with the best products. He noted, 

the Commission had some strengths, but was terribly inefficient and slow moving. The 

Department can now address things more quickly, more efficiently and effectively with the 

mechanisms they have in place now. 

 Professor King asked what percentage of forensic experts who testify in federal criminal

cases are from unaccredited state labs. 

 Mr. Hunt did not know, but guessed that now, in 2018, it is very few. If they are from a 

laboratory, he thinks we are north of 90% of all laboratories being accredited now. That gap is 

going to get further closed as time goes on, because the Department has a directive to use 

accredited forensic laboratories whenever possible. That’s the Department’s goal. Everything in 

house is accredited that we use in terms of a traditional forensic laboratory. So we have those 

layers and layers and layers of quality control before anything ever goes out from the report. 

 Professor King asked whether there are specific types of science or states that have a 

higher percentage of unaccredited labs. 

 Mr. Hunt identified digital evidence, relatively new on the scene, as an area where things 

are having to catch up. Digital evidence was traditionally something that was in an investigative 

unit of a police department. It was not a traditional laboratory setting, and there is a lot of work 

underway about considering the right fit for an accreditation scheme. If you have a testing 

calibration lab, you take those requirements and overlay that on a digital analysis entity, it is not 

a good fit. But a number of organizations are now working on this. One is called the scientific

working group on digital evidence. Another is the organization of scientific areas committees, 

which has a digital evidence subcommittee. They are actively looking at trying to do this. There 

is a lot of work that is underway. It is his impression that digital has a lot of catching up to do 

because they are not a traditional forensic discipline.

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 The next Department speaker was Erich Smith, who is a firearms and tool marks 

examiner at the FBI laboratory. He noted that usually he appeared briefly in the courtroom as a 

witness, and was pleased to have a chance to talk to the committee. 

He wanted to return to Mr. Hunt’s comments about the quality assurance. As far as 

review of testimony, he said I am the technical leader in my unit, so it is my responsibility to 

look at all the transcripts that come in. I am checking them for accuracy, and whether they are 

within the confines of the science. Within the laboratory manual operation system, there is a 

document that spells it out exactly what I am to do, and how to record that. It is all maintained 

for a long period of time through the Department’s accreditation process as well. 

Mr. Smith walked the Committee through the case file. He noted that he is often asked 

what the difference is between firearms and tool marks, which seem like two different things. 

But a firearm is just a specialized tool to create work. So when we are looking at bullets or 

cartridge cases, we are looking at the tool marks that are left behind in the production of that 

firearm to try to identify. This is typically what I am going to see at the laboratory for 

communication. We call them electronic communications in the FBI, but it could come from the 

state laboratory or state agency that is sent to the FBI lab for analysis. Basically, we want to 

examine these items, and they give us some information about the case as well. Looking at the 

material displayed on the screen, he noted P1700006 was a laboratory number that’s been 

assigned to it, and then we have some information about who sent it in as well. There will be 

some synopsis about the case, a generic synopsis of what’s going on, where the evidence was 

collected, maybe something about the case itself, and then typically at the end the contributor 

will have a request to examine the items for their forensic value. That initiates it in the lab. We 

have a separate unit that is going to take in the evidence, and everything gets a unique identifier. 

Item 1 through whatever. They are introduced into the chain of custody, so they are tracked 

continuously in the lab. There will be some communication with the contributor to say I 

received the evidence in this case. This is the report that is generated at the end. you can see in 

this particular case five cartridge cases were submitted. There was a pistol, that is the item 6. 

And then the secondary evidence is evidence that was generated in house. We test fired this gun 

and produced samples. 

The first thing you get is the result of the examination. What did the examiner conclude? 

In this particular case, the examiner identified the gun, said it functioned properly, and he was 

able to identify three cartridge cases as having been fired from that particular gun. The other two

cartridge cases were identified as having been fired from a separate gun. In this case, although 

he has one gun present, the evidence represents two different guns. 

 Laboratory reports contain a lot of information because the examiner may not be in the 

courtroom when the trial happens. The Department felt it was necessary to have information on 

the methods and limitations included in the report. For each exam that was conducted in this 

case, the report describes the firearm’s function, and explains what was done in that case. The 

report then will move through each exam. 

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 NCIC stands for the National Criminal Information Center. This is a database search to 

see if the gun was stolen, then we’re going to talk about the cartridge case in that examination, 

how they were compared and how they were identified or not identified to a particular firearm. 

Then we are going to do another national database search which is called the National Integrated 

Ballistic Information Network. Next, we are going to see if there are any open cases out there 

that are unsolved that these guns might have been involved with and we are going to search that. 

Then we are going to spell out the limitations of each one of these examinations. 

A member noted the Committee was just talking about uniform language in the reporting 

as well as testimony. There is language in this report on “identifying.” The member asked for 

clarification, noting an understanding with forensics that an examiner could say it is consistent or 

it is similar to, but “identifying” is like excluding evidence absolutely from this gun. Is that one 

of the problems in terms of testimony? 

Mr. Smith said if he were testifying he would state that the cartridge cases were identified 

as having been fired from this gun. Now in the straight context of that sentence, yes, you would 

attribute that as being absolute, but I would have to give context that that is based on my 

certitude of practical certainty based on the sureness of my opinion because this is an opinionbased discipline. Based on all of the training and all of the validation work and science that 

precedes it, there is an understanding that an examiner can identify a particular item to a 

common source by looking at individual characteristics. It would be improper to say that it was 

identified as having been fired in that gun. But the hearer of that information be it the jury needs 

to understand what the certitude of that decision is. 

 There are two stages of the examination: class characteristics and then the individual 

characteristics. There are standard forms within the Department’s quality system that outline the 

minimal things that the examiner has to record. It is imperative so that if I am a technical 

reviewer; I can look at these documents and I can understand the process and what occurred in 

the examination. If it is sent out for review by another entity, they will understand what I was 

doing and how I was examining these items. On this particular one, we have the firearm. This 

whole sheet talks about Item 6. The class characteristics, that is something that is predetermined 

before manufacturing. In this case, the company, Ruger, decided to make a 9mm pistol. 

Accordingly, I have determined the class. I also know the diameter of the bullet, and the length 

of the cartridge case. Of all pistols, I am only talking about 9mm. Along the way, the examiner 

test fired the gun; so if you look under examinations and rifling, it tells you 6 right. Ruger 

decided that when they make this barrel, they will put 6 lands and grooves inside the barrel. And 

that is specific to that brand of manufacturer. If I had a whole array of guns here, I can now 

whittle it down to being Ruger by class characteristics. That is before I even get to looking at the 

individual weapon. So the examiner is required to record all this information up front. It is at 

this level where I can make my first decision. If there is a divergence in class characteristics, the 

pistol is 10mm, and this is 9mm – that is an elimination. There is a difference in class 

characteristics. 

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 This just represents the record for the NCIC search. Was this gun stolen? It was not 

stolen. It came from the Department’s collection, so I know it was not stolen. Next, he 

discussed the cartridge cases. These were submitted to the examiner to determine, were they 

fired from this particular firearm. And you can see the tech review that took place at the time. 

So the examiner, he recorded the shape of the firing pin, which is hemispherical. Think of a 

bowl. If I took a bowl and dropped it into some sand, it would make a hemispherical shape. If it 

was a cylinder and I dropped it in, it would make a flat bottom. So that’s a class characteristic. 

If there was a difference there, I could eliminate. But in this situation, all the cartridge cases are 

hemispherical, they have the same class characteristics. In tech review, which Smith did for this 

case, the examiner was asked to make some corrections so part of the Department’s quality 

assurance. He has to strike it out. We have to have an awareness about what he corrected, and 

he initialed it as well. 

This is a spread sheet of all the class characteristics for each one of the cartridge cases. 

So we can understand the brand, the Remington federal, the material the case is made from, 

some are nickel some are brass some are copper, the firing pin shape. So he has consistency with 

the firing pin shape, he cannot eliminate, but then he can eliminate right here. The breach face 

marks. The breach face is that part of the firearm that supports the cartridge case when it’s fired 

and when that tool cuts it, if it moves east to west, it’s going to make parallel lines. In this 

situation, this tool was spinning and it made arching lines. At this point he could eliminate this 

cartridge case as having been fired from these two. 

 Mr. Smith commented that the documents he had provided are very typical of what the 

Department turns over in discovery. This is the NIBIN [National Integrated Ballistic 

Information Network] report, so he is put into NIBIN “Item 1: Cartridge Case.” He wants to see 

if there is a gun out there, or a shooting out there, that this cartridge case may have been involved 

with. And with this system, you have to think of it as a Google search. You put an image in, 

you ping it against the database, and it gives you a list of choices. And in this case, the examiner 

has to sit at a terminal that is got tile screens and starts looking at the different images to see if 

any of these might match to his case. If they do, then the evidence must be brought into the lab 

and we do a microscopic comparison at that point, if we recognize anything. 

 A member asked do you do this when you do not know the firearm that the cartridge is 

from, or do you do it every time? 

 Mr. Smith said they do it every time with a gun, because we want to know, “was this gun 

involved in any other shooting?” In this case he has two cartridge cases that identify as having 

come from another gun. So, he needs to know is there another gun still out there involved in 

another shooting. So it depends on the examination if you are going to put all of them or just a 

select few into the database. Further, there is a lot of detail because of putting three items in 

there. And he searched different regions of the country. The database is partitioned based on 

regions, so if the contributor is in Milwaukee you’re going to search Milwaukee but you’re also 

going to search the FBI database to make sure that it hasn’t been put into that database as well. 

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 So everything that we talked about first was about the level one, the class characteristics. 

And you can see that there were two cartridge cases that had similar class characteristics. So at 

this point we are going to move to level two, which is the actual the comparison of the individual 

characteristics.

Mr. Smith explained that individual characteristics are formed when the tool is actually 

cutting the metal. The metal is going to break randomly, fracture, crack, and in the process the 

tool that is cutting is under a constant state of wear. It is changing, and debris that is falling 

away is interrupting, creating more individual characteristics. So now this is where we move to 

the comparison microscope, which is an instrument that allows us to look at two specimens side 

by side. And we are going to look at what may appear as small scratches, small impressions, and 

see if they repeat between the pistol and the test-fired cartridges.

 And so, Mr. Smith continued, this is Cartridge Case 1, 3, and 4 that he is identified as 

having been fired from the pistol. This is tough to look at because it is been photographed, 

scanned, and you have lost a lot of the detail. But what does stand out is the firing pin 

impression right here. That defect is on the firing pin. It has a chip, a notch in it, and it is

reproduced. There is a dividing line right here. Item 3 is right here, and a test fire from the Item 

6 pistol is on this side. He is comparing the two firing pin impressions and he is trying to 

illustrate this defect that repeated between the two. Over here, this particular firearm has a 

dropping breech. 

Part of the quality control system, Mr. Smith explained, is that the examiner must 

indicate the areas that he used for his identification. What was it that he compared? For 

example, these are cartridge cases so think of them as a small little can, and the powder’s going 

to be inside. Well, the breech face is going to hit one end, and that is what you are seeing right 

here. And you have the firing pin impression. And then you have chamber marks. So you’ve 

got one, two, three, four independent surfaces that were manufactured independently that he can 

use for identification. This just represents a bookmark of what he did in his examination. It does 

not share the totality of everything that he did.

The quality system also requires verification that all identifications include some 

eliminations. And in this block here, you can see this person signed to verify that these are the 

items he looked at, and this is the date he verified that the decision was made. So this is the 

second examiner’s agreement with the first examiner’s opinion. 

A member asked for clarification. This is not Mr. Smith’s signature as the reviewer? There 

were three then, two initially and then you reviewed? Mr. Smith answered affirmatively, and 

continued. You have the verifier, who is just verifying the opinion. And then the packet’s 

turned over. In this case, it was turned over to Mr. Smith to do the technical review. Did this 

person follow all the proper procedures? Did they document everything correctly? That is my 

purpose. That goes on the report as the technical reviewer. Finally, there is an administrative 

reviewer that is just going to read the report and look at the information to make sure the report 

reads accurately. So essentially there’s three checks along the way.

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 In response to the question whether everything being shown will be in the file that is

going to be disclosed to the defense, Mr. Smith responded that was correct. They will see 

everything, who did it, at what time. It is all turned over. 

 Mr. Smith then continued, noting the other two cartridge cases with the gun that is not 

present. He is identified these as well. This is the firing pin impression. Item 2 and Item 

5...here’s the center line and he is homing on this defect in the firing pin as well. We cannot see 

the shearing here that is represented, but he also includes the magnification and what he used for 

making his decision. And here is the verifier on this one as well. 

 Mr. Smith reminded the Committee that they began talking about the chart, and were 

pointing out the examiner can eliminate here. There is a difference in class characteristics. 

Well, that is what he is trying to illustrate: that these two cartridge cases were excluded as having 

been fired from the Item 6 pistol. 

Next, Mr. Smith pointed out the test fire from the pistol. There is that defect, and then 

here is the other two cartridge cases. If you look closely...see these lines right here? Those are 

the arcing lines. Those represent the milling tool that cut this surface. They are different than 

what is on this side over here. These actually were cut with a broaching tool that made parallel 

lines. 

 Mr. Smith drew the Committee’s attention to a series of other forms. The secondary 

evidence form records the number of times, or the quantity of test fires, that he made in-house. 

And these become evidence and they are returned to the contributor. The tech and administrative 

review forms include certain things that we want to make the reviewers pay attention to when 

they are doing the review. In this case, you either affirm, or point out things that might be 

incorrect. In this situation, I had some issues with the report language, how he was phrasing 

things, I sent it back to him, he changed them, and it is recorded. At the bottom of this there is

the administrative reviewer. Their information is recorded as well.

This is the laboratory information management system. So back at the front end when 

the evidence came into the lab, this initiated the forms that fall under the case record report. So, 

in this particular case, we are going to see who did the review, and who did the administrative 

review at the end. 

Mr. Smith pointed out the listing of the items that were produced. Here is the chain of 

custody. You can see where it is initiated, a description of what the items might be, how the 

packaging was. And when there’s a transfer, even if I’m finished for the night and I need to put 

it away, there’s storage containers I can put them in and I can designate it on the chain of custody 

as well. So at the end, when we turn this over in discovery, the defense can see who handled it, 

at what time, and where the evidence was in the laboratory. 

This is the communication log. We record everything we talk to the contributor about, 

including if there is something administratively that we need to record about the case, we can put 

it into the com log. There will be a record of communications, what might have been spoken 

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about. At the end we actually send out a form to the contributor to find out feedback from them 

(how was the laboratory?). And you can see they recorded it right here, that it was emailed out 

on this date. 

And then they have all the other information that came in, so you can see the EC 

(electronic communication) is here as well, shipping information, and then a copy of the 

secondary evidence. So, that is all turned in. 

Mr. Smith then drew the Committee’s attention to a typical CV that would go out for him 

to explain where he works, how long he has been there, his duties as a program manager, prior 

work experience (working at the Virginia Division of Forensic Science) and then his educational 

background, as well as any military background.

This actually is a [unintelligible] that we might turn over to the court. Because we are

going to talk about terms; people watch television so they think they have an idea about what 

certain things are called, and they are usually incorrect. Typically, and I am going to pick on the 

attorneys here, they call this a bullet, but for us that is a cartridge. So we want the jury to have a 

complete understanding about the terms we are going to talk about, so they are not thinking 

about one item when it’s actually a different item. 

 This is a good example, walking through, just simple terms. Here is a cartridge case. 

Here’s the cartridge, the bullet is at the front, here is the powder, this is the breech end, and there 

is the primer. So, the little donut, or little compression, is going to be in that silver section right 

back here. So the jury understands what it looks like when it is fired as opposed to not being 

fired. So you can see we have a hemispherical firing pin shape, this is the bottom of the 

cartridge, the primary [tongue?] fired. This is what it should look like after being fired. 

Here’s the breech face. That is called the firing pin aperture. That is the hole that the 

firing pin protrudes through, to create that impression that you see right there. So you can 

imagine this silver area is resting right here. You can see an outline of where, from previous 

shootings, that it is starting to leave some residue behind, right around the opening of the hole. 

These are the cartridge cases from the actual notes. There is the defect in the firing pin 

impression. This is the elimination photo that he had. 

A member asked whether this PowerPoint file is given to the defense, with all the notes. 

Mr. Smith said that it was in this situation, but not always. The member asked if you are doing 

demonstration evidence, what does the defense get? 

Mr. Smith said there are two hurdles. It is up to the prosecution. It is their case, and how 

they want it to be presented in court. But the judge may not allow it. The defense may make a 

motion that, hey, this does not pertain to this case, we do not want this evidence, so it may not 

even get into court. But we do turn it over if the prosecution wants us to give some sort of story, 

or explanation of what it is that we are going to talk about. 

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This was the elimination. Now you can clearly see the marking lines here, difference in 

aperture size. That was the elimination. You can clearly see the defect, but he is also looked at 

the aperture sheer. So I highlighted that little hole that the firing pin protruded through. While 

this is very malleable foil, it will go into that opening, and when the firing opens up it creates all 

these individual characteristics that can be used for identification. So he has two really nice areas 

to look at for an ID. And here is the defect in the firing pin for Item 295. This is the gun that we 

do not have in this case. He is also found some detail in the breech face. 

Mr. Smith highlighted one of the SOPs. He was in charge of developing this SOP and 

has presented it to a professional organization. Some laboratories have adopted it.

 He turned to verification. In the Department’s laboratory we do blind verification. If the 

original examiner collected all that information, and if this case was going to be blind verified, 

he would not be allowed to get somebody to come in and sit down and offer an opinion on his 

decision. So all the notes that you saw there, minus the verifier, would be turned over to the unit 

chief. The unit chief acts as a referee in the situation.

Now, say I am assigned to be the blind verifier. Now I have to get the evidence and do 

the same comparison and generate the same results, and they’re turned over to the unit chief. It is

the unit chief’s responsibility to look at the two examiners’ notes to see if they are congruent. In 

that situation, if I had agreed with him, I would essentially be the verifier. I did it independently 

and they matched the original. But say I did not agree. Let us say on one of those identifications 

I said, no, it is inconclusive. That is going to initiate another quality assurance component where 

we are going to have a dispute resolution. 

I am going to sit with the unit chief as well as the other examiner and we are going to talk 

about the examination. The minutes from that meeting will be recorded and they will be 

included into the 1A. 

It will go through dispute where another examiner will come in, take another look at the 

evidence, and try offer opinions. If it continually goes up and there is no agreement it 

functionally ends up in the laboratory director’s wheelhouse and they are going to make a 

decision in the end. But that whole process is cataloged, and it will be turned over into 1A. The 

defense would have a record and be able to see what took place. 

 Mr. Smith was asked to quickly summarize or go through the rest of the quality assurance 

documents. 

 Mr. Smith turned to how we produce a report. In discovery you will get everything that 

we do, including the report-writing language, whether we did it or not. This document tells us 

how to write a report, so you will get that information as well.

 Mr. Hunt talked about validating new techniques, and Mr. Smith said he was very proud 

of his unit because there is no other unit in the world that has the instruments we have in-house. 

We are looking at those individual characteristics to see if we can quantify the decision. in doing 

that I have to follow this procedure. I have to come up with a plan. How am I going to validate 

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this? I have to keep all the information that is done along the way. And in one particular case in 

which we validated one instrument for virtual comparison microscopy...all those documents are 

available if needed for discovery.

Estimation of uncertainty primarily deals with the quality system, things that are driven 

are by statute. That would be like barrel length, overall length, things where there is a criminal 

charge based on that. So, we have to figure out the uncertainty that would be applied to any 

measurement, be it for a barrel or for overall length for a firearm. If I have to report out-ofmeasurement, I am still going to have to figure out the uncertainty behind that measurement, and 

this tells you how to do it. 

Proficiency testing. I take four proficiency tests a year. It is going to be in the core 

disciplines: gunshot residue; so that’s distance determination; how far was the firearm from the 

victim; tool marks; serial number restoration, as well as firearms. this outlines the interval and 

the deadlines that have to be met when doing a proficiency test. And, if you are unsuccessful in 

the proficiency test, what is the outcome and what is the mitigation?

This is the FBI laboratory’s scientific testimony report language. This is the document I 

use when I do a review of testimony, or the opinion offered by the examiner. It is going to 

explain what we can and cannot say. I am going to testify next week in Alabama. So, this is 

what is going to happen. When I get back to the lab tomorrow, hopefully, I’m going to have to 

go in and record that I’ve read the [aster?] before I leave, and that goes into a database and a case 

record so that the quality assurance will understand I’m going to Alabama. What is the case 

record, so they can pull the transcript, and I have also read this to make sure that I am

[compliant?] with the testimony? So this talks about the conclusion of identification and then 

exclusion and inconclusive. Those are the three decisions that I can make with my opinion. At 

the end, these are statements that I cannot say. I cannot say to an absolute certainly about an 

identification. The reason being is that I am not going to see every firearm made, or has been 

made. But I do have a trueness and an understanding of individual characteristics that are 

produced, and when there’s sufficiency in their agreement for making that identification. Nor 

can I offer any numerical certainty. “I’m 99% sure.” We do not do that. That is not appropriate. 

So that is a responsibility that I have to take, when I go to testify its part of the quality system. 

That is what I have been doing for a few years now. 

You saw the end product for the cartridge case examination. This is the SOP that the 

examiner has to follow and that will also be used to evaluate his work during a technical review. 

So it lays out how the process takes place, what is used, and are there any standards of controls. 

There actually are standards in this situation for the virtual comparison microscopy. We do use 

standards for that. Performance checks for the instruments as well. And then the workflow. 

How will you perform the examination, and what to require? 

A member asked if all these procedures and regulations are part of the quality assurance 

system. Is that turned over, is that put on the web? Discovery is the focus here. 

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 Mr. Smith responded that everything that he is showing is turned over. Now that we have 

it on the web that makes it a lot easier. I can point somebody directly to the website, but we’re 

still burning them to a CD so they will have access to all of the SOP’s that we use including the 

LOM (the laboratory operations manual) and quality manual. 

 Mr. Smith said they work with two manuals. One is the quality manual, which outlines 

everything in laboratory, responsibilities, and directing certain tasks. You can just see by the 

outline that there is document control, organization, and reviews. That is the quality manual. It 

is easy to talk about technical requirements as far as education, competency testing, but the LOM 

(laboratory operating manual) is going to go into the detail of each one of these elements and 

how it is achieved because this is just the framework. 

A member commented that although Mr. Smith said that all this material is turned over; 

the member did not see anything about bench notes when they are doing things. 

Mr. Smith said the bench notes were there and pointed them out again. The ones with the 

photographs that were dark. In response to a question whether there are things examiners 

produce that are not turned over to the prosecution, Mr. Smith said that everything involved in a 

case is turned over if it would impact the case. There might be elements of the LOM that have 

no bearing on what I did in the exam. The LOM is going to be turned over to the defense, or 

rather to the prosecution, and his understanding is that the prosecution decides whether to turn 

material over to the defense. 

A member asked Mr. Smith about his quality control review of prior testimony. What 

happens if it discloses an individual case where somebody overstated something valid forensics 

matter? 

Mr. Smith said that in one case he was involved with a technical review they informed 

the court. We found an inconsistency or something that was stated not appropriately, and then 

the court and then OPEC is notified. That’s the practice. I cannot speak for other directorates 

but that is what we did. 

The final presenter was Jeannette Vargas, Deputy Chief of the Civil Division in the U.S. 

Attorney’s Office for the Southern District of New York. Her focus was Federal Rule of Civil 

Procedure 26(a)’s disclosure requirements for expert witnesses and DOJ’s experiences with 

expert disclosures in civil cases. She supervises approximately 50 line AUSAs. This work runs 

the gamut of both affirmative and defensive litigation, including tort cases, medical malpractice, 

car accidents, slip-and-falls, employment defense, and civil rights defense. On the affirmative 

side their work is also quite varied, including claims concerning fraud and healthcare, mortgage 

industry and financial institutions, procurement, federal grants, and civil rights. They enforce the 

civil-rights statutes, the Americans with Disabilities Act, fair-lending for housing, 

environmental, and shelter litigation. 

In their experience, the majority of federal civil cases that enter discovery involve some 

level of expert discovery. Ms. Vargas said that, excluding programmatic litigation (cases that are 

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confined to administrative records), in cases that go into discovery regardless of subject matter, 

whether affirmative or defensive, they regularly use retained expert witnesses.

When in the process do we retain experts in the majority of cases? Assuming the case is 

not likely to be resolved at the pleading stage, she said it is generally their practice to identify 

experts at the outset of the case. In affirmative cases, they may even obtain experts in the 

investigatory stage before bringing a complaint. Their routine experts play a very critical role in 

determining what is going to be needed in fact-discovery going forward. So what documents do 

we need to obtain, where those documents are likely to be found? What witnesses should be 

deposed? Generally speaking, civil litigators are not subject matter experts. They are litigation 

expertss and our experts are the subject matter experts who educate us on whatever it is that the 

case concerns. So that allows us to go forward with the case and help us to formulate what 

questions should we even be asking very early on. 

 Federal Rule of Civil Procedure 26(a)(2) imposes robust disclosure requirements for 

retained experts in civil cases. First, Rule 26(a)(2) states that a party must disclose the identity 

of any witness it may use at trial to present evidence under Federal Rules of Evidence 702, 703 

or 705. And in addition to disclosing the identity of the witness, of course, there are additional 

disclosures regarding the substance of the witness’s testimony, and the extent of those 

disclosures depends upon the type of expert witness that you’re talking about. Essentially, Rule 

26 divides experts into three categories. 

The first is the retained expert. The second is the employee whose duties regularly 

involve giving expert testimony. Third is the catch-all of all others who are going to be 

providing 702 opinion testimony. A retained expert, for purposes of the rule, is one who is paid 

for the specific purpose of giving expert opinion in litigation. They do not have prior knowledge 

of the facts at issue. They were not personally involved in the events giving rise to the litigation. 

And in the case of government-retained experts, they are not federal employees. They are

typically retained pursuant to a contract. They are paid either a flat-flat fee or an hourly-rate. 

More usually the hourly-rate for the specific purpose of examining the record in the case, 

consulting with the attorneys and providing their opinion which will be embodied eventually in a 

report and giving a deposition regarding that opinion. 

In contrast, a retained expert is not a percipient witness. That is one whose knowledge 

obviously is premised on their personal knowledge or involvement in the case, they are not 

considered a retained expert even though it may be the case. For example, the treating physician 

is usually considered the exception to that retained expert rule, where a party pays them. Usually 

for example the treating physicians for the plaintiff are paid. But they have come by their 

knowledge not because they have been specifically retained for litigation, but because they were 

involved in the course of treatment. That kind of witness is not considered a retained expert for 

purposes of the rules. In almost every case in which the government uses an expert witness in a 

civil case, the expert we are talking about is a retained expert. 

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The expert disclosure requirements for retained experts are set forth and Rule 26(a)(2). 

They include an expert report that contains the following elements: 

a complete statement of all opinions the witness will express and the basis and 

reasons for them, all the facts and data considered in forming those opinion, any 

exhibits used to summarize those opinions; 

the CV or otherwise a summary of qualifications that needs to include a list of all 

publications for the prior ten years; 

a list of cases in which the expert has provided deposition or trial testimony in the 

prior four years, and; 

a statement of the compensation to be paid usually up to that date, or you can 

provide the hourly-rate with some evidence regarding how much work has been 

done and how much work is estimated to be done. 

The length of an expert report can vary. At a minimum, I do not think I have ever seen one that 

is less than five pages. Typically, it is at 10 to 20 pages in a very garden-variety case, like a tour 

case or something like that. A medical opinion in the range of 10 to 20 pages is fairly standard. 

In complex cases, expert reports easily exceed that length, particularly in affirmative cases where 

the government has the burden of proof, for which the cases tend to be more complex. The 

expert reports can run quite a bit longer. It is not at all uncommon for such reports to run 

between 50 to 100 pages, including appendices and worksheets. 

 Ms. Vargas showed a sample of an expert report on a false-claims-act case. It involves 

claims that were allegedly tainted by the unlawful kickbacks. This report was prepared by a 

Nobel Prize winning economist who worked with the Department for several years doing dataanalytics and preparing this report. It took quite a long time. He had a team working with him 

under his supervision who did the analysis of the claims submitted to various federal health-care 

programs, in order to demonstrate a causal link between the payment of kickbacks and changes 

in prescribing behavior. This report, with appendices and various calculations, was 119 pages in 

length, of which 35 pages are substance and the remaining pages provide various calculations 

and data analytics. There was also a separate production of the work papers that included all the 

actual analysis broken down, which numbers several hundred pages more. Files were also 

produced at the same time as this disclosure was made. 

 Ms. Vargas turned to the other types of experts on the Rule 26(a)(2). The second 

category of experts are those whose regular duties include providing expert testimony – those 

who are a party’s employees. These expert employees are subject to the same disclosure 

requirements as retained experts. It bears emphasis that as a matter of practice, and across 

subject-matter-areas, this provision really does not have much relevance for government civil 

litigation because the Department does not typically use its employees, or agency employees, as 

expert witnesses in civil trials. It would be a very rare circumstance where we would produce an 

expert report from a federal employee. Ms. Vargas noted that she had never done it, and to her 

knowledge no one in her office has. She could not, however, eliminate the possibility that it has 

been done somewhere across the DOJ, though it would be a very rare circumstance. 

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That is not to say, Ms. Vargas noted, that the Department does not have employees with 

in-house expertise in various practice areas. They have in-house architects, in-house auditors 

and accountants, economists. But as a matter of practice, they do not use those employees as 

expert witnesses. They do not call on them to provide testimony. They do not ask them to 

prepare expert reports. If there is a litigation need for an expert to provide testimony in trial, 

they retain an outside expert to do that work. This is their practice for a variety of reasons, but a 

primary reason is the burden of asking employees to regularly produce expert reports. It would 

take those employees away from doing other mission-critical tasks. When it comes down to it, 

and the Department sees a litigation need for an expert, they go outside. 

Ms. Vargas drew the Committee’s attention to a slide providing an example of a situation 

on which there was relevant in-house expertise, but the Department nonetheless retained an 

outside expert when it came time to prepare for trial. A case from the Southern District of Texas 

required a forensic analysis of a computer to determine if certain information had been 

deliberately wiped. At the outset, the Department had the computer examined by someone from 

the FBI who gave them an in-house analysis of that computer. But, when it was time for trial, 

the Department does not generally in civil cases have employees do expert reports. Therefore, 

the analysis was redone by an outside expert who then produced a report which was 

approximately 30-odd pages in length and the Department used him as the testifying expert for 

that civil case. 

Finally, we get to the third category of experts under the federal rules. This is essentially, 

a catch-all of everyone who does not fall within the category of a retained expert or an employee 

whose regular duties include giving expert testimony. The disclosure requirements for this third 

category are much more abbreviated than those of retained experts. They do not have to provide 

an expert report or other expert disclosures. In 2010, Rule 26 was amended to include a 

requirement for summary disclosure of opinions to be offered by all expert witnesses not 

otherwise required to provide a report. Prior to that there was no such requirement, and there 

was some confusion about whether those individuals needed to provide any kind of disclosure or 

not. 

 Adopting this rule, requiring summary disclosure for non-retained experts, the advisory 

committee made clear that these disclosures for non-retained experts are considerably less 

extensive than the report required under Rule 26(a)(2)(B) for retained experts. Courts must take 

care against requiring undue detail, keeping in mind that these witnesses have not been specially 

retained and may not be as responsive to counsel as those who have. 

Ms. Vargas explained that occasionally a federal employee may be used as a summaryexpert in this way. They are not retained and are not someone whose job regularly involves 

giving testimony, but in a particular case, they might have a relevant opinion. They are not 

subject to the report requirements, because they are not normally in court giving testimony (that

is not part of their job duties), but in a one-off case we may need them to provide an opinion. 

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For example, there was an employee at one of the Department’s VA buildings, who was 

chief of engineering services. This case involved a slip and fall at the VA, and the issue was 

whether there was a water-leak in one of the pipes. The employee worked at the VA and was 

there to provide expert-opinion about the piping system and how it worked. His testimony falls 

within the summary disclosure requirements because he does not normally give testimony. That 

is not part of his job duties. He is not a forensic analyst, he does not do this for a living, but in 

this particular case the Department needed him to provide opinion testimony and provided a 

summary disclosure. The disclosure is about two pages in length and briefly states the subjectmatters on which he is expected to provide evidence and a little summary of his opinions. 

 Judge Campbell observed that the two most common experts in civil cases are treating 

physicians and police officers in cases that involve car accidents. Neither is specially retained, 

so neither has to produce a report. Thus, Rule 26(a)(2) requires the lawyer to give a summary of 

what those witnesses would say. 

Ms. Vargas stated that the summary expert report provision is often called the treating 

physician exception for that very reason. The treating physician is not considered a retained 

expert because he has personal knowledge based upon his treating history with the party, usually 

the plaintiff. And it is considered unfair to make that kind of witness produce a report in civil 

litigation because typically they are not within a party’s control. They are outside the case. The 

disclosure rules for these types of catch-all experts require that the subject matter on which the 

expert is expected to present evidence be disclosed, in addition to a summary of the facts and 

opinions to which the expert is expected to testify. 

Ms. Vargas turned to the sequence and timing for expert disclosures in civil cases. In 

most cases, the timing and sequence is dictated by a scheduling order that is issued by the district 

court at the outset of the case. Typically, discovery in civil cases proceeds in two phases: factdiscovery followed by expert-discovery. The need to proceed in this kind of dual phases is fairly 

self-evident. The experts are going to rely very heavily on the information that is gathered 

during the fact discovery phase. 

 In the first phase you have the process of document requests, interrogatories, maybe 

contention-interrogatories, fact-witness depositions, to create the record in the case. At that 

point, the parties really hone in on the issues to be tried., i.e., what is really going to be in 

dispute. In the second phase, which is expert discovery, expert disclosures are made. Typically, 

although not always, the plaintiff’s expert disclosures come first followed by the defendant’s 

disclosures. If the court does not set a date, the Federal Rule presumptively says expert 

disclosures are due 90 days before the date set for trial or the trial ready date. And again, if there 

is no court order, or the court has not ordered otherwise, parties can produce rebuttal reports 

within 30 days of the other party’s disclosures. In the final stage of civil expert discovery are 

expert depositions, which follow expert disclosures. Depending upon the number of experts and 

the complexity of the case, courts typically designate a certain amount of time for expert 

depositions to take place after all the expert disclosures have been made. Rule 26 provides that 

depositions of retained experts cannot take place until after the disclosure. 

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 To sum up, Ms. Vargas said, their experience in civil cases is that working with retained 

experts is really an intensive and sustained process. It can take many months, and sometimes 

years depending upon the nature of the experts, the nature of the case, and the complexity of the 

expert disclosures including expert depositions. Even a simple case can take time and impose a 

burden. Accordingly, the Department primarily relies on retained experts because they are 

employed for that specific purpose. It is not imposing a burden on them, they are paid to do this. 

In contrast, the Department is reluctant to take employees away from their mission-critical work 

to have them serve as experts in civil cases, given the process and procedures that really require a 

sustained and systematic disclosure, requirements that really do impose a burden on those 

employees. 

 Judge Campbell explained the development of the civil rule, and the distinction between 

retained experts and others. In 1993, the Civil Rules Committee decided that robust disclosures 

were needed. In deciding who should be required to give reports, the Committee concluded that 

it should be limited to retained experts because it is hard to get a doctor who treated the patient 

after an accident, or a police officer investigating an accident, to produce a report. 

 In 1993, the expert report requirement was adopted which said the report has to set forth 

a complete statement of what the expert will say in trial. Some judges view that as a virtually 

verbatim statement of what would be said by experts during testimony. Those who were not 

specially retained, such as treating physicians or police officers, did not have to produce anything 

and the lawyers did not have to disclose anything. As a result, there was a gap in the rules for 

about fifteen years. If you were on one side, you did not know what the other side was going to 

ask the treating physician or the police officer. To plug that gap in 2010, the Civil Rules 

Committee adopted this summary idea. We are still not going to require the treating physician to 

write a report, but we will require the lawyer to tell the other side what that lawyer intends to call 

them to testify about, what the subject is, and what the reason and basis for the opinions will be. 

It is much less detailed than the expert report, but at least it gave the other side notice of what the 

treating physician would say and then the other side could choose to oppose the treating 

physician if they wanted to. That is how the dichotomy came about, and how the rule was 

developed over time. 

 Discussion turned briefly to a comparison of the development of the Civil and Criminal 

Rules. There was agreement that in the 1990s the parallel provisions for discovery in civil and 

criminal cases were advanced.

Judge Campbell noted that the summary that was added in 2010 for non-retained experts 

is very close to what is in Criminal Rule 16. The wording is a little different, but very close. In 

a civil context, this is permitted for a non-retained expert. But a retained expert required the 

production of a detailed report. Another speaker interjected, however, that in the civil context 

the non-retained expert could be deposed. Judge Campbell agreed, and noted that the parties 

could also get all medical records. 

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Memo 

Criminal Rules Committee 

To: Criminal Rules Committee Members

From: Donna Lee Elm

Date: September 17, 2018

Re: Expert Discovery – Defense Concerns

In preparation for the meeting, I sent an email survey to federal defenders as well 

as CJA Panel practitioners concerning problems that they had encountered with the 

existing federal expert discovery under Rule 16(a)(1)(G). As is common with email 

survey blasts, there was little response. However while a number of those responding

summarily bemoaned the Rule as insufficient and “toothless,” I was provided with quite 

a few instances where the Rule fell short of adequately apprising the Defense so that the 

government’s expert testimony could be effectively challenged.1 Furthermore, I asked

about traditional experts, not the thorny problem of officers offering “expert” testimony 

as is common in interpreting drug trafficking language and behavior. I nonetheless had 

a groundswell of complaints about the latter – suggesting it may be something to 

consider going forward.

Criminal Defense Attorneys with Civil Experience 

CJA A: A long-time CJA panel member from the southwest, who has an active

civil practice, was pleased that the Committee was considering productive changes of 

the Rule. “The criminal system for handling expert witnesses – in which opponents of 

the expert get neither a detailed report nor a deposition – is inferior to its civil analogue 

in virtually every way.” He noted that it is costly to use Court time for a Daubert

hearing, which essentially allows the defense to discover the opinions and their bases, as 

opposed to the civil practice which would provide all that information without Court 

intervention and hearing.

Rule 16’s disclosure requirement results in “a two-to-three page (double-spaced) 

summary either of the opinions the proponent of the expert hopes he will say or of the 

broad topics ... that the expert can testify on.” The simple civil requirement that the 

expert sign the disclosure was “huge,” especially because “Many of the summaries 

written by the Government are (1) written by an AUSA and not even seen by the expert 

prior to a Daubert hearing; and (2) written before the expert had formed his actual 

opinions.” He offered as an example experts such as child psychology and human 

trafficking experts who testify “seminar style” about typical effects and behaviors in 

these cases. He noted that the criminal Rule offers no penalty for providing this type of 

disclosure, provided that the AUSA drafted “an over-inclusive disclosure.” Another 

 

1 This serves only to alert us to some problem areas we may want to focus on for any testimony. 

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drawback of the unsigned notice is that the expert cannot be impeached with it when 

varying from the Government’s notice.2

He recommended some changes to the criminal rule. At a minimum, the rule 

should require the expert to sign the disclosure, and “there is little downside to 

requiring that this report fulfill all the detailedness requirements of a civil expert 

report.” 

When so little is disclosed by the Government so late, he has seen current 

reciprocal discovery obligations “incentivize defendants in some cases ... to forego any 

reciprocal expert disclosure.”3 Noting that those are rare occurrences, the government’s 

late/lax disclosure can place the defense at an advantage. Hence the Government could 

strategically use its Rule 16 obligations to obfuscate, and the Defense can do the same 

with its reciprocal obligation – gaming instead of principally deciding a controversy. 

He went on to offer redlined changes to Rule 16. He followed with a thoughtful 

and fleshed-out proposal for reciprocal expert depositions. Acknowledging that it would 

be a significant departure from the current Rule, he believed that that would 

nonetheless “increase both the quality of the truth-seeking function of discovery and the 

efficiency of the proceedings.”

AFPD B: A Midwest AFPD who had worked in civil practice for a number of 

years was deeply troubled by the difference between civil and criminal expert discovery 

rules. She had found that all expert disclosures by AUSAs were “pretty bare bones.” She 

also noted that the government often claimed that they do not need to disclose nonforensic experts “such as the accountant from the victim company or the investigating 

agency, claiming that they are fact or lay witnesses,” even though they testify about 

matters within their particular expertise.

She also saw a significant difference in disclosure of the substance of the expert’s 

testimony. “The AUSA’s summary is often a lot shorter and less detailed than what the 

expert is ultimately going to testify to. My experience was that a lot more detail was 

required in civil to pass muster.”

Finally, local rules and procedures did not ensure adequate notice. Defense 

lawyers “have to push the government and court for a deadline for expert disclosures.” 

She usually did not receive those disclosures early enough to sufficiently investigate, 

prepare for, and hold Daubert hearings. “Unlike motions in limine, expert disclosures 

should not be submitted just a couple weeks before trial because trial judges are often 

reluctant at that point to hold Daubert hearings when appropriate.” The defense 

 

2 He conceded that he has sometimes been allowed to impeach an expert with the Government’s Rule 16 

notice, but that confrontation “certainly is not effective impeachment when the expert can honestly 

explain that he or she neither wrote nor approved the summary.”

3 This can occur when the Defense is not fully informed until a thorough Daubert hearing that sets out 

the expert position, hence the Defense must secure an expert at the eleventh hour at no fault of its own.

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therefore sometimes faces “shoddy prosecution experts offering either junk science or 

untestable conclusions that are cloaked in expert mystery.”

CJA C: A CJA and civil rights practitioner in the North Central part of the 

country acknowledged “how vital it is to get a full report in advance of trial.”

CJA D: A recently retired west coast CJA Attorney (who had 25 years of civil 

litigation experience that was rife with experts) felt our existing criminal expert 

discovery rules failed to require important background information about expert 

opinions. He suggested that Rule 16 spell out more detailed disclosure requirements, 

including:

All documents/data provided to the expert to review;

A copy of the expert’s CV (not just a summary of his experience);

All raw testing data used to prepare reports;

All graphics generated by the expert regarding reaching his opinion; and

Identify computer applications used to test/analyze the data.

Unfair/Inadequate Expert Notice

Often inadequate disclosure coupled with inadequate court procedures result in 

expert testimony that was not anticipated, went untested, and could not be confronted 

on short notice. 

AFPD E: A Southwest AFPD detailed her experience in a lengthy high stakes

bomb-making trial where the Government’s expert disclosure was inadequate. The 

notice “read something like we will call an electrical engineering expert who will testify 

about various items and why they were significant to him and then will opine that this 

was an IED cache.” Upon the Defense objection, the AUSA conceded that the notice was 

insufficient,4 but claimed that they had produced the opinions/conclusions of their 

experts in standard discovery. Per the Court’s Order, the Government produced over 80 

engineering reports by the FBI spanning 2,000 pages. A new judge took over the case 

and never ruled on the objection, initiating trial. During the expert’s testimony, the 

Defense found out that this expert had only read 5-10 of those 80+ “expert reports” 

disclosed. “Worse, his testimony directly contradicted those reports on material points.” 

His testimony was nevertheless allowed over objection. 

CJA F: Another veteran CJA Panel member from the Southeast noted much the 

same problem with expert notices. He complained of common “data dumps” of 

discovery regarding expert information that hid rather than clarified the opinions, and 

their bases, that experts relied on. Given that, “It would be great to get some kind of 

rule requiring indexing.”

 

4 This was also on the eve of trial and well after the expert notification deadline imposed by the Court.

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CJA G: A CJA Panel attorney from the central plains area complained that he 

regularly got late and inadequate notice. “After several discovery requests by letter and 

even a motion, you are still waiting for this to happen with trial approaching.” He 

believes this is done to thwart Defense preparation to confront the Government expert, 

noting that sometimes the AUSA has offered an acceptable plea agreement instead of 

disclosing the expert or his report. 

Police Agent as Expert Inadequate Disclosure 

Although I was not asking about these types of experts, several concerned 

practitioners raised the issue. Moreover, the problems inherent with notice of 

traditional forensic experts also plague these witnesses, thus informing the discussion of 

forensic experts. 

FPD H: A 2-decade Federal Defender from the Northeast felt that the problem

of police witnesses serving as experts on drug quantities and packaging being consistent 

with distribution, or on gang structure and drug code words, was a bigger problem than 

abuses of standard forensic expert disclosures.

CJA A: The long-time CJA lawyer from the Southwest who was also engaged in 

a civil practice felt that the most abused aspect of the criminal expert practices was 

using a lay witness (like the case agent) as an expert. “This is one area where there is a 

major difference in the context and expectations between the criminal and civil rules 

and practice.” Such experts are “among the ones most in need of close examination 

under Rules 702-705 (and probably really 701).” His discussion of these types of experts 

is quite worthy of our regard when we turn to that subject.

CJA I: A CJA attorney from a Southern state has been frustrated by the AUSA 

using “a DEA agent as an expert on ‘drug interdiction’ and Narcotics investigation.” He 

continuously asked for clarifications of what testimony these experts would offer, and 

provided as an example serial responses filed by an AUSA. Those Rule 16 notices were 

overbroad and unspecific. The original Rule 16 disclosure is quoted in whole below. 

The Government would call the DEA agent:

as an expert witness in the field of drug interdiction and drug trafficking 

investigations if the case proceeds to trial. A copy of his curriculum vitae is 

attached. [He] will testify to his knowledge of drug interdiction and drug 

trafficking investigations.

After being pressed for greater information, the prosecutor added more verbiage but 

hardly more content; he reported that his DEA agent “is expected to testify as an expert 

on drug trafficking, drug investigation techniques, drug-trafficking ‘tools of the trade,’ as 

well as the modus operandi used by drug traffickers.” Additional “expected” testimony 

included that “drug-trafficking ‘tools of the trade’ were seized in this case and that 

defendants follow the drug-trafficking modus operandi to traffic cocaine.” The agent 

would also be expected to opine as to “cocaine quantities and prices, and related 

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matters.” Consistent to the belief expressed by CJA A, that response appears to confirm 

that no discussions to ascertain the scope of expert testimony had taken place even by 

the point that that second disclosure was made. When pressed, he provided some 

meaningful substance of the expert testimony relating to details that in fact pertained to 

the case – presumably after finally discussing anticipated testimony with the DEA agent. 

This Defense attorney went on to note the need for “a report requirement or a summary 

requirement provided by the expert not the attorney as to what the testimony is going to 

be. ... At a bare minimum the Rules of Criminal Procedure need to match the Civil 

Procedure Rules as a person’s liberty interest is at stake in a criminal prosecution.” 

CJA C: The CJA and civil rights attorney mentioned in the first section also 

commented on the police expert dilemma: “So many cases involve opinions by law 

enforcement on anything from supposed drug code language to how cartels or canine 

alerts work. The methodology or generally accepted standards are often ambiguous in 

the summaries. So Rule 26 would be a great change.”

CJA J: A CJA attorney from a west coast state reported that the Government hid 

the fact that they were going to solicit from their case agent expert testimony about child 

exploitation, referring to him merely as a percipient fact witness. This was done to 

prevent disclosure to the Defense. “His opinions became a moving target at trial, and 

continued to evolve even between trial and sentencing.” Recognition in Rule 16 that 

there may be mixed fact/expert witnesses like this, and specifying necessary disclosures 

for these individuals, is recommended.

CJA K: A CJA Panel member from the Northwest reported on a trial (a single 

drug transaction) where the Government “sought to introduce expert testimony about 

methods and techniques of drug traffickers.” The Defense successfully moved to 

preclude this testimony. (I have the motion and response.) 

 

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