A Summary of Responses to a 

National Survey of Rule 16 of the 

Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases 

Final Report to the Advisory Committee on Criminal Rules 

Laural Hooper 

David Rauma 

Marie Leary 

Shelia Thorpe 

Federal Judicial Center 

February 2011 

This Federal Judicial Center publication was undertaken in furtherance of the Center’s 

statutory mission to conduct and stimulate research and development for the improvement of judicial administration. While the Center regards the content as responsible and 

valuable, it does not reflect policy or recommendations of the Board of the Federal Judicial Center. 

A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

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Contents 

Acknowledgments, v 

I. Introduction, 1 

A. Overview of the Report, 2 

B. Background, 3 

II. Summary of Findings, 8 

III. Analysis of District Court Local Rules and Orders with Broader Disclosure 

Requirements than Rule 16 for Disclosing Brady Material, 11 

A. Scope of Disclosure, 12 

B. Timing of Disclosure, 14 

C. Elimination of Brady “Materiality” Requirement, 16 

D. “Defense Request” Disclosure Prerequisite, 17 

IV. Need for an Amendment to Rule 16, 19 

A. Favored or Supported Amending Rule 16, 19 

B. Opposed Amending Rule 16, 22 

V. Perceptions Regarding Attorneys’ Comprehension of Disclosure Obligations 

Pursuant to District Court Local Rules, Orders, and Case Law, 24 

VI. Attorneys’ Compliance with Specific Disclosure Obligations, 27 

A. Frequency of Cases Over the Past Five Years in Which the Court 

Concluded Attorneys Failed to Comply with Disclosure Obligations, 27 

B. Nature of Most Frequently Mentioned Disclosure Violations by Federal 

Prosecutors, 27 

C. Nature of Most Frequently Mentioned Disclosure Violations by Defense 

Attorneys, 28 

D. Remedies Imposed for Disclosure Violations, 29 

E. Perceptions Regarding Overall Compliance by Attorneys, 30 

VII. Other Selected Issues in Broader Disclosure Districts, 32 

A. Elimination of the Materiality Requirement, 32 

B. Timing of Disclosure Issues, 34 

VIII. Disclosure of Witness Statements, 37 

IX. Impact of the 2007 Advisory Committee Proposal on Cooperating Witnesses and 

Crime Victims, 38 

A. Effects on Cooperating Witnesses, 38 

B. Effects on Crime Victims, 42 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

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X. Reform Proposals, 46 

A. Judges’ Comments, 46 

B. Defense Attorneys’ Comments, 47 

XI. Summary of General Comments, 48 

A. Judges’ Comments, 48 

B. Defense Attorneys’ Comments, 49 

Appendices, 52 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

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Acknowledgments 

The authors gratefully acknowledge the valuable assistance of a number of Center 

staff members who helped produce this report, including Patricia Breen, Jackie 

Campbell, Tyeika Crawford, Meghan Dunn, Emery Lee, Angelia Levy, Vashty Gobinpersad, Barry McMillion, Donna Pitts-Taylor, and Margaret Williams. We also 

acknowledge the indispensable assistance of Judge Richard C. Tallman, chair of 

the Advisory Committee on Criminal Rules; members of the Rule 16 subcommittee; and the Committee’s reporters, Professors Sara Beale and Nancy King, who 

assisted in developing the survey questions. Finally, we also thank Judge Joseph 

Bataillon (District of Nebraska), Judge David Carter (Central District of California), and Judge Ivan Lemelle (Eastern District of Louisiana) who provided important feedback on earlier versions of the survey instruments. 

A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

1 

I. Introduction 

Federal Rule of Criminal Procedure 16 (Rule 16) governs discovery and inspection 

of evidence in federal criminal cases. Rule 16 entitles the defendant to receive, 

upon request, the following information: 

• statements made by the defendant; 

• the defendant’s prior criminal record; 

• documents and tangible objects within the government’s possession that 

“are material to the preparation of the defendant’s defense or are intended 

for use by the government as evidence in chief at the trial, or were obtained 

from or belong to the defendant”; 

• reports of examinations and tests that are material to the preparation of 

the defense; and 

• written summaries of expert testimony that the government intends to use 

during its case-in-chief at trial.1

 Rule 16 also imposes on the government a continuing duty to disclose additional evidence or materials subject to discovery under the rule, if the government 

discovers such information prior to or during the trial.2 Finally, Rule 16 grants the 

court discretion to issue sanctions or other orders “as are just” in the event the 

government fails to comply with a discovery request made under the rule.3

 The Advisory Committee on Criminal Rules (Advisory Committee) is considering whether Rule 16 should be amended to incorporate the government’s constitutional obligation to provide exculpatory and impeachment evidence to the 

defense or, instead, to create a broader disclosure obligation. To help inform its 

deliberations, the Advisory Committee asked the Federal Judicial Center (Center) 

to study the operation of districts with local rules or standing orders that require 

more expansive disclosure than required by the current Rule 16, to study those 

districts without the more expansive rules, and, further, to identify any variation 

in pretrial disclosure practices in the federal district courts. 

 In order to address the Committee’s questions, the Center conducted a national survey in the summer of 2010, which included an online survey of all federal district and magistrate judges, U.S. Attorneys’ Offices, federal defenders, and a 

sample of defense attorneys in criminal cases that terminated during calendar year 

2009. 

 1. Fed. R. Crim. P. 16(a)(1)(A)–(G). 

 2. Fed. R. Crim. P. 16(c). 

 3. Fed. R. Crim. P. 16(d)(2). 
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 This report describes the results of that survey. The principal issues addressed 

in the survey are: 

• Should Rule 16 be amended to address pretrial disclosure of exculpatory 

and Giglio4 information? 

• Do federal prosecutors and defense attorneys understand their pretrial disclosure obligations? 

• Do federal prosecutors’ concerns about witness intimidation, security, and 

privacy affect whether information or evidence is disclosed to the defense? 

• Are federal prosecutors viewed as fulfilling their pretrial discovery obligations? 

• How frequent are reverse-Jencks Act5

 violations committed by defense attorneys? 

• How do courts address pretrial disclosure violations by the government 

and by defense attorneys? 

• How might the Committee’s 2007 proposal6

 affect cooperating witnesses 

and crime victims? 

• In addition to the Committee’s 2007 proposal, are there other reform proposals that should be considered? 

A. Overview of the Report 

Section I of this report provides a general introduction and background information. Section II presents a summary of the Center’s survey findings. Section III describes the local rules and orders of federal district courts that require broader disclosure than that of Rule 16 for Brady material. Section IV presents survey respondents’ views on whether there is a need to amend Rule 16. Section V describes 

survey respondents’ perceptions as to whether attorneys understand their disclosure obligations. Section VI presents respondents’ opinions regarding attorneys’ 

compliance with disclosure obligations. Section VII focuses on selected issues in 

districts that have specific timing requirements for disclosure or that have eliminated the materiality requirement in assessing relevant information and evidence. 

Section VIII addresses disclosure of witness statements. Section IX summarizes 

respondents’ views of the impact of the proposed 2007 amendment on cooperat-

 4. Giglio v. United States, 405 U.S. 150 (1972). 

 5. 18 U.S.C. § 3500 (1970). 

 6. See Appendix A, Advisory Committee’s Proposed 2007 Rule 16 Amendment and Committee Note. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

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ing witnesses and crime victims. Section X contains a summary of respondents’ 

suggested alternative language for amending Rule 16 and also addresses other reform proposals. Section XI concludes with a summary of the respondents’ general 

comments. 

 Appendix A contains the Advisory Committee’s 2007 proposed amendment to 

Rule 16. Appendix B includes a compendium and tables describing the broader 

disclosure districts’ local rules and orders. Appendix C contains tables generated 

from the survey data. Appendix D describes the methods used for the study. Appendix E includes the survey instruments. The Appendices are available on the 

federal courts’ intranet at http://cwn.fjc.dcn/fjconline/home.nsf/pages/1356. 

B. Background 

Discussions about amending Rule 16 began in 1968 when the Advisory Committee voted not to codify Brady v. Maryland, 373 U.S. 83 (1963), instead leaving it to 

the development of case law. In 2003, the American College of Trial Lawyers proposed that Federal Rules of Criminal Procedure 11 and 16 be amended to (1) codify the rule of law first propounded in Brady v. Maryland; (2) clarify both the nature and scope of favorable information; (3) require the attorney for the government to exercise due diligence in locating information; and (4) establish deadlines 

by which the United States must disclose favorable information.7

 The Advisory 

Committee then again discussed whether an amendment to Rule 16 was needed. 

Specifically, the Committee explored whether Rule 16 should codify and expand 

the government’s disclosure obligations regarding exculpatory and impeachment 

evidence favorable to the defense. 

 The Department of Justice (DOJ) has consistently opposed any proposed 

amendment to Rule 16, generally contending that codification of the Brady rule is 

unwarranted because the government’s Brady obligations are “clearly defined by 

existing law that is the product of more than four decades of experience with the 

Brady rule.”8 DOJ has further contended that nondisclosure problems are not 

widespread and, consequently, a rule change is not needed. 

 Notwithstanding its opposition to an amendment, DOJ has worked with the 

Advisory Committee over the past few years to draft language for a proposed 

amendment while simultaneously making revisions to the U.S. Attorneys’ Manual 

(Manual) regarding the government’s disclosure obligations, revisions that might 

serve as an alternative to a Rule 16 amendment. 

 7. Memorandum from American College of Trial Lawyers to the Judicial Conference Advisory Committee on Federal Rules of Criminal Procedure (Oct. 2003), at 2. 

 8. Memorandum from U.S. Dep’t of Justice (Criminal Division) to Hon. Susan C. Bucklew, 

Chair, Judicial Conference Subcommittee on Rules 11 and 16 (Apr. 26, 2004), at 2. 
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 In September 2006, the Advisory Committee reviewed DOJ’s proposed revision to the Manual and debated whether, in light of that provision, the Committee 

should still forward the draft Rule 16 amendment to the Judicial Conference’s 

Standing Committee on Rules of Practice and Procedure (Standing Committee) 

for publication. After considerable deliberation, the Advisory Committee concluded that an amendment to Rule 16 was necessary because the Manual was not 

judicially enforceable and provided internal DOJ guidance only. Consequently, 

the Advisory Committee voted to forward the proposed Rule 16 amendment to 

the Standing Committee for publication. The proposed amendment was based on 

the principle that fundamental fairness is enhanced when the defense has access 

before trial to any exculpatory and impeaching information known to the prosecution. Further, the proposed amendment codified the prosecutor’s duty to disclose such information in the Federal Rules of Criminal Procedure and therefore 

would become a standard part of pretrial discovery in federal prosecutions. 

 On October 19, 2006, DOJ posted a new Manual provision clarifying the disclosure of material and exculpatory evidence.9

 Specifically, the Manual noted the 

difficulty in assessing the materiality of evidence before trial, and thus encouraged 

prosecutors to take a broad view of materiality and err on the side of disclosing 

exculpatory and impeaching evidence.10 

 In June 2007, DOJ wrote to then-chair of the Standing Committee, Judge 

David F. Levi, to express a number of concerns regarding the proposed amendment to Rule 16. DOJ argued that the proposed amendment (1) was inconsistent 

with forty years of Supreme Court precedent as it would eliminate any materiality 

requirement for the disclosure of both exculpatory and impeachment material; 

(2) conflicted with other provisions of the Criminal Rules; (3) was inconsistent 

with current federal discovery procedures; (4) potentially conflicted with witness 

protection and crime victim rights statutes; and (5) provided little or no guidance 

on how the amendment should be applied.11 

 At the Standing Committee meeting in June 2007, DOJ persuaded the Standing Committee to reject the proposed amendment to Rule 16. The Standing 

Committee’s rejection was partially based on the desire to obtain information 

about the experience with DOJ’s revisions to its U.S. Attorneys’ Manual and allow 

DOJ an opportunity to implement new training initiatives to increase awareness 

among prosecutors of their discovery obligations in criminal cases.12 

 9. U.S. Attorneys’ Manual § 9-5.001. 

 10. Id. 

 11. Letter from Paul J. McNulty, Deputy Att’y Gen., U.S. Dep’t of Justice, to Judge David 

Levi, Chair, Committee on Rules of Practice and Procedure (June 5, 2007) (on file with author). 

 12. See Memorandum from Nancy King and Sara Beale to Rule 16 Subcommittee (Aug. 31, 

2009) (on file with author). 
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 Since 2007, there have been a number of high-profile cases involving the government’s failure to comply with disclosure obligations.13 In one case, the court 

dismissed the government’s public corruption case against the defendant after an 

internal DOJ review discovered that government material undermining a critical 

witness’s testimony had not been given to the defense.14 And in another case, the 

court ordered the attorney involved to show cause why she should not be 

sanctioned after failing to disclose exculpatory evidence.15

 In September 2009, the American Bar Association Standing Committee on 

Ethics and Professional Responsibility issued a formal opinion regarding a prosecutor’s duty to disclose all exculpatory information to the defense under Rule 

3.8(d) of the ABA Model Rules of Professional Conduct.16 The opinion noted that 

Rule 3.8(d) is more demanding than the constitutional case law in that it requires 

the disclosure of evidence or information favorable to the defense without regard 

to its anticipated impact on a trial’s outcome. Rule 3.8(d) requires prosecutors to 

go beyond the constitutional line, erring on the side of caution and further indicates that disclosure should occur sufficiently in advance to allow for investigation, affirmative defenses, or determination of defense strategy.17 Finally, the 

comment to Rule 3.8(d) indicates that a prosecutor has the responsibility of a 

minister of justice and not simply that of an advocate. This responsibility carries 

with it specific obligations to ensure that the defendant is accorded procedural 

justice, that guilt is decided upon the basis of sufficient evidence, and that special 

precautions are taken to prevent and to rectify the conviction of innocent persons.18

 In November 2009, the Benjamin N. Cardozo Law School in New York held a 

symposium titled New Perspectives on Brady and Other Disclosure Obligations: 

 13. See, e.g., United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008) (affirming dismissal of 

an indictment with prejudice where the trial court found the prosecutor violated Brady and 

Giglio); United States v. Shaygan, 661 F. Supp. 2d 1289 (S.D. Fla. 2009) (issuing a public reprimand against U.S. Attorneys Office and three prosecuting attorneys as well as granting monetary 

sanctions to the defendant); United States v. Quinn, 537 F. Supp. 2d 99 (D.D.C. 2008) (granting a 

motion for a new trial because of disclosure violations); United States v. W.R. Grace, No. 09:05-cr00007-DWM (D. Mont. May 6, 2009) (instructing jury to examine a witness’s testimony “with 

great skepticism and with greater caution than that of other witnesses” as a result of the relationship the witness had with the prosecution team). 

 14. United States v. Stevens, Cr. No. 08-231 (D.D.C. Apr. 7, 2009). 

 15. United States v. Jones, 620 F. Supp. 2d 163, 185 (D. Mass. 2009). The court also ordered 

the development of an educational program on criminal discovery that would be administered by 

the court. 

 16. ABA Standing Comm. on Ethics and Prof’l Responsibility, Formal Op. 09-454 (2009). 

 17. Id. 

 18. Id. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

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What Really Works? [hereinafter Brady disclosure symposium].19 The overarching 

theme of the Brady disclosure symposium was to explore and identify the best 

practices to ensure effective and ethical prosecutor offices. The Brady disclosure 

symposium included approximately seventy-five participants, including “representatives from state and federal prosecutors’ offices, defense lawyers, judges, legal 

academics, cognitive scientists, social psychologists, doctors, as well as members of 

the medical and corporate risk management fields.”20 The participants were split 

into six groups to discuss a core issue, such as Prosecutorial Disclosure Obligations and Practices.21 Each group was responsible for producing a report with recommendations.22

 On January 4, 2010, DOJ issued three memos from Deputy Attorney General 

David Ogden that provided direction for prosecutors in pending criminal cases.23

One of the three memos is a detailed guidance memo for all federal prosecutors 

that sets forth the steps DOJ has taken and will take to ensure that prosecutors assess and meet their disclosure obligations. The new guidance memo was in response to recommendations from a DOJ working group tasked to review DOJ 

policies and practices regarding criminal discovery issues.24 The guidance memo 

was not intended to establish new disclosure obligations. The guidance memo, 

however, notes that inconsistent discovery practices among prosecutors within the 

same office can lead to burdensome litigation over the appropriate scope and 

timing of disclosures, judicial frustration and confusion, and disparate discovery 

 19. Symposium, New Perspectives on Brady and Other Disclosure Obligations: What Really 

Works?, 31 Cardozo L. Rev. 1961 (2010). 

 20. Id.

 21. Id. at 1961–62. 

 22. See, e.g., id. at 1971, which sets forth the recommendations and conclusions of the 

Prosecutorial Disclosure Obligations and Practices Working Group. 

 23. Memorandum from David W. Ogden, Deputy Att’y Gen., U.S. Dep’t of Justice, Guidance 

for Prosecutors Regarding Criminal Discovery (Jan. 4, 2010), available at http://www.justice.gov/ 

usao/eousa/foia_reading_room/usam/title9/crm00165.pdf; Memorandum from David W. Ogden, 

Deputy Att’y Gen., U.S. Dep’t of Justice, Issuance of Guidance and Summary of Actions Taken in 

Response to the Report of the Department of Justice Criminal Discovery and Case Management 

Working Group (Jan. 4, 2010), available at http://www.justice.gov/dag/dag-memo.pdf; Memorandum from David W. Ogden, Deputy Att’y Gen., U.S. Dep’t of Justice, to Heads of Department 

Litigating Components Handling Criminal Matters, All United States Attorneys, Requirement for 

Office Discovery Policies in Criminal Matters (Jan. 4, 2010), available at http://www.justice.gov/ 

dag/dag-to-usas-component-heads.pdf. 

 24. Criminal Law—Discovery: DOJ Memo Lays Out Guidelines on Discovery, 78 U.S.L.W. 2394 

(Jan. 10, 2010). 
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disclosures to a defendant based solely on the identity of the prosecutor who was 

assigned to the case.25

 Then-Deputy Attorney General Ogden also directed that each U.S. Attorney’s 

Office develop a discovery policy consistent with the law and local rules and practices, to be in place by March 31, 2010. To assist federal prosecutors in meeting 

their discovery obligations, DOJ implemented a training curriculum and created 

an online directory of resources pertaining to discovery issues.26 Further, a mandatory training program has been developed for paralegals and law enforcement 

agents. 

 In February 2010, the Rule 16 Subcommittee of the Advisory Committee held 

a consultative meeting that brought together judges, prosecutors, defense attorneys, and crime victim advocates to discuss issues related to the disclosure of exculpatory and impeaching information in criminal cases. The invitees had extensive experience involving issues related to Rule 16, ranging from white collar cases 

to prosecutions involving organized crime and national security. 

 At the April 2010 Advisory Committee meeting, DOJ briefed the Advisory 

Committee about the various initiatives undertaken by the Department to ensure 

federal prosecutors meet their disclosure obligations. DOJ reported that 5,000 

prosecutors had completed the newly adopted mandatory training courses on disclosure obligations. Assistant Attorney General Lanny Breuer introduced Andrew 

Goldsmith, who was appointed to DOJ’s newly created position of National Coordinator for Criminal Discovery Initiatives. His responsibilities would include 

reviewing the discovery plans of every U.S. Attorney’s Office, designing training 

for law enforcement agents and paralegals, creating an online directory of resources on discovery, producing a handbook on discovery and case management, 

and consulting with judges and members of the defense bar to obtain different 

points of view on criminal discovery issues. 

 In June 2010, at the request of the Advisory Committee, the Federal Judicial 

Center conducted a national survey of all federal district and magistrate judges, 

U.S. Attorneys’ Offices, and federal defenders, and a sample of defense attorneys 

in criminal cases that terminated in calendar year 2009. The surveys collected empirical data on whether to amend Rule 16 and collected views regarding issues, 

concerns, or problems surrounding pretrial discovery and disclosure in the federal 

district courts. Preliminary results were presented at the Advisory Committee 

meeting in September 2010. 

 25. Memorandum from David W. Ogden, Deputy Att’y Gen., U.S. Dep’t of Justice, to Heads 

of Department Litigating Components Handling Criminal Matters, All United States Attorneys 

(Jan. 4, 2010) (on file with author). 

 26. Att’y Gen. Eric Holder, Remarks at the 70th Judicial Conference of the Sixth Circuit (May 

5, 2010). 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

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II. Summary of Findings 

In this section, we summarize the Rule 16 survey results. Most of these results are 

discussed more fully in various sections of this report and in the materials contained in the Appendices. 

Overall: 

• Forty-three percent (644 of 1,505) of judges completed the survey, including 56% of chief district judges and 48% of active district judges. 

• Thirty-one percent (4,547 of 14,726) of private attorneys and 47% (612 of 

1,290) of federal defenders completed the survey. 

• Ninety-one percent (85 of 93) of U.S. Attorneys’ Offices completed the 

survey.27

• Thirty-eight districts have a local rule or standing order that codifies the 

government’s obligations to disclose exculpatory and/or impeachment 

material in either very general or specific terms, and/or provides timing 

requirements for the disclosure of exculpatory and/or impeachment material. 

• Judges were evenly split regarding whether Rule 16 should be amended; 

however, judges in districts with local rules and/or orders that require 

broader disclosure of exculpatory and impeachment material than what is 

required by Rule 16 (hereinafter called broader disclosure districts) indicated greater support for amending Rule 16 compared to judges in traditional Rule 16 districts (hereinafter called traditional districts). 

• More than 90% of defense attorneys favored an amendment to Rule 16, 

while the Department of Justice opposes any type of amendment. 

• Judges reported higher levels of comprehension of disclosure obligations 

by federal prosecutors than by defense attorneys. Specifically, over 94% of 

judges expressed the view that federal prosecutors usually or always understand their disclosure obligations. Only 78% of judges thought the same of 

defense attorneys. 

• Eighty-eight percent of judges replied that federal prosecutors usually or 

always follow a consistent approach to disclosure. Data from the defense 

bar was mixed. In broader disclosure districts, 70% of private attorneys re-

 27. A single U.S. Attorney serves the districts of Guam and the Northern Mariana Islands. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

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plied that federal prosecutors are consistent compared to 44% of federal 

defenders. Eighteen percent of federal defenders in broader disclosure districts stated that federal prosecutors are rarely consistent. In traditional 

districts, 52% of private attorneys thought the government is consistent 

compared to 25% of federal defenders. Twenty-eight percent of federal defenders in traditional districts indicated that the government is rarely consistent. 

• Over 60% of the judges reported having no cases during the past five years 

in which they had concluded that a federal prosecutor or defense attorney 

had failed to comply with disclosure obligations. 

• Judges reported that the two most frequent disclosure violations committed 

by federal prosecutors were the failure to disclose on time and the scope of 

their disclosure (the failure to turn over material or information that 

should have been turned over to the defense). Failure to disclose at all was 

the most frequent violation identified by defense attorneys. 

• Judges reported that the two most frequent disclosure violations committed 

by defense attorneys were the failure to disclose on time and failure to disclose 

at all. Failure to disclose at all was the most frequent violation identified by 

U.S. Attorneys’ Offices. 

• The two most frequently reported remedies imposed for disclosure violations attributed to the government or to the defense were (1) ordering 

immediate disclosure of the questionable material or information and 

(2) ordering a continuance to give the requesting party an opportunity to 

review the material. 

• Overall, judges reported rarely holding an attorney in contempt, and they 

seldom report an attorney’s conduct to the Department of Justice’s Office 

of Professional Responsibility (OPR), bar counsel, or some other disciplinary body. 

• Judges reported high levels of satisfaction with the overall compliance by 

federal prosecutors and defense attorneys with their disclosure obligations. 

• Fifty-two percent of defense attorneys in broader disclosure districts and 

56% of defense attorneys in traditional districts reported that the government had requested no protective orders over the past five years because of 

witness safety or other security concerns. 

• Thirty-eight percent of U.S. Attorneys’ Offices in broader disclosure districts and 41% of U.S. Attorneys’ Offices in traditional districts reported 

requesting no protective orders over the past five years. 
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• Twenty percent of U.S. Attorneys’ Offices in broader disclosure districts 

and 11% in traditional districts reported that requests for protective orders 

were made in five to ten cases over the past five years. 

• The timing of disclosure was the issue most frequently addressed in the 

judges and attorneys’ suggestions for reforming the proposed 2007 

amendment. 

Other selected issues in broader disclosure districts: 

• The most common variations across district local rules, standing orders, 

and policies occurred in the timing of disclosure of exculpatory and/or 

impeaching information and the existence of an “open file” policy or practice. 

• The most common “significant differences” reported by respondents between their local rule, order, or policy and Rule 16 were: the timing of disclosure; the existence of an “open file” policy or practice; disclosure without regard to materiality; and the production of witness statements prior 

to trial. 

• Judges and U.S. Attorneys’ Offices reported that requirements for earlier 

disclosure do not appear to cause major problems for the prosecution. 

• Judges, defense attorneys, and U.S. Attorneys’ Offices expressed the view 

that requirements for earlier disclosure do not greatly impact witness cooperation. 

• Defense attorneys reported that the elimination of the materiality requirement has reduced problems and confusion regarding government 

disclosure in most or some cases. The majority of U.S. Attorneys’ Offices 

report that the elimination made no difference. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

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III. Analysis of District Court Local Rules and Orders 

with Broader Disclosure Requirements than Rule 16 for 

DisclosingBrady Material 

Rule 16 does not codify the government’s obligation to disclose exculpatory and 

impeachment material as established by the Supreme Court in Brady v. Maryland, 

373 U.S. 83 (1963) [Brady], Giglio v. United States, 405 U.S. 150 (1972) [Giglio], 

and their progeny. Rule 16 does require the government to disclose, upon defendant’s request, documents and tangible objects “material to the preparation of his 

defense.” This is interpreted by the Advisory Committee Note to the 1974 

Amendments to include “evidence favorable to the defendant.”28 Rule 16 does not, 

however, establish a time frame for disclosing this material. A review of the 

ninety-four federal districts’ local rules, standing orders, and websites revealed 

thirty-eight districts29 with local rules and/or standing orders that impose requirements beyond those of Rule 16 for disclosure of exculpatory and impeachment material [Brady/Giglio material]. 

 More specifically, thirty-eight districts have a local rule or standing order that 

codifies the government’s obligations to disclose exculpatory and/or impeachment 

material in either very general or specific terms, and/or provides timing requirements for the disclosure of exculpatory and/or impeachment material. In addition 

to requiring “broader” disclosure than Rule 16 provides for, several of these local 

rules and orders require “broader” disclosure than what is required by Brady and 

its progeny case law by eliminating the Brady “materiality” requirement and/or 

adding a time frame within which exculpatory and/or impeachment evidence 

must be disclosed.30 

 28. Fed. R. Crim. P. 16(a)(1)(D) & advisory committee’s note. 

 29. Note that our identification of “broader” rules and orders consisted of (1) searching 

sources available to the public (i.e., published local rules and standing orders posted on districts’ 

websites) and (2) verifying a limited number of orders not found on a district’s website but previously identified during our research for the 2007 FJC study of rules and orders. For the fifty-six 

districts in which we were unable to identify a local rule and/or standing order from our search of 

publicly available material, we did not contact these districts to verify the nonexistence of a formal 

or informal district-wide procedure or practice addressing the disclosure of exculpatory or impeachment information. In addition, for the thirty-eight districts in which we did identify 

“broader” rules and/or orders, we assume that the disclosure practice is followed district-wide. 

This assumption does not take into account the possibility that variation in disclosure practices 

may exist between divisions or different judges. 

 30. In Brady, the U.S. Supreme Court defined “exculpatory” evidence as any evidence favorable to a defendant and “material” evidence as being relevant to the question of the defendant’s 

guilt or the determination of a guilty defendant’s punishment. 373 U.S. at 87. Most recently, the 
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A. Scope of Disclosure 

1. Defined Approach 

Our analysis of the thirty-eight local rules and orders that establish “broader” disclosure requirements shows that thirty-one of these rules and orders adopt a “defined approach” for establishing the scope of the government’s obligation to disclose exculpatory and/or impeachment material. With regard to exculpatory information, all thirty-one rules and orders either: (1) specifically define the scope 

of disclosure by incorporating all or part of the Brady description of information 

that may be “favorable to an accused” and “material either to guilt or punishment” and/or by providing specific examples31 of “Brady” material [twenty-one 

districts32] or (2) generally define the scope of disclosure by requiring the disclosure of “Brady” material or exculpatory evidence in general with no definitions or 

examples [ten districts]. See Appendix B, Table 1, Groups 1 and 2, for a list of 

these districts. 

 An example of an order that defines disclosure of exculpatory information in 

more specific terms is the Pretrial Order for Criminal Cases in the Eastern District 

of Arkansas; this order states that “the Government must comply with its Constitutional obligation to disclose any information known to it that is material to the 

guilt or punishment of the defendant whether or not the defendant requests it. 

Brady v. Maryland . . .” On the other hand, the District of Hawaii’s Local Criminal 

Rule 16.1 defines the scope of disclosable exculpatory material more generally by 

requiring the government to provide “Brady material, as it shall be presumed that 

defendant has made a general Brady v. Maryland . . . request.” 

 Appendix B, Table 1, shows that most, but not all, of the thirty-one rules and 

orders with a defined scope of disclosure of exculpatory material also have a similar provision defining the scope of disclosure of impeachment material. Twenty-

 

Supreme Court has defined evidence as “material” when “there is a reasonable probability that, 

had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. 

United States, 129 S. Ct. 1769, 1783 (2009) (citing United States v. Bagley, 473 U.S. 667, 682 

(1985)). Neither Brady nor any of its progeny cases establish timing requirements for disclosure of 

exculpatory or impeachment evidence. 

 31. See D. Kan. General Order of Scheduling and Discovery, and D. Mass. Local Rule 116.2, for 

the most detailed descriptions and/or examples of exculpatory material among the thirty-one 

“broader” disclosure rules and orders. 

 32. Three districts within this group have rules or orders that explicitly require disclosure of 

exculpatory material “without regard to materiality,” while also requiring the disclosure of information “favorable to the defendant on the issues of guilt or punishment” to be “within the scope of 

Brady v. Maryland.” The potential for confusion exists because this language seems to be inconsistent if one interprets “within the scope of Brady v. Maryland” to include the Brady materiality requirement. See supra note 30; see also M.D. Ala. Standing Order on Criminal Discovery; S.D. Ala. 

Local Rule 16.13; N.D. Fla. Local Rule 26.3. 
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three of these rules and orders either: (1) specifically define the scope of disclosure 

of impeachment material by incorporating all or part of the Giglio description of 

“evidence affecting credibility” and/or by providing specific examples33 of “Giglio” 

material [fourteen districts]; or (2) generally define the scope of disclosure by requiring the disclosure of “Giglio” material or impeachment evidence in general 

with no definitions or examples [nine districts]. See Appendix B, Table 1, Groups 

3 and 4, for a list of those districts. 

 An example of an order listing specific examples of Giglio material is the Middle District of Alabama’s Standing Order on Criminal Discovery, which defines 

Giglio material as “[t]he existence and substance of any payments, promises of 

immunity, leniency, preferential treatment, or other inducements made to prospective witnesses, within the scope of Giglio v. United States . . .”34 Other districts’ 

rules or orders define the scope of disclosure for impeachment material in more 

general terms. For example, Northern District of West Virginia Local Rule of 

Criminal Procedure 16.06 requires the government to disclose all “Giglio material 

. . . not previously turned over in discovery. See Giglio v. United States . . .” 

2. Open-Ended Approach 

The remaining seven districts identified as having “broader” disclosure rules and 

orders have adopted a more open-ended approach to establishing the scope of the 

government’s disclosure obligations. Instead of defining the scope of disclosure by 

incorporating Brady and Giglio standards, these rules require broad disclosure of 

exculpatory material with no reference to either “Brady” or “Giglio” material and 

 33. For rules and orders with especially detailed descriptions and/or examples of impeachment material, see D. Kan. General Order of Scheduling and Discovery; D. Mass. Local Rule 116.2; 

W.D. Mo. Discovery Order and Stipulations and Orders; and D. Vt. Rule 16(d). 

 34. The Western District of Missouri adopted a unique version of this approach. In addition 

to disclosing “all evidence which may tend to adversely affect the credibility of any person called as 

a witness by the government pursuant to Giglio v. United States and United States v. Agurs, including the arrest and/or conviction record of each government witness, any offers of immunity or 

lenience, whether made directly or indirectly, to any government witness in exchange for testimony and the amount of money or other remuneration given to any witness,” the government 

must also stipulate as to whether or not it has made promises to witness(es) in exchange for money 

and agree to provide 

(a) the name(s) and address(es) of the witness(es) to whom the government has made a 

promise, (b) all promises or inducements made to any witness(es), (c) all agreements entered into with any witness(es), and (d) the amount of money or other remuneration 

given to any witness(es). If the witness is represented by counsel, the government also will 

provide discovery of the attorney’s name, address, and telephone number. As an alternative to providing witness-address information, the government agrees to make the witness(es) available for interview if the witness(es) agree(s) to being interviewed. 

W.D. Mo. Discovery Order and Stipulation and Orders.
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no citations or references to Brady v. Maryland and/or Giglio v. United States. For 

example, Southern District of Georgia Local Criminal Rule 16.1(f) requires the 

government, upon request, to “permit defendant’s attorney to inspect and copy or 

photograph any evidence favorable to the defendant.” Eastern District of North 

Carolina Rule 16.1 provides that, upon request of defendant’s counsel, the government must permit defendant’s counsel to inspect, copy, or photograph “any 

exculpatory evidence.” The Middle District of North Carolina adopted a unique 

approach with Local Rule 16.1 by requiring defendant’s counsel to include a statement that he/she has “fully reviewed the government’s case file” before filing a 

discovery motion. See Appendix B, Table 1, Approach 2, for a listing of these seven 

districts. 

B. Timing of Disclosure 

In addition to addressing the scope of the government’s disclosure obligations, all 

but three35 of the “broader” disclosure rule and orders require that the government disclose at pretrial any Brady (exculpatory) material and/or Giglio (impeachment) material.36 See Appendix B, Table 2. Fourteen districts apply this time 

frame to the disclosure of both Brady and Giglio evidence. See Appendix B, Table 

2, Group A. The Northern District of Florida’s Rule 26.3 provides an example of a 

rule or order that establishes one time frame for disclosure of both Brady and 

Giglio material: “the government’s attorney shall provide the following within five 

(5) days after the defendant’s arraignment, or promptly after acquiring knowledge 

thereof: (1) Brady Material . . . (2) Giglio Material . . .” Appendix B, Table 2A, 

shows the diverse range of time periods represented in these provisions, with 

“within 14 days after arraignment” being the most common [four districts37]. Additionally, “at arraignment”38 and “in time for effective use at trial”39 were each 

 35. See M.D.N.C. Local Crim. Rule 16.1; D.N.M. Rule 16.1 & Standard Discovery Order; 

D.N.D. Pretrial Order (Criminal). See also Appendix B, Table 2, Group D. 

 36. All of the timing provisions discussed above and included in Table 2 apply to the government’s pretrial disclosure obligations. Only two “broader” disclosure districts appear to establish discovery deadlines for disclosure prior to events other than the commencement of trial. 

Criminal Rule 16 in the Western District of Texas requires discovery in connection with pretrial 

release or detention “not later than the commencement of a hearing” on such; and discovery in 

connection with any other type of pretrial hearing must be made not later than forty-eight hours 

before the hearing. District of Massachusetts Rule 116.2’s timing schedule for disclosure specifies 

the exact nature of the exculpatory and/or impeachment material that must be disclosed twentyeight days after arraignment (Rule 116.2(B)(1)); twenty-one days before trial (Rule 116.2(B)(2)); 

by the close of defendant’s case (Rule 116.2(B)(3)); and before any plea or before defendant submits objections to the Presentence Report (Rule 116.2(B)(4)). 

 37. D. Conn., S.D. Fla., W.D. Tex., S.D. W. Va. 

 38. M.D. Ala., S.D. Ala. 
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adopted by two districts. Within five, seven, twenty-eight, and thirty days after 

arraignment,40 “at least 21 days before trial,”41 and “not less than 7 days before 

trial”42 were each chosen by a district. 

 The “broader” disclosure rules or orders of twenty-one districts establish a 

time frame that explicitly applies only to the disclosure of Brady (exculpatory) material. See Appendix B, Table 2, Group B. For example, the Eastern District of 

Michigan’s Standing Order for Discovery and Inspection and Fixing Motion Cut-Off 

Date in Criminal Cases requires that “[w]ithin ten (10) days from the date of arraignment, or such other date as may be set by the Judge to whom the case is assigned . . . [u]pon request of defense counsel the government shall . . . [p]ermit 

defense counsel to inspect, copy or photograph any exculpatory evidence within 

the meaning of Brady v. Maryland . . .” Appendix B, Table 2B, shows that again 

there is no clear “dominant time frame” among the rules and orders: four districts43 require disclosure of exculpatory material “within 14 days after arraignment”; three districts44 chose “within 10 days after arraignment”; “at arraignment,”45 “within 7 days after arraignment,”46 and “in time for effective use at 

trial”47 were each adopted by two districts. Only one district each chose “as soon as 

reasonably possible” (M.D. Ga.); “as soon as practicable upon arraignment and 

entry of a guilty plea” (D. Neb.); “within 10 days after not guilty plea” (W.D. 

Okla.); “within 14 days after a not guilty plea” (N.D. Cal.); “within 21 days after 

arraignment” (W.D. Mich.); “within 21 days after indictment or initial appearance—whichever later” (E.D.N.C.); “within 10 days from discovery order” 

(D.N.J.); and “at the pretrial conference” (D. N. Mar. I.). 

 Seven of these twenty-one districts with a time frame applicable only to the disclosure of exculpatory material have also established a distinct and separate time 

frame for disclosing Giglio impeachment material. See Appendix B, Table 2, Group 

C. For example, Northern District of New York Local Rule 14.1 requires the government to provide the defendant Brady material “[f]ourteen (14) days after arraignment, or on a date that the Court otherwise sets for good cause shown,” and 

Giglio material “[n]o less than fourteen (14) days prior to the start of jury selection, 

or on a date the Court sets otherwise for good cause shown.” These seven districts 

 

 39. E.D. Ark., E.D. Tenn. 

 40. N.D. Fla. (five days); D. Idaho (seven days); D. Mass. (twenty-eight days); D. Kan. (thirty 

days). 

 41. D.N.H. 

 42. W.D. La. 

 43. N.D.N.Y., M.D. Tenn., D. Vt., W.D. Wash. 

 44. E.D. Mich., W.D. Mo., N.D. W. Va. 

 45. W.D. Pa., E.D. Wis. 

 46. S.D. Ga., D. Haw. 

 47. N.D. Ga., W.D. Ky. 
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have different disclosure timetables for when the government must turn over exculpatory and impeachment material to the defendant. Appendix B, Table 2C, 

shows that two of these provisions48 require disclosure of impeachment material 

“not less than 14 days prior to jury selection.” The remaining provisions each chose 

a different time frame: “the evening before a witness’s anticipated testimony,”49 “no 

later than production of Jenck’s Act statements,”50 “as ordered by the court,”51 “no 

later than 15 days prior to trial,”52 and “in time for effective use at trial.”53

C. Elimination of Brady “Materiality” Requirement 

Brady does not require the prosecutor to disclose all exculpatory and impeachment information; the prosecutor need only disclose that which is “material either 

to guilt or to punishment.”54 The majority (twenty-eight) of the thirty-eight districts with expanded disclosure rules and orders requirements appear to incorporate the Brady “materiality” requirement by either (1) explicitly including the term 

“material” in the definition of exculpatory evidence; (2) implicitly citing to Brady; 

or (3) requiring disclosure to be “within the scope of Brady v. Maryland.” 

 The remaining ten “broader” disclosure districts appear to have eliminated the 

Brady materiality requirement from their disclosure rule or order. Appendix B, 

Table 3, shows that three districts55 appear to explicitly eliminate the Brady materiality requirement by qualifying the government’s obligation to disclose exculpatory information with the phrase “without regard to materiality.” For example, 

Southern District of Alabama Local Rule 16.13 requires the government to turn 

over to the defendant “[a]ll information and material known to the government 

which may be favorable to the defendant on the issues of guilt or punishment, 

without regard to materiality, within the scope of Brady v. Maryland, 373 U.S 83 

(1963).” Although “without regard to materiality” is not ambiguous, these two 

rules and one order also define the information and material required to be disclosed as that which may be “favorable to the defendant on the issues of guilt or 

punishment” and “within the scope of Brady v. Maryland.” If “within the scope of 

Brady v. Maryland” is interpreted to include the Brady materiality requirement, 

these two phrases appear to be inconsistent. 

 48. N.D.N.Y., D. Vt. 

 49. M.D. Ga. 

 50. N.D. Ga. 

 51. D. Haw. 

 52. W.D. Mo. 

 53. W.D. Mich. 

 54. Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v. Agurs, 427 U.S. 97, 112–13 

(1976); United States v. Bagley, 473 U.S. 667, 682 (1985); Kyles v. Whitley, 514 U.S. 419, 434 (1995). 

 55. M.D. Ala., S.D. Ala., N.D. Fla. See Appendix B, Table 3, Group A. 
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 In addition to the three “broader” disclosure districts that explicitly eliminate 

materiality, we have identified seven local rules or orders that implicitly suggest that 

materiality is not required. These rules or orders do not mention the need for disclosable evidence to be “material,” broadly require disclosure of “any exculpatory 

evidence” or “any evidence favorable to the defendant,” and do not mention or cite 

to Brady, Giglio, or any other of the Brady progeny cases. See Appendix B, Table 3. 

 Implicitly reading the Brady materiality requirement into these rules would 

seem contradictory to their open-ended approach to defining the scope of disclosure of exculpatory material.56 For example, Southern District of Georgia Local 

Criminal Rule 16 requires the government, upon request, to permit the defendant’s attorney to inspect and copy or photograph “any evidence favorable to the 

defendant.” Similarly, Western District of Pennsylvania Local Criminal Rule 16 

requires the government to notify the defendant of the existence of “exculpatory 

evidence” and permit its inspection and copying by the defendant. 

D. “Defense Request” Disclosure Prerequisite 

The Supreme Court has clarified that for Brady purposes, a defendant’s failure to 

make a request of the government for favorable evidence does not relieve the government of its obligation to turn over exculpatory evidence.57 However, under 

Rule 16 the defendant is only entitled to receive the information listed “upon request,” including documents and tangible objects “material to the preparation of 

his defense.”58 

 Although our research did not include an analysis of the scope of the adoption 

of each of Rule 16(a)’s provisions within the districts, we did examine the thirtyeight “broader” disclosure rules and orders to identify whether the rule or order 

incorporated Rule 16’s requirement for a defense request prior to disclosure. In 

keeping with Rule 16, seventeen of the twenty-nine “broader” disclosure rules and 

orders that addressed Rule 16(a) disclosure explicitly require the defendant to 

make a formal request for Rule 16(a) disclosure material. See Appendix B, Table 4, 

Group 1. However, six of these rules and/or orders59 also explicitly require the defendant to make a formal request for Brady and/or Giglio material,60 which appears 

contrary to Supreme Court precedent. For example, Western District of Washing-

 56. Note that our conclusion that these seven rules and orders appear to implicitly eliminate 

the Brady materiality requirement is based on our interpretation of these rules and orders only and 

has not been verified by court personnel in the respective districts. 

 57. United States v. Agurs, 427 U.S. 97 (1976). 

 58. Fed. R. Crim. P. 16(a)(1)(D). 

 59. M.D. Ga., N.D. Ga., S.D. Ga., E.D. Mich., E.D.N.C. 

 60. See Appendix B, Table 4, Group A. 
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ton Local Rule 16 requires the government to provide to the defense attorney “if 

requested” evidence favorable to the defendant and material to the defendant’s 

guilt or punishment to which he or she is entitled pursuant to Brady v. Maryland. 

Except for these six rules or orders, the remaining thirty-two “broader” rules and 

orders either (1) explicitly state that the defendant does not have to make a formal 

request for Brady material or (2) implicitly negate the need for a formal request by 

clearly requiring the government to disclose Brady (exculpatory) material within a 

specified time frame with no mention of whether a defense request is needed.61

 Not in keeping with Rule 16, twelve of the twenty-nine “broader” disclosure 

rules and orders that addressed Rule 16(a) disclosure either explicitly state that the 

defendant does not have to make a formal request for Rule 16(a) discovery material62 or implicitly negate the need for a formal request from the defendant for 

Rule 16 material by clearly requiring government disclosure of Rule 16 material 

within a specified time frame with no mention of whether a defense request is 

needed.63 Thus, these twelve districts form a group of districts referred to as 

“automatic disclosure districts.” In these districts, the government must disclose 

all required Rule 16(a) discovery material, including any exculpatory and impeachment material required to be disclosed pursuant to Brady and Giglio as defined in the rule or order, to the defendant regardless of whether the defense has 

requested it. For example, the District of Kansas’s General Order of Scheduling and 

Discovery makes it very clear that disclosure should be self-executing: “Unless otherwise specified, a request is not necessary to trigger the operation of this Order, 

notwithstanding Rule 16’s ‘upon request’ language. Thus, the absence of a request 

may not be asserted as a reason for noncompliance.” Similarly, District of New 

Hampshire Local Rule 16.1 requires the parties to disclose Rule 16(a) information 

“without waiting for a demand from the opposing party.” 

 To learn about the differences among the rules and orders that require broader 

disclosure, we asked the survey respondents to indicate whether there were significant differences between their local rule, order, or policy and Rule 16, and we also 

asked them to describe these differences. Twenty-five percent of judges, 25% of 

U.S. Attorneys’ Offices, and 34% of defense attorneys reported significant differences between their district’s local rule or order and Rule 16. The most frequent 

“significant differences” reported include: the timing of disclosure, the existence 

of an “open file” policy or practice, disclosure without regard to materiality, and 

the production of witness statements prior to trial. 

 61. See Appendix B, Table 4, Group B. 

 62. D. Haw., D. Kan., D.N.H., D.N.M., W.D. Tex., E.D. Wis. See Appendix B, Table 2, Group 2. 

 63. M.D. Ala., S.D. Ala., N.D. Cal., D. Mass., N.D.N.Y., D. Vt. See Appendix B, Table 2, Group 2. 
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IV. Need for an Amendment to Rule 16 

In order to address one of the Advisory Committee’s fundamental questions, we 

asked respondents whether they favored amending Rule 16 to address pretrial disclosure of exculpatory and Giglio information. 

A. Favored or Supported Amending Rule 16 

1. Judges 

Overall, judges were evenly split (51% in favor) regarding whether Rule 16 should 

be amended. Figure 1 shows that judges in the broader disclosure districts indicated greater support for amending Rule 16 than judges in traditional districts. 

Figure 1: Judges and Defense Attorneys Favoring an Amendment to Rule 16, by 

Type of District 

 We were also interested in examining a judge’s status and whether he or she 

believed that Rule 16 should be amended. As Table 1 shows below, at least 58% of 

the district judges in broader districts favored amending Rule 16, with only the 

chief district and magistrate judges expressing that preference in the traditional 

districts. 
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Table 1: Judges Favoring an Amendment to Rule 16, by Judge Status 

Broader Disclosure Districts 

Chief 

district 

judges 

(n=19) 

Active 

district 

judges 

(n=84) 

Senior 

district 

judges 

(n=32) 

Magistrate 

judges 

(n=83) 

Favor Amending Rule 16 58% 60% 63% 60% 

Traditional Rule 16 Districts 

Chief 

district 

judges 

(n=21) 

Active 

district 

judges 

(n=149) 

Senior 

district 

judges 

(n=77) 

Magistrate 

judges 

(n=145) 

Favor Amending Rule 16 75% 45% 32% 50% 

 Overall, the two most common reasons expressed by judges as to why an 

amendment is needed were (1) to eliminate confusion surrounding the use of materiality as a measure of a prosecutor’s pretrial disclosure obligations and (2) to 

reduce variation that currently exists across circuits. Some illustrative comments 

by judge respondents include: 

“An amendment is needed to protect well-meaning prosecutors from 

making inadvertent errors concerning materiality and disclosure that can 

be injurious to their reputations and careers.” 

• 

“The more clarity, the better. Additionally, a move toward a completely 

open file approach from the prosecution, with appropriate discovery 

from the defense, is more likely to lead to a fair result, which increases 

public confidence in the system.” 

• 

“An amendment is needed for basic fairness.” 

• 

“My concerns are based on what is reported from other districts, not 

what this court is experiencing.” 

• 
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“I would like to see an amendment that helped reduce variations that 

may exist between circuits, and one that will more specifically identify 

what items are or are not subject to disclosure.” 

2. Defense Attorneys 

Overall, more than 90% of defense attorneys favor an amendment. Specifically, 

92% of private attorneys and 97% of federal defenders in the broader disclosure 

districts favor an amendment. Similarly, 93% of private attorneys and 99% of federal defenders in traditional districts favor amending the rule. 

 The reason most commonly given by defense attorneys for favoring an 

amendment was that it will eliminate the confusion surrounding the use of materiality as a measure of a prosecutor’s pretrial disclosure obligations. Some illustrative comments include:

“There are no downsides to an amendment as district judges can easily 

remedy any prosecutorial concerns with orders regarding the timing of 

disclosure in certain cases and/or protective orders.” 

• 

“Whether the Government or CJA Counsel, we are all ‘protecting the 

U.S. Constitution.’ Therefore, gamesmanship should never play a part in 

any criminal case. Amendment of the Discovery Rules to prevent such 

conduct is essential.” 

• 

“I am concerned about cases where Brady and Giglio information are not 

discovered and we never find out about it. There should be a clear rule in 

place. Sometimes prosecutors, defense attorneys, and judges differ on the 

definition of materiality.” 

 The timing of disclosure was another common reason offered by defense attorneys regarding the need for an amendment. One attorney from a broader disclosure district commented: “[a]n amendment for early disclosure, like in the state 

system, is needed so defense will understand all the evidence against his/her client 

early on and the defendant can then make informed choices how to proceed in the 

matter.” An attorney from a traditional district said: “I believe the real issue is timing. The district judges give the government wide latitude in when to disclose 

Brady and Giglio information. Almost 100 percent of the time the discovery is delayed until just before trial starts.” 

 Finally, a considerable number of comments addressed creating a more efficient process and providing effective assistance of counsel through pretrial preparation. Some examples include: 
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“An amendment is needed because prompt pretrial disclosure of discovery facilitates settlement and promotes efficient use of resources by the 

government, the defense, and the courts.” 

• 

“It should limit appellate review of these issues.” 

• 

“Early disclosure facilitates open and meaningful plea negotiations that 

ultimately will save resources on both sides.” 

B. Opposed Amending Rule 16 

1. Judges 

Overall, 49% of judges responded that they oppose amending Rule 16; however, 

56% of the district judges in traditional districts oppose an amendment, compared 

to 40% of the district judges in broader disclosure districts. 

 The two most common reasons expressed by judges opposed to an amendment 

were that there has been no demonstrated need for a change and that the current 

remedies for prosecutorial misconduct are adequate. One judge commented that 

“[a]n amendment is not needed because it will just cause needless haggling over the 

meaning of the language of the amendment, when the obligations are already clear.” 

Another judge indicated that “[o]rdinarily, the communications between the prosecutor and defense counsel are constructive enough to prevent the kind of abuses referenced here and the court is drawn into these issues only infrequently, if at all.” 

2. Defense Attorneys 

Approximately 7% of all defense attorneys who responded to the survey oppose 

amending Rule 16. Breaking out the data by type of district, we found that in the 

broader disclosure districts, 3% of federal defenders oppose amending Rule 16, 

compared to 8% of private attorneys. In traditional districts, 1% of federal defenders oppose an amendment, compared to 7% of private attorneys. 

 Overall, defense attorneys’ most commonly given reason for opposing an 

amendment was that there has been no demonstrated need for a change. Some 

illustrative comments: 

“The case law establishes the obligation for production. I would not want 

to change the rule by applying a ‘one size fits all’ approach.” 

• 

“I believe the current state of the law properly balances defendants’ rights 

with our moral obligation to try to insure witness safety and the integrity 

of the process. No change is warranted.” 
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3. Department of Justice 

Although individual U.S. Attorney Offices provided responses to other sections of the 

FJC survey, the DOJ provided one response for the entire agency regarding potential 

amendments to Rule 16. DOJ reported that it opposes any type of amendment to Rule 

16, stating that an amendment is not needed because (1) there has been no demonstrated need for change; (2) the current remedies for prosecutorial misconduct are sufficient; and (3) the recent reforms put into place by the Department of Justice will decrease disclosure violations so that the need for an amendment to Rule 16 is negated. 
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V. Perceptions Regarding Attorneys’ Comprehension 

of Disclosure Obligations Pursuant to District Court 

Local Rules, Orders, and Case Law 

The two major reasons defense attorneys have argued for an amendment are the 

variation in disclosure practices, sometimes in the same district, and perceived 

inconsistencies regarding how federal prosecutors carry out their disclosure obligations. 

 Overall, judges were overwhelmingly positive about federal prosecutors’ understanding of their disclosure obligations. Over 94% of judges expressed the view 

that federal prosecutors usually or always understand their disclosure obligations. 

Figure 2: Perceptions Regarding Federal Prosecutors’ Comprehension of 

Disclosure Obligations 

 Interestingly, the defense bar on the whole concurred with judges and expressed the view that federal prosecutors always or usually understand their disclosure obligations. However, federal defenders expressed less agreement than did 

private counsel (see Appendix C, Table 8). 

 We also asked respondents to indicate how well they believe the federal prosecutors in their district follow a consistent approach to disclosure. Table 2 below 
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shows that overall, 88% of judges believed that federal prosecutors usually or always follow a consistent approach to disclosure. Responses from the defense bar 

were mixed. In broader disclosure districts, 70% of private attorneys believed federal prosecutors are usually or always consistent. Only 44% of federal defenders 

expressed this view, and 18% of federal defenders believe federal prosecutors are 

rarely consistent. In traditional districts, 52% of private attorneys responded that 

the government is usually or always consistent, compared to 25% of federal defenders. Twenty-eight percent of federal defenders indicated that the government 

is rarely consistent. 

Table 2: Perceptions Regarding Whether Federal Prosecutors Follow a Consistent 

Approach to Disclosure 

Broader Disclosure Districts Traditional Rule 16 Districts

All 

judges 

(n=225) 

District 

judges 

(n=138) 

Magistrate 

judges 

(n=87) 

All 

judges 

(n=402) 

District 

judges 

(n=257) 

Magistrate 

judges 

(n=145) 

Always 32% 37% 25% 35% 35% 34% 

Usually 56% 54% 60% 53% 56% 48% 

Sometimes 9% 7% 13% 9% 7% 14% 

Rarely 2% 1% 2% 2% 2% 3% 

Never - - - - - - 

 

Broader Disclosure Districts Traditional Rule 16 Districts

All 

attorneys 

(n=1,960) 

Federal 

defenders 

(n=207) 

Private 

attorneys 

(n=1,753) 

All 

attorneys 

(n=3,183) 

Federal 

defenders 

(n=403) 

Private 

attorneys 

(n=2,780) 

Always 16% 2% 18% 9% 1% 10% 

Usually 50% 42% 52% 40% 24% 42% 

Sometimes 24% 34% 22% 29% 37% 28% 

Rarely 8% 18% 7% 17% 28% 16% 

Never 2% 4% 2% 4% 9% 3% 

 Judges reported slightly lower rates of comprehension by defense attorneys 

compared to federal prosecutors. Specifically, 78% of judges in broader disclosure 

districts and 79% of judges in traditional districts reported that defense attorneys 

usually or always understand their disclosure obligations. In contrast, 38% of U.S. 

Attorneys’ Offices in broader disclosure districts and 53% in traditional districts 

expressed the view that defense attorneys rarely understand their disclosure obligations. 
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Figure 3: Perceptions Regarding Defense Attorneys’ Comprehension of Disclosure 

Obligations 
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VI. Attorneys’ Compliance with Specific Disclosure 

Obligations 

A. Frequency of Cases Over the Past Five Years in Which the Court 

Concluded Attorneys Failed to Comply with Disclosure Obligations 

We asked judges to estimate the number of cases over the past five years in which 

the judges concluded that the attorneys had failed to comply with their disclosure 

obligations. 

 Overall, judges do not believe that attorneys are failing to comply with their 

disclosure obligations. Specifically, the data showed that 61% of all judges from 

broader disclosure districts and 74% of all judges from traditional districts reported having no cases over the past five years in which they believed that federal 

prosecutors failed to comply. Similarly, 64% of all broader disclosure judges and 

68% of all traditional judges reported having no cases over the past five years in 

which defense attorneys failed to comply with their disclosure obligations. 

B. Nature of Most Frequently Mentioned Disclosure Violations by Federal 

Prosecutors 

The two most frequently mentioned disclosure violations committed by federal 

prosecutors, as reported by judges in both broader and traditional disclosure districts, were failure to disclose on time and scope of disclosure. Failure to disclose at all

was the most frequent violation identified by defense attorneys in both types of 

districts. Failure to disclose on time was the most frequent violation identified by 

U.S. Attorneys’ Offices in the broader disclosure districts, while failure to disclose 

at all was the most frequent violation identified by prosecutors in the traditional 

Rule 16 districts. 
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Figure 4: Nature of Most Frequently Mentioned Disclosure Violations by Federal 

Prosecutors, by Type of District 

C. Nature of Most Frequently Mentioned Disclosure Violations by Defense 

Attorneys 

The two most frequently mentioned disclosure violations committed by defense 

attorneys identified by judges in both broader and traditional districts were failure 

to disclose on time and failure to disclose at all. Failure to disclose on time was the 

most frequent violation identified by defense attorneys, while failure to disclose at 

all was the most frequent violation reported by U.S. Attorneys’ Offices. 
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Figure 5: Nature of Most Frequently Mentioned Disclosure Violations by Defense 

Attorneys, by Type of District 

 

D. Remedies Imposed for Disclosure Violations 

Rule 16 grants the courts discretion to issue sanctions or other orders “as are just” 

in the event the government fails to comply with a discovery request made under 

the rule.64 We asked the survey respondents to indicate the remedial steps taken by 

the court after concluding a disclosure violation had occurred. 

 In both types of districts and by all types of respondents, the two most frequently reported remedies imposed by judges for disclosure violations attributed 

to the government or to the defense were ordering immediate disclosure of material or information and ordering a continuance (see Appendix C, Table 26). Other 

remedies imposed, albeit less frequently, included: admonishing attorneys; excluding evidence; issuing a specific jury instruction; dismissing charges; ordering in 

camera review of material; ordering a hearing to suppress the material in question; 

expanding cross-examination; granting new penalty phase; vacating conviction; 

and ordering a new trial. 

 Judges reported that they rarely hold an attorney in contempt, and seldom report an attorney’s conduct to the Department of Justice’s Office of Professional 

Responsibility (OPR), bar counsel, or some other disciplinary body. 

 64. Fed. R. Crim. P. 16(d)(2). 
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E. Perceptions Regarding Overall Compliance by Attorneys 

1. Federal Prosecutor Compliance 

Overall, 90% of judges were satisfied or very satisfied with federal prosecutor compliance with disclosure obligations. The responses from defense attorneys were 

mixed. Sixty-four percent of private attorneys and 36% percent of federal defenders in broader disclosure districts were satisfied or very satisfied with prosecutor 

compliance, but 33% of federal defenders reported being dissatisfied or very dissatisfied. In traditional districts, 43% of private attorneys were either satisfied or very 

satisfied with prosecutor compliance while 51% of the federal defenders reported 

being either dissatisfied or very dissatisfied (see Appendix C, Table 27).

Figure 6: Perceptions Regarding Overall Compliance by Federal Prosecutors 

2. Defense Attorney Compliance 

Seventy-nine percent of judges in broader disclosure districts and 80% of judges in 

traditional districts were satisfied or very satisfied with defense attorney compliance 

with disclosure obligations. In contrast, 73% of U.S. Attorneys’ Offices in broader 

disclosure districts and 71% of U.S. Attorneys’ Offices in traditional districts were 

dissatisfied or very dissatisfied with defense attorney compliance with their disclosure obligations. Ten percent or less of the U.S. Attorneys’ Offices reported that 

they were satisfied with defense attorney compliance. 
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Figure 7: Perceptions Regarding Overall Compliance by Defense Attorneys 
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VII. Other Selected Issues in Broader Disclosure 

Districts 

This section takes a closer look at districts whose local rules and orders have 

broader disclosure requirements than Rule 16. The Advisory Committee was especially interested in districts that have eliminated the materiality requirement as 

well as districts that have specific timing requirements regarding disclosure. 

A. Elimination of the Materiality Requirement 

Brady does not require the prosecutor to disclose all exculpatory and impeachment information; the government need only disclose that which is “material either to guilt or to punishment.”65 How the government determines what information and evidence is “material” has been a topic subject to much discussion. 

 Question 19 of the government survey asked federal prosecutors to describe 

how they determine whether information is material under the Constitution in 

their district. Eighty of the eighty-five U.S. Attorneys’ Offices (94%) responded. 

Data revealed that prosecutors use six general approaches to determine whether 

information is material. The most common disclosure approach reported by the 

U.S. Attorneys’ Offices was providing discovery to the defense without regard to 

materiality, e.g., “[we] err on the side of disclosure regardless of materiality.” In 

the second most common approach, a number of the U.S. Attorneys’ Offices 

noted their district’s formal/informal adoption or encouragement of an “open 

file” policy or practice. The third most frequent approach reported was that prosecutors consulted with their supervisor, the designated discovery expert, or peers, 

to determine if questionable material should be disclosed. The next two most frequently reported approaches were that prosecutors analyzed questionable material 

to determine if such material could potentially affect the outcome of a case, followed by analyzing information pursuant to specific Department of Justice directives and training materials. The final two approaches, mentioned least frequently, 

were that prosecutors based disclosure of Brady/Giglio information on whether 

the information would be helpful or favorable to the defense, rather than based on 

materiality; and, where there was a concern about materiality, prosecutors submitted materials to the court for an in camera review. 

 The 2007 proposed amendment to Rule 16 removes the materiality language 

found in the current version of Rule 16. The proposed amendment was based on 

 65. Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v. Agurs, 427 U.S. 97, 112–13 

(1976); United States v. Bagley, 473 U.S. 667, 682 (1985); Kyles v. Whitley, 514 U.S. 419, 434 

(1995). 
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the principle that fundamental fairness is enhanced when the defense has access 

before trial to any exculpatory and impeaching information known to the prosecution. 

 As was earlier reported, we found that three districts (M.D. Ala., S.D. Ala., and 

N.D. Fla.) appear to explicitly eliminate the Brady materiality requirement by 

qualifying the government’s obligation to disclose exculpatory information with 

the phrase “without regard to materiality.” Additionally, seven districts have local 

rules or orders that implicitly suggest materiality is not required because the rules 

and orders do not mention the need for disclosable evidence to be “material” and 

broadly require disclosure of “any exculpatory evidence” or “any evidence favorable to the defendant” and do not mention or cite to Brady, Giglio, or any of the 

Brady progeny cases.66

 To learn more about the experiences of these districts, we asked defense attorneys whether elimination of the materiality requirement for exculpatory or impeachment evidence reduced problems or confusion in the prosecution’s pretrial 

discovery analysis. Seventy-one percent of defense attorneys expressed the view 

that the elimination of the materiality requirement has reduced problems in most 

or some cases in their districts. Sixty percent of the U.S. Attorneys’ Offices reported that the elimination of the materiality requirement has made no difference. 

 Further, we asked defense attorneys whether eliminating the Brady materiality 

requirement would result in changes in the frequency of defense motions for 

Brady violations. Table 3 below shows that almost half of the defense attorneys in 

both types of districts reported that they believe motions for Brady violations 

would decrease. 

 66. N.D. Cal., S.D. Ga., E.D.N.C., M.D.N.C., W.D. Pa., S.D. W. Va., E.D. Wis. 
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Table 3: Effect of Eliminating the Brady Materiality Requirement on Filing of 

Defense Motions for Brady Violations 

Broader Disclosure Districts

All 

attorneys 

(n=1,931) 

Federal 

defenders 

(n=204) 

Private 

attorneys 

(n=1,727) 

Motions would increase 18% 9% 19% 

Motions would stay the same 28% 30% 28% 

Motions would decrease 48% 51% 47% 

Other 6% 9% 6% 

 

Traditional Rule 16 Districts

All 

attorneys 

(n=3,122) 

Federal 

defenders 

(n=393) 

Private 

attorneys 

(n=2,729) 

Motions would increase 20% 15% 20% 

Motions would stay the same 28% 28% 28% 

Motions would decrease 46% 46% 46% 

Other 7% 11% 6% 

B. Timing of Disclosure Issues 

1. Perceived Problems for the Prosecution 

We asked respondents in districts with local rules that require prosecutors to disclose exculpatory or impeaching information within a fixed time after indictment 

or arraignment whether the timing requirement had caused problems for the 

prosecution. Forty-one percent of judges and 26% of U.S. Attorneys’ Offices in 

these districts reported that the timing requirement had caused no problems. 

Three percent of judges and 17% of U.S. Attorneys’ Offices indicated that the timing had caused serious problems in some cases. No judges and no U.S. Attorneys’ 

Offices in these districts reported that the timing of disclosure had caused serious 

problems in the majority of cases. 
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Figure 8: Timing of Disclosure and Perceived Problems for the Prosecution 

2. Government Witness Cooperation 

We asked the U.S. Attorneys’ Offices to estimate how often in the past five years 

they were unable to obtain cooperation from a witness because of a local rule’s 

disclosure timing requirements. Forty-five percent of U.S. Attorneys’ Offices reported that they had rarely been unable to obtain cooperation from a witness because of the timing requirement, and 40% reported never having a problem obtaining cooperation from a witness. 

3. Judges’ Perceptions Regarding Harm to Prosecution Witnesses 

We asked judges to estimate the number of cases in the past five years in which 

their local rule requirements regarding disclosure of exculpatory and impeachment information had resulted in threats of harm to a prosecution witness. Seventy-three percent of all judges reported no threats or harm to a prosecution witness as a result of the timing requirements of the disclosure of exculpatory material. Eleven percent reported threats or harm to a witness in two to four cases, and 

1% reported threats or harm in eleven to twenty cases. 

 Similarly, in districts with local rules that require early disclosure of impeachment material, 73% of all judges reported no threats or harm to a witness, and 

15% reported threats or harm in two to four cases. 
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4. Government’s Request for Protective Orders Prohibiting or Delaying Required 

Disclosure 

We asked attorneys to estimate the number of cases in the past five years in which 

the government requested a protective order prohibiting or delaying required disclosure based on witness safety or other security concerns (see Appendix C, Table 

20). Fifty-two percent of all defense attorneys in broader disclosure districts and 

56% in traditional districts reported that the government had requested no protective orders in the past five years. A little over 20% had requested protective orders in two to four cases, and less than 3% in more than 20 cases. In contrast, in 

broader disclosure districts 20% of the U.S. Attorneys’ Offices reported requesting 

protective orders in five to ten cases, and 15% in more than twenty cases. In traditional districts, U.S. Attorneys’ Offices requested protective orders in fewer cases: 

16% in two to four cases, and 9% in more than twenty cases in the past five years. 
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VIII. Disclosure of Witness Statements 

Variation exists among the district courts’ local rules regarding the scope and production of witness statements. At a recent symposium, participants covered the 

disclosure of witness statements and “agreed that [current] statutes were too narrow insofar as they ordered the production only of statements of witnesses whom 

the prosecution intended to call as witnesses.”67 In addition, the participants expressed the view “that disclosure should not be limited to recorded and transcribed statements or to formal reports of witnesses’ statements, and that in some 

cases, unrecorded statements should be disclosed.”68 Finally, many participants, 

but not all, thought that the “prosecution should disclose the statements of all individuals with relevant, and potentially useful information.”69

 To learn more about survey respondents’ perceptions regarding the different 

types of witness information that should be disclosed, we asked respondents: 

(1) whether information about a victim’s or witness’s background that would not 

be admissible in evidence and that does not bear directly on the witness’s testimony should be disclosed; (2) whether allegations of misconduct by law enforcement witnesses should be disclosed; and (3) whether all impeachment information 

concerning defense witnesses should be disclosed. DOJ chose to provide one response to these questions rather than having individual U.S. Attorneys’ Offices 

respond. 

 Twenty-eight percent of all judges in the broader disclosure districts and 36% 

of all judges in the traditional districts indicated that victim or witness background information should be disclosed, compared to 89% of all defense attorneys 

in the broader disclosure districts and 87% in the traditional districts. 

 Approximately 35% of judges in broader and traditional districts thought allegations of misconduct by law enforcement witnesses should be disclosed, compared 

to 88% of defense attorneys. 

 DOJ expressed the view that both types of information should not be disclosed. 

 Finally, approximately 50% of judges in both types of districts responded that 

all impeachment evidence concerning defense witnesses should be disclosed; however, almost 20% did not know. About 42% of defense attorneys expressed the 

view that such information should be disclosed. DOJ indicated that impeachment 

information in the possession of the defense should be disclosed at a time and in a 

manner consistent with the government’s obligation regarding the disclosure of 

impeachment information. 

 67. See supra note 19, at 1967. 

 68. Id. 

 69. Id. 
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IX. Impact of the 2007 Advisory Committee Proposal 

on Cooperating Witnesses and Crime Victims 

In 2007, the Advisory Committee proposed the following amendment to Rule 16, 

which was not approved by the Judicial Conference’s Standing Committee on 

Rules of Practice and Procedure: 

Rule 16. Discovery and Inspection 

(a) GOVERNMENT’S DISCLOSURE. 

(1) INFORMATION SUBJECT TO DISCLOSURE. 

... 

(H) Exculpatory or Impeaching Information. Upon a defendant’s request, the government must make available all information that is known to the attorney for the government or agents 

of law enforcement involved in the investigation of the case that 

is either exculpatory or impeaching. The court may not order 

disclosure of impeachment information earlier than 14 days before trial. 

 Although the Standing Committee did not approve the amendment as written, 

the Advisory Committee was interested in learning the possible effects of such an 

amendment on cooperating witnesses and crime victims. 

 Toward that end, we asked respondents what effect, if any, they thought the 

amendment might have on the privacy and security of cooperating witnesses and 

crime victims. Respondents provided hundreds of pages of comments, which we 

analyzed for content and then coded. Below is a summary and sample of the comments. 

A. Effects on Cooperating Witnesses 

1. Views of Judges 

We received responses from 497 judges: 315 from traditional districts and 182 

from broader disclosure districts. In traditional districts, 15% of the judges expressed the view that the proposed 2007 amendment would have a negative impact 
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on the privacy and safety of cooperating witnesses, and 19% answered that the 

amendment could potentially have a negative effect. The security concerns most 

frequently cited by judges who reported that the amendment would or could potentially have a negative effect include intimidation, harassment, tampering, and 

threats of physical harm or danger. Other judges indicated the amendment would 

have a definite “chilling effect” on cooperating witnesses, making them less likely 

to cooperate. While privacy concerns were cited less often, several judges felt the 

amendment would result in the unnecessary disclosure of cooperating witnesses’ 

names in cases that settle prior to trial. 

 In broader disclosure districts, 9% of the judges responded that the 2007 

amendment would have a negative impact on cooperating witnesses, and 16% of 

the judges responded that the amendment could potentially have a negative impact. Again, increased security concerns were cited most often, followed by reluctance to cooperate and privacy concerns. In addition, several judges commented 

that cooperating witnesses would face an even greater threat of harm in certain 

types of cases, such as drug conspiracy cases. 

 A total of 45% of judges from traditional districts indicated that the 2007 

amendment would have either a minimal effect (14%), a potential negative effect(s) 

that could be adequately addressed with existing remedies (6%), or no effect (25%) 

on cooperating witnesses’ security or privacy. Judges providing further comment 

explained that the amendment reflects the current practice in their district, that 

protective orders or other court-ordered protections could be issued to reduce or 

eliminate any security or privacy concerns, that these disclosures were already being made under Brady constitutional obligations, or that in most cases the identity 

of the cooperating witness is already known by the defendant. 

 In broader disclosure districts, a total of 54% of judges reported that the 

amendment would have a minimal effect on cooperating witnesses (22%), no effect at all (25%), or any potential negative effects could be neutralized by courtordered protective measures and by modifying the timing of disclosure (7%). Judges 

commented that the amendment would have very little or no impact on cooperating witnesses because the amendment reflects the current practice in their district; 

or represents the status quo under Brady; the identity of cooperating witnesses is 

already known; and/or the court can address security or privacy concerns on a 

case-by-case basis through protective orders or by delaying disclosure. 

 Three percent of judges in traditional disclosure districts and 2% of judges in 

broader disclosure districts reported that the effect the amendment would have on 

cooperating witnesses’ security and/or privacy depends on the facts of each case: “It 

varies with the nature of the case. In organized crime cases, the danger may be 

very real. In white collar crime cases, not so, if at all.” One attorney commented 

that “in some cases, [there could be] very serious effects; in most, none. That is 

why it should be left to judicial discretion.” In addition, while not addressing the 
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specific effect the amendment might have on cooperating witnesses, 3% of judges 

in traditional districts and 5% of judges in broader disclosure districts indicated 

that the proposed 2007 amendment needs more flexibility to either prevent or address privacy and/or security concerns of cooperating witnesses: “As written, this 

proposed rule does not make any provision for delayed disclosure of information 

where there is a substantial good faith reason to believe that early disclosure will 

jeopardize the safety of a person or undermine the security of the grand jury.” 

And “[Fourteen] days is the appropriate length of time for most cases but not all.” 

2. Views of Defense Attorneys 

The most frequent response by defense attorneys in both traditional and broader 

disclosure districts is that the proposed amendment would have no adverse effect 

or negative impact upon the privacy and safety of cooperating witnesses. Initially, 

this result appears straightforward, as there are a significant number of responses 

that don’t provide any further explanation beyond “no effect,” “none,” “zero,” 

“absolutely no effect whatsoever,” and “negligible” to name a few. However, a 

closer reading of the explanations shows a distinction between two groups of attorneys. One group believes that the proposed amendment might not result in any 

harm to a cooperating witnesses’ privacy or security. Another group admits that 

the proposed amendment will or could have a negative or harmful effect on the 

privacy/security of cooperating witnesses, but that the end result will be “no negative effect” because the courts, prosecutors, and cooperating witnesses have tools 

to address these concerns adequately on a case-by-case basis. Attorneys in this latter category seem to view the mitigation of negative effects as a case-management 

issue. 

 Among attorneys who view this as a case-management issue for the courts and 

the prosecution, the most frequently identified approach is the use of case-specific 

protective orders. These orders can delay inappropriate further disclosure by defense or limit disclosure to defense counsel only; they may also prohibit disclosure 

to a client or other third parties until a reasonable time. Other potential remedial 

steps identified by respondents included disclosing information to the court or 

viewing documents in camera; redacting addresses, names, and other identifying 

information from documents; and placing a witness in the witness protection program or other secure location. Finally, these attorneys pointed out that guidelines 

and statutes with severe criminal penalties already prohibit obstruction of justice, 

witness tampering and harm to potential witnesses. 

 More generally, the most frequent explanation as to why the proposed 

amendment wouldn’t cause harm to cooperating witnesses is that almost all defendants and defense counsel are aware of the identity of a cooperating witness 

long before the proposed rule requires disclosure of impeaching and exculpatory 
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evidence. Another reason frequently cited by these attorneys is that the identity of 

the witnesses who will testify must be revealed eventually, thus there is little difference between disclosure close to trial and disclosure during trial. 

 Among the attorneys, the second largest category of responses was that the 

amendment would have “minimal,” “very little,” “not significant,” or “almost no[]” 

impact on cooperating witnesses’ privacy and security. One of the two most frequent explanations for why the amendment would have very little effect was that if 

there was reliable information that a witness’s privacy or security was at risk, the 

government could seek protection for that witness. A prosecutor can ask the court 

for a tailored protective order, seek permission to redact addresses or other information specific to that witness, or submit material in camera and seek delayed disclosure. The other most frequent reason given to explain a negligible effect on witness security was that the identity of the cooperating witnesses is often known to 

defense counsel and to the defendant more than fourteen days before trial or can 

easily be deduced from other discovery material. Further, the identity of the cooperating witness will be known eventually if the case goes to trial since he or she will 

testify. 

 The next largest category of responses from defense attorneys in both traditional and broader disclosure districts was surprisingly consistent in both message 

and language. These attorneys reported that the proposed amendment will or 

could have a negative or harmful effect on the privacy or security of cooperating 

witnesses, but this potential impact should be balanced against a defendant’s constitutionally guaranteed due process right to a fair trial and the defendant’s Sixth 

Amendment guarantee to cross-examine any witness testifying against him or her 

at trial. Similarly, a number of attorneys expressed the view that the potentially 

harmful effects of the amendment on the privacy (and to a lesser extent security) 

of a cooperating witness should be tolerated because a cooperating witness has a 

diminished expectation of privacy by virtue of his or her agreeing to testify in a 

public trial and possibly accepting any benefits provided by the prosecution for 

this cooperation (e.g., reduced sentence). 

 Although fewer in number than those who said there would be no effect or a 

minimal effect, a large number of attorneys in both traditional and broader disclosure districts felt that the amendment would or potentially could have a negative 

impact on cooperating witnesses’ privacy and security. These attorneys pointed 

out that cooperating witnesses’ identities could be revealed well before trial and 

that defense attorneys could attempt to interview them and contact their families. 

These attorneys also noted that divulging impeachment evidence will affect the 

privacy of cooperating witnesses by possibly revealing any embarrassing misdeeds 

from the witnesses’ past. Other negative impacts of the amendment cited by attorneys include an increased risk of retaliation, increased fear that cooperating witnesses’ residences would be compromised, chilled cooperation by codefendants, 
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and increased risk of intimidation if the cooperating witness is in custody waiting 

to testify. Attorneys who cited these reasons for responding that the amendment 

potentially might or may have an adverse effect explain that the amendment could 

have “dire implications” in cases involving violent crimes, multidefendant conspiracy cases, gang-related cases, or cases against drug cartels or organized crime. 

The amendment could also affect privacy if disclosed impeachment information 

dealt with mental health, infidelity or employment-related issues. Lastly, these attorneys felt the amendment could prevent people from becoming informants 

(who expect their role to remain hidden by law enforcement) if their identity will 

be disclosed to potentially dangerous defendants. 

 Attorneys reporting that the amendment would have a positive impact on the 

privacy and security of cooperating witnesses formed the smallest group of respondents in both traditional and broader disclosure districts. They pointed out 

that requiring the production of exculpatory or impeachment information will 

help ensure that cooperating witnesses are telling the truth in their statements to 

federal agents and law enforcement officers because the defense will have more 

opportunity to review the accuracy of their information. This additional scrutiny 

will help ensure that witnesses are more reliable and will help ensure their security 

and the security of others. Other attorneys explained that the courts’ inability to 

compel disclosure of impeachment information earlier than fourteen days before 

trial will mean more privacy and security for cooperating witnesses because it only 

leaves defense with two weeks to investigate them based on the newly compelled 

discovery. In addition, it was stated that the amendment may help end speculation 

and dispel mistaken assumptions where people are endangered because they are 

believed to be cooperating when they are not. 

B. Effects on Crime Victims 

The Crime Victims’ Rights Act (CVRA), codified at 18 U.S.C. § 3771, provides 

that a crime victim has “[t]he right to be treated with fairness and with respect for 

the victim’s dignity and privacy.”70 DOJ has commented that the broad nature of 

the Advisory Committee’s proposed disclosure requirement will “directly conflict 

with a liberal reading of the CVRA’s policy to protect a victim’s privacy and with 

its stated purpose of affording victims’ rights comparable to those afforded to the 

defendant.”71 

 Further, DOJ has expressed the view that “[u]nder the proposal, all information (not merely admissible evidence) that might be used to impeach a victimwitness must be provided to the defense, regardless of materiality. This implies 

 70. 18 U.S.C. § 3771(a)(8) (2004). 

 71. See supra note 11, at 22–23. 
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that any information that might possibly be used to disparage, discredit, or dispute a victim’s testimony will be disclosed to the defense, without any regard to 

whether such information would increase confidence in the outcome of the trial 

or even be admissible at trial.”72 

1. Views of Judges 

Overall, 471 judges responded to this question: 300 judges from traditional districts and 171 from broader disclosure districts. Eleven percent of the judges from 

traditional districts expressed the view that the proposed 2007 amendment would

have a negative impact on crime victims’ security and/or privacy, and 18% felt 

that the amendment could potentially have a negative impact. The security concerns most frequently cited by these judges include harassment, victim intimidation, retaliation, and threats of physical harm or violence to victims and their 

families. Other judges commented that the potential for a “chilling effect” may 

result in victims refusing to testify because they are too scared. While privacy concerns were raised less often than concerns over the victims’ personal safety, several 

judges noted the increased potential of unnecessary disclosure of the identity and 

location of crime victims as well as the premature disclosure of medical records 

that would not be admissible at trial. 

 In broader disclosure districts, 8% of the judges responded that the proposed 

2007 amendment would have a negative impact on crime victims, and 14% of the 

judges responded that the proposed 2007 amendment could potentially have a 

negative impact. Many of these judges raised the same concerns as judges in traditional districts, including increased risk for retaliation, harassment, and physical 

danger, followed by decreased willingness to assist or seek assistance from the 

criminal justice system and privacy concerns. In addition, several judges raised the 

concern over the anxiety and fear of embarrassment resulting from the automatic 

disclosure of certain types of information, such as the mental health history of a 

victim. 

 A total of 51% of judges in traditional districts indicated that the proposed 

2007 amendment would have a minimal effect (15%) on crime victims’ security or 

privacy, no effect (29%), or a potentially negative effect(s) that could be adequately 

addressed with existing remedies (7%). 

 Some of the judges commented that any potential risk to crime victims from 

the proposed amendment could be adequately addressed by seeking the court’s 

assistance prior to disclosure. Judges in traditional districts who reported that the 

proposed 2007 amendment would have no significant impact on crime victims’ 

security or privacy explained that the information was already being disclosed 

 72. Id. at 22. 
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pursuant to the districts’ current policy; that the government was already obligated to disclose the information under Brady; that the government could adequately protect crime victims by requesting protective orders; and that the identity 

of crime victims is already known to the defendant in most cases. 

 A total of 57% of judges from broader disclosure districts believe that the 

amendment will have a minimal effect on crime victims (25%), no effect at all 

(26%), or that any potential negative impact can be neutralized by court-ordered 

protective measures and/or by modifying the timing of disclosure (6%). Similar 

explanations were provided by respondents from broader disclosure districts as 

given by those judges in traditional districts as to why they felt the amendment 

would have very little or no impact on crime victims: the identity of crime victims 

is already known in most cases, and/or the court can address security or privacy 

concerns on a case-by-case basis through protective orders, modifying timing of 

disclosure, or redaction of personal identifiers. 

 Two percent of judges in traditional districts and 3% of judges in broader disclosure districts reported that the effect that the proposed amendment would have 

on crime victims’ security and/or privacy depends on the facts of each case: “It 

would depend on the situation. I would prefer the rule to specifically provide that 

the court has the discretion upon a showing of privacy and/or security issues to 

take appropriate steps to deal with the problem such as setting the timing of the 

disclosure, redacting portions of the disclosure where necessary, or adopting other 

measures.” In addition, while not identifying the specific effect the amendment 

would have on crime victims, 2% of judges in traditional districts and 3% of 

judges in broader disclosure districts would like the proposed 2007 amendment to 

include more flexibility to either prevent or address privacy or security concerns of 

crime victims. 

2. Views of Defense Attorneys 

Over 4,000 defense attorneys provided comments regarding the impact of the proposed 2007 amendment upon the privacy and security of crime victims. Many of 

the defense attorney comments mirrored the comments set forth in the preceding 

section on cooperating witnesses. The most frequent response by defense attorneys in both traditional and broader disclosure districts is that the proposed 

2007 amendment would have no adverse effect upon the privacy and security of 

crime victims. The most frequent explanations as to why the proposed amendment wouldn’t cause harm to crime victims is that defendants are aware of victims’ identities and disclosure of certain victim information is the current practice 

in a district. 

 The second largest category of responses in both types of districts was that the 

proposed amendment would have a minimal or very little effect on crime victims’ 
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privacy and security because defendants are usually aware of victims’ identities, 

victims come forward without any knowledge of the disclosure laws, and state 

courts function well with similar laws. 

 Responses were consistent across both types of district with regard to negative

or potentially negative effects of the proposed 2007 amendment. Privacy concerns 

constituted the majority of comments, including the possible disclosure of potentially embarrassing impeaching evidence. Some attorneys noted the need for extra 

protection for sexual assault victims, and the possibility of retaliation from a defendant and security concerns with high profile gang or mafia cases. Many attorneys expressed the view that even if victims are impacted negatively, “[w]hen constitutional rights of accused [are] at issue—victims’ privacy rights cannot override.” Further, attorneys commented that the government had sufficient resources 

to protect victims, including protective orders and the ability to redact documents 

to protect victims. Finally, a number of attorneys commented that crimes tried in 

federal court are often considered victimless, such as drug and gun offenses. 
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X. Reform Proposals 

We asked respondents if they favored an amendment to Rule 16 that differed from 

the Advisory Committee’s 2007 proposal and, if so, to suggest alternative language. With few exceptions, judges and defense attorneys gave informal or general 

suggestions for either adding provisions to address issues that in their view the 

2007 proposal did not address, or for modifying or eliminating provisions in the 

proposal. Below is a summary of these responses. 

A. Judges’ Comments 

In both traditional and broader disclosure districts, timing of disclosure was the 

issue most frequently addressed. In traditional districts, the alternatives cited most 

frequently were for earlier disclosure (e.g., twenty-eight days before trial, thirty 

days before trial); elimination of all timing requirements, allowing the court to set 

the limits for early disclosure on a case-by-case basis; and requiring disclosure of 

impeachment material closer to the trial date (e.g., a seven-day window). In 

broader disclosure districts, the most frequent suggestions for alternative provisions 

were: eliminating timing requirements from the rule (e.g., “The timing of the disclosures should be left to the discretion of the presiding judges.”) and requiring disclosure of impeachment material near or during trial. Two comments suggested the 

rule should include a timing provision for disclosure of exculpatory information, 

and the final suggestion was for earlier disclosure. 

 In traditional districts only, some judges suggested that an amended Rule 16 

should include a procedure for protecting witnesses and victims where disclosure of 

information puts witnesses’/victims’ security and/or privacy at risk. 

 With regard to impeachment material, some judges suggested excluding impeachment evidence and limiting disclosure to exculpatory information only, defining 

“all impeachment information” more specifically, and having the court decide 

whether disclosure is appropriate when the government has concerns with disclosure of specific impeachment evidence. Further, several judges in traditional districts suggested eliminating the defense request from the amendment, and several 

judges expressed support for a rule change that called for open and full disclosure 

from both sides. One judge indicated that the amendment should include “some 

standard regarding disclosure” since the Brady materiality requirement was not 

included. 

 Across both types of districts, judges would provide for using procedures for in 

camera review of doubtful materials. 
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 Finally, in both types of districts, a number of respondents suggested that no 

changes to the 2007 proposed amendment were needed. Other judges were opposed to the amendment or any amendment to Rule 16. A small number of judges 

gave no suggestions for alternative language and we make no inferences that these 

judges are satisfied or not with the proposed 2007 amendment. 

B. Defense Attorneys’ Comments 

Across both types of districts, the timing of disclosure was the issue most frequently 

addressed in the attorneys’ suggestions for reforming the proposed 2007 amendment. Within this category, there was considerable variation as to what the timing 

of disclosure should be. Many of the attorneys used proceedings or events as 

benchmarks for determining when the prosecution should be required to disclose 

information and material. Some examples were: “at arraignment,” “immediately 

upon receipt by the prosecution,” “20 days from first court appearance,” “30 days 

before trial,” and “no more than 60 days before jury selection.” 

 A large number of attorneys said that the current proposed fourteen-day rule 

would not give the defense sufficient time to investigate or prepare for trial. One 

attorney noted that the “14-day limit undercuts the practical usefulness of the 

Rule and would result in numerous late motions for trial delays.” There was considerable support by federal defenders for eliminating the fourteen-day requirement altogether. 

 A significant number of respondents would like the Advisory Committee to 

eliminate the wording “upon request of the defendant” and to instead make production of information and evidence automatic. A number of attorneys made comments such as: “some prosecutors will play games about what constitutes a ‘request’ or will try to extract waivers of the request in exchange for something else.” 

 Many respondents that they would like to see an “open file” disclosure policy 

incorporated in any proposed rule. Some commented that determining what is or 

isn’t material evidence is highly subjective and that this subjectivity could lead a 

prosecutor to inadvertently designate evidence as immaterial when it could, in 

fact, lead to other investigative avenues that could ultimately lead to the discovery 

of exculpatory evidence. One attorney said: 

“The problem with the proposed amendment is that important information will be withheld on the grounds that it is not exculpatory or impeaching. Moreover, given the volume of evidence collected in most 

white collar cases today, it is not possible for the prosecutor to review it 

all or to figure out what is exculpatory. And it is irresponsible.” 
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XI. Summary of General Comments 

At the conclusion of the survey, respondents were invited to provide any general 

comments regarding amending Rule 16 or discovery disclosure in general. The 

comments below are, in some instances, a variation or an elaboration by a respondent of an answer provided to an earlier survey question. Below are some of 

the comments. 

A. Judges’ Comments 

In traditional districts, the issue most frequently commented on was opposition to 

amending Rule 16. Illustrative comments include: 

“Do not tinker with the Rule. No need to feed the litigation machine. 

These issues should not be issues and in any event should be left to the 

presiding judge to address consistent with the existing rules. Beware of 

the unintended consequences. One notorious case or lapse does not suggest an epidemic.” 

• 

“Rule 16 is sufficient when enforced appropriately, and 16(d) gives the 

court adequate authority to do so.” 

 The next most frequent topic addressed was “open file” discovery or broader 

disclosure policies. Some comments include: 

“I feel that there should be for the most part an open file discovery policy 

except where the government can show that full disclosure would likely 

cause harm to witnesses. The playing field should be level, understanding 

that the government has many more investigative resources than do most 

defendants.” 

• 

“An open file system will hurt law enforcement efforts unnecessarily and 

pose scheduling problems for busy districts.” 

• 

“Rule 16 issues rarely arise in our district since the U.S. Attorneys’ Office 

has adopted an open file policy.” 

 In broader disclosure districts, amending Rule 16 was the most frequently addressed issue. Some illustrative comments include: 

“In any proposed rule, I would treat exculpatory information and impeachment information separately because the doctrines are separate as is 

their import.” 
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• 

“I think there should be a certification requirement similar to the 

certification in civil discovery disputes before the attorneys could file 

motions seeking court intervention on both discovery/disclosure issues.” 

B. Defense Attorneys’ Comments 

In traditional and broader disclosure districts, the timing of disclosure was the most 

frequent issue raised by defense attorneys. Some illustrative comments: 

“Disclosure should be earlier than 14 days before trial.” 

• 

“Full and early disclosure often results in prompt disposition of the case. 

It optimizes everyone’s resources and prompts fairness. When disclosure 

is late or withheld it usually occurs in close cases and has much more to 

do with the government’s fear of losing than with justice.” 

• 

“Materiality is not the only issue that prevents Brady and Giglio from 

bearing fruit. The timing of disclosure is a huge problem in many cases. 

The idea of requiring defense counsel to review material the night before 

a witness appears should be abhorrent to a free society that values the liberty of individuals who are innocent until proven guilty. Too many times, 

defense counsel finds gold in the information, but cannot process the ore 

in time to make full use of it at trial.” 

 The next most frequent issue discussed was an “open file” disclosure policy or 

practice. Some sample comments: 

“If courtrooms are places where the truth is to be found, all information 

necessary to that search should be revealed, without being filtered by either counsel, government, or defense, for relevance, materiality, or admissibility. Those are issues for the bench, not the bar to decide.” 

• 

“Full disclosure by both sides prior to trial with enough time to properly 

use the material is the best policy. No trial by ambush, no surprises, and 

open discovery favors everyone.” 

• 

“I believe that an open discovery rule or policy would benefit everyone. 

The defendant, because it would help ensure that he received a fair trial 

or help resolve the case by plea; the government, as it would reduce the 

number and type of motions filed by defense to obtain discovery and 
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lessen the need for trial preparation as fruitless cases would settle; and the 

court, by unclogging much of the docket.” 

• 

“Open discovery saves time, makes cases move faster and is much fairer 

to the defendant. The government should not be ‘hiding the ball’ just to 

get convictions. The likelihood is that if there is true open discovery, 

more cases will get resolved short of trial, leading to less work in the appellate courts also.” 

However, one attorney noted the drawbacks of a broader disclosure rule: 

“I have had problems with too much disclosure. One recent tax fraud 

case had 1,200,000 documents. You can’t find the needle in the haystack. 

I would favor some rule to require disclosure separately of documents 

which may be used at trial and then all the rest. Too much time spent reviewing useless paperwork seized pursuant to a search warrant.” 

 The third most frequently raised issue was the government determining whether 

evidence or information is material. Some illustrative comments: 

“Any rule which allows the government discretion to determine what is 

material, what is exculpatory, etc., invites non-disclosure. All information 

should be turned over to the defense in order to provide the accused with 

due process.” 

• 

“The government is not in the best position to determine materiality of 

information. Any information that goes to bias, ability to recall, credibility, etc., should be disclosed ASAP.” 

• 

“Materiality needs to be defined prospectively, rather than retrospectively 

(i.e., it should not have to change the outcome of the trial on appellate 

review).” 

• 

“Too much exculpatory and impeaching material is never provided to the 

defense under the present system. Unfortunately, the defense hardly ever 

finds out about it. After all, the prosecutor has been entrusted to make a 

final determination as to whether critical exculpatory evidence should be 

produced to the adversary. It is like having the fox guarding the chicken 

coop.” 

 Finally, two other issues frequently raised were (1) the lack of sanctions imposed

when prosecutors fail to honor required disclosure obligations and (2) the need to 
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ensure the criminal justice system remains fair to all participants. Some sample comments were: 

“I have yet to see a prosecutor sanctioned for not complying with Rule 

16.” 

• 

“It is often difficult to know if or how much Brady information is withheld. Egregious cases may not be common, but, over the course of 32 

years in practice, I have seen them. While most federal prosecutors are 

ethical, the occasional unethical one can do a lot of damage by withholding Brady information. The truth is that courts are often ineffectual in 

protecting against Brady violations and are far too accommodating in accepting excuses and failing to sanction them when Brady violations are 

uncovered. Rules governing disclosure are long overdue.” 

• 

“As a former prosecutor, I would say the mandatory sanctions for violations by the prosecution is a more effective tool than simply changing the 

rule that will have no consequences if violated.” 

• 

“There ought to be a statement in the rules that indicate that failure to 

comply will result in some strict sanctions, including referring the U.S. 

Attorney to the local bar association for this conduct.” 

• 

“Justice is not being served when defense counsel is left in the dark as to 

information that could make a difference in the outcome of a criminal 

proceeding. We need to ensure that trials seek truth and lead to just decisions. Trial by ambush with gamesmanship must be avoided. The proposed rule is a step in that direction.” 

• 

“The judge’s job is always to promote justice. The more the parties know 

about their cases, the more information the parties can write and argue in 

motions in limine. The better the motions in limine are, the better the 

judge can research the issues, and draft more consistent rulings. Allowing 

the prosecution to hold the information until the end of direct hinders a 

judge’s ability to rule on important issues.” 
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Appendices 

The appendices, listed below, are available on the federal courts’ intranet at 

http://cwn.fjc.dcn/fjconline/home.nsf/pages/1356. 

Appendix A: Advisory Committee’s 2007 Proposed Rule 16 Amendment and 

Committee Note 

Appendix B: Compendium of U.S. District Court Local Rules and Standing 

Orders Addressing Brady Material and Tables 

Appendix C: Tables 

Appendix D: Methods 

Appendix E: Survey Instruments 
A Summary of Responses to a 

National Survey of Rule 16 of the 

Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases 

Final Report to the Advisory Committee on Criminal Rules 

Appendices 

Federal Judicial Center 

February 2011 

Appendix A: Advisory Committee’s 2007 Proposed Rule 16 

Amendment and Committee Note 

Appendix B: Compendium of U.S. District Court Local Rules 

and Standing Orders Addressing Brady Material 

and Tables 

Appendix C: Tables 

Appendix D: Methods 

Appendix E: Survey Instruments 

A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

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Appendix A – 1 

Appendix A: Advisory Committee’s Proposed 2007 

Rule 16 Amendment and Committee Note 

Rule 16. Discovery and Inspection 

(a) GOVERNMENT’S DISCLOSURE. 

(1) INFORMATION SUBJECT TO DISCLOSURE. 

 * * * * 

(H) Exculpatory or Impeaching Information. Upon a defendant’s request, the government must make available all information that is known to the attorney for the 

government or agents of law enforcement involved in the investigation of the case 

that is either exculpatory or impeaching. The court may not order disclosure of impeachment information earlier than 14 days before trial. 

COMMITTEE NOTE 

Subdivision (a)(1)(H). New subdivision (a)(1)(H) is based on the principle that fundamental fairness is enhanced when the defense has access before trial to any exculpatory or impeaching information known to the prosecution. The requirement that exculpatory and 

impeaching information be provided to the defense also reduces the possibility that innocent persons will be convicted in federal proceedings. See generally ABA STANDARDS FOR 

CRIMINAL JUSTICE, PROSECUTION FUNCTION AND DEFENSE FUNCTION 3-3.11(a) (3d ed. 

1993), and ABA MODEL RULE OF PROFESSIONAL CONDUCT 3.8(d) (2003). The amendment 

is intended to supplement the prosecutor’s obligations to disclose material exculpatory or 

impeaching information under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United 

States, 405 U.S. 150 (1972), Kyles v. Whitley, 514 U.S. 419 (1995), Strickler v. Greene, 527 

U.S. 263, 280–81 (1999), and Banks v. Dretke, 540 U.S. 668, 691 (2004). 

 The rule contains no requirement that the information be “material” to guilt in the 

sense that this term is used in cases such as Kyles v. Whitley. It requires prosecutors to disclose to the defense all exculpatory or impeaching information known to any law enforcement agency that participated in the prosecution or investigation of the case without 

further speculation as to whether this information will ultimately be material to guilt. 

 The amendment distinguishes between exculpatory and impeaching information for 

purposes of the timing of disclosure. Information is exculpatory under the rule if it tends 

to cast doubt upon the defendant’s guilt as to any essential element in any count in the 

indictment or information. Because the disclosure of the identity of witnesses raises special concerns, and impeachment information may disclose a witness’s identity, the rule 

provides that the court may not order the disclosure of information that is impeaching 

but not exculpatory earlier than 14 days before trial. The government may apply to the 

court for a protective order concerning exculpatory or impeaching information under the 

already-existing provision of Rule 16(d)(1), so as to defer disclosure to a later time. 

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Appendix B – 1 

Appendix B: Compendium of U.S. District Court Local Rules 

and Standing Orders Addressing Brady Material 

Middle District of Alabama 

STANDARD ORDER ON CRIMINAL DISCOVERY 

. . . (1) Disclosure by the Government. At arraignment, or on a date otherwise set 

by the court for good cause shown, the government shall tender to defendant the 

following: 

. . . (B) Brady Material. All information and material known to the government 

which may be favorable to the defendant on the issues of guilt or punishment, without 

regard to materiality, within the scope of Brady v. Maryland, 373 U.S. 83 (1963). 

(C) Giglio Material. The existence and substance of any payments, promises of 

immunity, leniency, preferential treatment, or other inducements made to prospective 

witnesses, within the scope of Giglio v. United States, 405 U.S. 150 (1972). 

Southern District of Alabama 

LR16.13 CRIMINAL DISCOVERY 

. . . (b) Initial Disclosures. 

(1) Disclosure by the Government. At arraignment, or on a date otherwise 

set by the court for good cause shown, the government shall tender to defendant 

the following: 

. . . (B) Brady Material. All information and material known to the 

government which may be favorable to the defendant on the issues of guilt or 

punishment, without regard to materiality, within the scope of Brady v. Maryland, 

373 U.S. 83 (1963). 

(C) Giglio Material. The existence and substance of any payments, promises 

of immunity, leniency, preferential treatment, or other inducements made to 

prospective witnesses, within the scope of Giglio v. United States, 405 U.S. 150 (1972). 

Eastern District of Arkansas 

PRETRIAL ORDER FOR CRIMINAL CASES 

. . . BRADY/GIGLIO 

The Government must comply with its Constitutional obligation to disclose any 

information known to it that is material to the guilt or punishment of the defendant 

whether or not the defendant requests it. Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

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Appendix B – 2 

United States, 405 U.S. 150 (1972). Brady and Giglio information must be disclosed in 

time for effective use at trial. In re United States (United States v. Coppa), 267 F.3d 132, 

142 (2d Cir. 2001); United States v. Olson, 697 F.2d 273 (8th Cir. 1983). Cf. United States 

v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983). 

Northern District of California 

16-1. PROCEDURES FOR DISCLOSURE AND DISCOVERY IN CRIMINAL 

ACTIONS. 

(a) Meeting of Counsel. Within 14 days after a defendant's plea of not guilty, the 

attorney for the government and the defendant's attorney shall confer with respect to a 

schedule for disclosure of the information as required by FRCrimP 16 or any other 

applicable rule, statute or case authority. The date for holding the conference can be 

extended to a day within 21 days after entry of plea upon stipulation of the parties. Any 

further stipulated delay requires the agreement of the assigned Judge pursuant to Civil 

L.R. 7-12. 

17.1-1. PRETRIAL CONFERENCE 

. . . (b) Pretrial Conference Statement. Unless otherwise ordered, not less than 4 

days prior to the pretrial conference, the parties shall file a pretrial conference statement 

addressing the matters set forth below, if pertinent to the case: 

. . . (3) Disclosure of exculpatory or other evidence favorable to the defendant on 

the issue of guilt or punishment; 

District of Connecticut 

APPENDIX STANDING ORDER ON DISCOVERY 

In all criminal cases, it is Ordered: 

(A) Disclosure by the Government. Within ten (10) days from the date of 

arraignment, government and defense counsel shall meet, at which time the attorney for 

the government shall furnish copies, or allow defense counsel to inspect or listen to and 

record items which are impractical to copy, of the following items in the possession, 

custody or control of the government, the existence of which is known or by the exercise 

of due diligence may become known to the attorney for the government or to the agents 

responsible for the investigation of the case: 

. . . (10) All information concerning the existence and substance of any payments, 

promises of immunity, leniency, or preferential treatment, made to prospective 

government witnesses, within the scope of Giglio v. United States, 405 U.S. 150 (1972) 

and Napue v. Illinois, 360 U.S. 264 (1959). 
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Appendix B – 3 

(11) All information known to the government which may be favorable to the 

defendant on the issues of guilt or punishment within the scope of Brady v. Maryland, 

373 U.S. 83 (1963). 

Northern District of Florida 

Rule 26.3. DISCOVERY – CRIMINAL 

. . . (D) Other Disclosure Obligations of the Government.—The government’s 

attorney shall provide the following within five (5) days after the defendant’s 

arraignment, or promptly after acquiring knowledge thereof: 

(1) Brady Material.—All information and material known to the government 

which may be favorable to the defendant on the issues of guilt or punishment, 

without regard to materiality, that is within the scope of Brady v. Maryland, 373 U.S. 

83 (1963) and United States v. Agurs, 427 U.S. 97 (1976).

(2) Giglio Material. The existence and substance of any payments, promises of 

immunity, leniency, preferential treatment, or other inducements made to 

prospective witnesses, within the scope of Giglio v. United States, 405 U.S. 150 (1972) 

and Napue v. Illinois, 360 U.S. 264 (1959). 

Southern District of Florida 

Rule 88.10. CRIMINAL DISCOVERY 

. . . C. The government shall reveal to the defendant and permit inspection and 

copying of all information and material known to the government which may be 

favorable to the defendant on the issues of guilt or punishment within the scope of Brady 

v. Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427 U.S. 97 (1976).

D. The government shall disclose to the defendant the existence and substance of 

any payments, promises of immunity, leniency, preferential treatment, or other 

inducements made to prospective government witnesses, within the scope of Giglio v. 

United States, 405 U.S. 150 (1972), and Napue v. Illinois, 360 U.S. 264 (1959). 

. . . Q. Schedule of Discovery. 

. . . 2. Discovery which is to be made in connection with trial shall be made 

not later than fourteen days after the arraignment, or such other time as ordered by 

the court. 
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Appendix B – 4 

Middle District of Georgia 

STANDARD PRETRIAL ORDER 

. . . DISCOVERY AND INSPECTION UNDER BRADY AND RULE 16; 

DISCLOSING IMPEACHING INFORMATION AND EXCULPATORY EVIDENCE 

A defendant has a right only to discovery of evidence pursuant to Rule 16 of the 

Federal Rules of Criminal Procedure or Brady v. Maryland, 373 U.S. 83 (1963), and its 

progeny. Brady prohibits the United States from suppressing evidence favorable to a 

defendant if that evidence is material either to guilt or to punishment. Brady, 373 U.S. at 

p.87. Because the credibility of a witness may determine guilt or innocence, impeaching 

evidence is material to guilt and thus falls within the Brady rule. See Giglio v. United 

States, 405 U.S. 150, 154 (1972); Williams v. Dutton, 400 F.2d 797, 800 (5th Cir. 1968), 

cert. denied, 393 U.S. 1105 (1969). 

UPON REQUEST, the United States is directed to disclose Rule 16 evidence and 

Brady evidence other than impeaching information as soon as reasonably possible. In 

accordance with the usual practice in this court, the United States is directed to disclose 

impeaching information about a witness no later than the evening before the witness’ 

anticipated testimony. The United States need not furnish defendant with Brady

information which the defendant has or, with reasonable diligence, the defendant could 

obtain himself. United States v. Slocum, 708 F.2d 587, 599 (11th Cir. 1983). 

UPON REQUEST, the United States is also directed to disclose impeaching 

information about any non-witness declarant no later than the evening before the United 

States anticipates offering the declarant’s statements in evidence. 

. . . REVEALING “THE DEAL”

Where the government fails to disclose evidence of any understanding or 

agreement as to future prosecution of a key government witness, due process may require 

reversal of the conviction. Giglio v. United States, supra; Napue v. Illinois, 360 U.S. 264, 79 

S. Ct. 1173, 3 L.Ed.2d 1217 (1959); Smith v. Kemp, 715 F.2d 1459, 1463 (11th Cir.), cert. 

denied, 464 U.S. 1003, 104 S. Ct. 510, 78 L.Ed.2d 699 (1983); Williams v. Brown, 609 F.2d 

216, 221 (5th Cir. 1980). The government has a duty to disclose such understandings for 

they directly affect the credibility of the witness. This duty of disclosure is even more 

important where the witness provides the key testimony against the accused. See Giglio, 

405 U.S. at 154–55, 92 S. Ct. at 766. Haber v. Wainwright, 756 F.2d 1520, 1523 (11th Cir. 

1985). 

. . . Accordingly, UPON REQUEST, the United States is directed to comply fully 

with Giglio, supra, and its progeny by disclosing the existence and substance of any such 

promises of immunity, leniency or preferential treatment. In accordance with the policy 

of Brady v. Maryland, supra, the United States is directed to furnish to the defendant such 

requested information within a reasonable period of time from the date of this order. 
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Appendix B – 5 

Northern District of Georgia 

STANDARD CRIMINAL ORDER 

. . . IV. Standard Rulings 

The following rulings are made in this case and are intended to obviate the need 

for standard, non-particularized motions on these subjects. Any party who disagrees with 

these standard rulings may file a particularized motion for relief therefrom, including a 

motion to compel or for a protective order. 

. . . B. Discovery and Disclosure of Evidence Arguably Subject to Suppression and 

of Evidence Which Is Exculpatory and/or Impeaching: Upon request of the defendant, 

the government is directed to comply with FED. R. CRIM. P. 16 and with FED. R. 

CRIM. P. 12 by providing notice as specified in section II.B, supra. The government is 

also directed to provide all materials and information that are arguably favorable to 

the defendant in compliance with its obligations under Brady v. Maryland, 373 U.S. 

83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. Exculpatory 

material as defined in Brady and Kyles v. Whitley, 514 U.S. 419, 434 (1995), must be 

provided sufficiently in advance of trial to allow a defendant to use it effectively. 

Impeachment material must be provided no later than production of the Jencks Act 

statements.

Southern District of Georgia 

LCrR 16.1. PRETRIAL DISCOVERY AND INSPECTION IN CRIMINAL CASES 

Within seven (7) days after arraignment, the United States Attorney and the 

defendant’s attorney shall confer and, upon request, the government shall: 

. . . (f) Permit defendant’s attorney to inspect and copy or photograph any 

evidence favorable to the defendant. 

District of Hawaii 

CrimLR 16.1. STANDING ORDER FOR ROUTINE DISCOVERY IN 

CRIMINAL CASES 

. . . (a) The Government’s Duty. A request for discovery set out in this paragraph 

and in Fed.R.Crim.P. 16 is entered for the defendant to the government by this rule so 

that the defendant need not make a further request for such discovery. If the defendant 

does not request such discovery, he or she shall file a notice to the government that he or 

she does not request such discovery within five (5) days after arraignment. If such a notice 

is filed, the government is relieved of any discovery obligations to the defendant imposed 

by this paragraph or Fed.R.Crim.P. 16. If the defendant does not file such a notice, within 

seven (7) days after arraignment unless otherwise ordered by the court or promptly upon 

subsequent discovery, the government shall permit the defendant to inspect and copy or 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

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Appendix B – 6 

photograph, or, in the case of the defendant’s criminal record, shall furnish a copy, and 

provide the information listed in the subparagraphs enumerated immediately below. 

Upon providing the information required in the enumerated subparagraphs below, the 

government shall file and serve notice of compliance with discovery mandated under this 

paragraph. 

. . . 7. Brady material, as it shall be presumed that defendant has made a 

general Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215, 1963 U.S. 

LEXIS 1615 (1963) request. Specific requests shall be made in writing to the 

government or by motion . . . 

. . . (g) Impeachment Material. 

1. Order of Production. The production of the following is hereby ordered: 

cooperation agreements, plea agreements, impeachment material, promises of 

leniency, under Giglio v. United States, 405 U.S. 150 (1972), and its progeny, and 

records of criminal convictions which may be admissible under Fed. R. Evid. 609. 

2. Time of Production. Impeachment material under this rule shall be provided as 

ordered by the court. 

District of Idaho 

PROCEDURAL ORDER 

In order to provide for the just determination of every criminal proceeding, the 

Board of Judges for the District Court for the District of Idaho has adopted a uniform 

Procedural Order to be used in criminal proceedings. United States Magistrate Judges are 

authorized to enter the Procedural Order at the time of the arraignment of a defendant 

pursuant to 28 U.S.C. § 636 (b)(1)(A). 

. . . I. DISCOVERY

. . . 5. The Court strongly encourages the government to produce any information 

currently in its possession and described in the following paragraphs within seven (7) 

calendar days of the date of the arraignment on the indictment, in conjunction with the 

material being produced under Part I, paragraph 1 of this Procedural Order. As to any 

materials not currently in the possession of the government, including information that 

may not be exculpatory in nature at the time of the arraignment but as the case proceeds 

towards trial may become exculpatory because of subsequent events, then the government 

shall, as soon as practicable and at a minimum for the defendant to make effective use of 

it at trial, disclose the information. If the government has information in its possession at 

the time of the arraignment, but elects not to disclose this information until a later time 

in the proceedings, the court can consider this as one factor in determining whether the 

defendant can make effective use of the information at trial. 

A. Disclose all material evidence within the scope of Brady v. Maryland, 373 U.S. 83 

(1963), United States v. Agurs, 427 U.S. 97 (1976), and Kyles v. Whitley, 514 U.S. 

419 (1995), and their progeny. 
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B. Disclose the existence and substance of any payments, promises of immunity, 

leniency, preferential treatment or other inducements made to prospective 

witnesses, within the scope of Giglio v. United States, 405 U.S. 150 (1972), and 

Napue v. Illinois, 362 U.S. 264 (1959), and their progeny. 

District of Kansas 

GENERAL ORDER OF SCHEDULING AND DISCOVERY 

In the interests of justice and judicial economy, the Court enters the following general 

order of discovery and scheduling which will apply to the charges and to any superseding 

charges in this case. In general, the court will order the parties to comply with Rules 12, 

12.1, 12.2, 16 and 26.2 of the Federal Rules of Criminal Procedure, with Brady v. 

Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), Giglio v. United States, 405 U.S. 150, 92 S. 

Ct. 763 (1972) and their progeny, and with Title 18, U.S.C. § 3500, as well as Rule 404(b), 

Federal Rules of Evidence. 

Unless otherwise specified, a request is not necessary to trigger the operation of this 

Order, notwithstanding Rule 16’s “upon request” language. Thus, the absence of a request 

may not be asserted as a reason for noncompliance. A principal purpose of this order is to 

make self-executing the disclosure and discovery provisions of the Rules, thereby 

reducing or eliminating the filing of “boilerplate” discovery motions and motions for 

extension of time. Counsel are expected to communicate with each other regarding 

discovery and nothing in this order is intended to deter the voluntary exchange of 

information between counsel at times sooner than those specified. 

Disclosure by the Government

No later than 30 days after arraignment, the government shall comply with Rule 

16. 

Pursuant to Brady and Giglio and their progeny, the government shall produce 

any and all evidence in its possession, custody or control which would tend to exculpate 

the defendant (that is, evidence which is favorable and material to a defense), or which 

would constitute impeachment of government witnesses, or which would serve to 

mitigate punishment, if any, which may be imposed in this case. This includes and is not 

limited to the following: 

1. Any evidence tending to show threats, promises, payments or inducements 

made by the government or any agent thereof which would bear upon the credibility of 

any government witness. 

2. Any statement of any government witness which is inconsistent with a 

statement by the witness which led to the indictment in this case. 

3. Any statement of any government witness which the attorney for the 

government knows or reasonably believes will be inconsistent with the witness’ testimony 

at trial. 
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4. Any prior conviction of any government witness, which involved dishonesty or 

false statement, or for which the penalty was death or imprisonment in excess of one year 

under the law under which he was convicted. 

5. Any pending felony charges against any government witness. 

6. Any specific instances of the conduct of any government witness which would 

tend to show character for untruthfulness. 

Subject to the requirements of Brady, Giglio and pursuant to 18 U.S.C. Section 

3500 and Rule 26.2, the government may decline to disclose pretrial statements of any of 

its witnesses until each such witness has concluded his or her direct examination at trial. 

At that time, the government shall produce the witness’ prior statement that is in its 

possession relating to the witness’ testimony. The Court nevertheless urges the 

government to provide the statements at least 48 hours prior to the witness’ scheduled 

appearance . . . 

Western District of Kentucky 

SCHEDULING ORDER 

 . . . 4. To the extent required by Giglio v. United States, 405 U.S. 150 

(1972) and United States v. Presser, 844 F.2d 1275 (6th Cir. 1988), the United States is 

ordered to provide to defendant with Giglio material which shall include but not be 

limited to production of criminal records of government witnesses, deals, promises of 

leniency, bargains or other impeachment material. To the extent required by Brady v. 

Maryland, 373 U.S. 83 (1963) and Presser, the United States shall disclose any Brady

material of which it has knowledge in the following manner: 

(a) pretrial disclosure of any Brady material discoverable under Rule 16(a)(1); 

(b) disclosure of all other Brady material “in time for effective use at trial.” 

 If the United States has knowledge of Brady rule evidence and is unsure 

as to the nature of the evidence and the proper time for disclosure, it may request an in

camera hearing for the purpose of resolving this issue. Failure to disclose Brady material 

at a time when it can be used effectively may result in a recess or a continuance so that the 

defendant may properly utilize such evidence. 

 5. Grand Jury materials shall not be disclosed except to the extent 

required by Brady, Giglio and the Jencks Act. 

Western District of Louisiana 

CRIMINAL SCHEDULING ORDER 

The purpose of this order is to reduce or eliminate the use of boilerplate, formula 

motions and responses for discovery of matters authorized by the Federal Rules of 
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Criminal Procedure, federal statutes, or well-settled case law as applied by this court in 

the vast majority of criminal cases. 

The above-named defendant having been arraigned this date in open court, the 

following orders are entered: 

. . . II. DISCOVERY 

. . . (c) Not less than 7 days prior to trial: 

(1) The government shall reveal to the defendant and permit inspection and 

copying of all information and material known to the government which may be 

favorable to the defendant on the issues of guilt or punishment within the scope of 

Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976), and 

Kyles v. Whitley, 115 S. Ct. 1555, 131 L.Ed.2d 490 (1995).

(2) The government shall disclose to the defendant the existence and nature of 

any payments, promises or immunity, leniency, preferential treatment, or other 

inducements made to prospective government witnesses, within the scope of Giglio v. 

United States, 405 U.S. 150 (1972), and Napue v. Illinois, 362 U.S. 264 (1959) . . . 

District of Massachusetts 

RULE 116.1 DISCOVERY IN CRIMINAL CASES 

(A) Discovery Alternatives. 

 (1) Automatic Discovery. In all felony cases, unless a defendant waives 

automatic discovery, all discoverable material and information in the possession, custody, 

or control of the government and that defendant, the existence of which is known, or by 

the exercise of due diligence may become known, to the attorneys for those parties, must 

be disclosed to the opposing party without formal motion practice at the times and under 

the automatic discovery procedures specified in this Local Rule. 

. . . (C) Automatic Discovery Provided By The Government. 

 (1) Following Arraignment. Unless a defendant has filed the Waiver, 

within twenty-eight (28) days of arraignment—or within fourteen (14) days of receipt by 

the government of a written statement by the defendant that no Waiver will be filed—the 

government must produce to the defendant: 

 . . . (2) Exculpatory Information. The timing and substance of the 

disclosure of exculpatory evidence is specifically provided in L.R. 116.2. 

RULE 116.2 DISCLOSURE OF EXCULPATORY EVIDENCE 

(A) Definition. Exculpatory information includes, but may not be limited to, all 

information that is material and favorable to the accused because it tends to: 
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(1) Cast doubt on defendant’s guilt as to any essential element in any count 

in the indictment or information; 

(2) Cast doubt on the admissibility of evidence that the government 

anticipates offering in its case-in-chief, that might be subject to a motion 

to suppress or exclude, which would, if allowed, be appealable pursuant 

to 18 U.S.C. § 3731; 

(3) Cast doubt on the credibility or accuracy of any evidence that the 

government anticipates offering in its case-in-chief; or 

(4) Diminish the degree of the defendant’s culpability or the defendant’s 

Offense Level under the United States Sentencing Guidelines. 

(B) Timing of Disclosure by the Government. Unless the defendant has filed the 

Waiver or the government invokes the declination procedure under Rule 116.6, the 

government must produce to that defendant exculpatory information in accordance with 

the following schedule: 

(1) Within the time period designated in L.R. 116.1(C)(1): 

(a) Information that would tend directly to negate the defendant’s guilt 

concerning any count in the indictment or information. 

(b) Information that would cast doubt on the admissibility of evidence 

that the government anticipates offering in its case-in-chief and that could be 

subject to a motion to suppress or exclude, which would, if allowed, be appealable 

under 18 U.S.C. § 3731.

(c) A statement whether any promise, reward, or inducement has been 

given to any witness whom the government anticipates calling in its case-in-chief, 

identifying by name each such witness and each promise, reward, or inducement, 

and a copy of any promise, reward, or inducement reduced to writing. 

(d) A copy of any criminal record of any witness identified by name 

whom the government anticipates calling in its case-in-chief. 

(e) A written description of any criminal cases pending against any 

witness identified by name whom the government anticipates calling in its casein-chief. 

(f) A written description of the failure of any percipient witness identified 

by name to make a positive identification of a defendant, if any identification 

procedure has been held with such a witness with respect to the crime at issue. 

 (2) Not later than twenty-one (21) days before the trial date established by 

the judge who will preside: 

(a) Any information that tends to cast doubt on the credibility or 

accuracy of any witness whom or evidence that the government anticipates calling 

or offering in its case-in-chief. 
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(b) Any inconsistent statement, or a description of such a statement, 

made orally or in writing by any witness whom the government anticipates 

calling in its case-in-chief, regarding the alleged criminal conduct of the 

defendant. 

(c) Any statement or a description of such a statement, made orally or in 

writing by any person, that is inconsistent with any statement made orally or in 

writing by any witness the government anticipates calling in its case-in-chief, 

regarding the alleged criminal conduct of the defendant. 

(d) Information reflecting bias or prejudice against the defendant by any 

witness whom the government anticipates calling in its case-in-chief. 

(e) A written description of any prosecutable federal offense known by 

the government to have been committed by any witness whom the government 

anticipates calling in its case-in-chief. 

(f) A written description of any conduct that may be admissible under 

Fed. R. Evid. 608(b) known by the government to have been committed by a 

witness whom the government anticipates calling in its case-in-chief. 

(g) Information known to the government of any mental or physical 

impairment of any witness whom the government anticipates calling in its casein-chief, that may cast doubt on the ability of that witness to testify accurately or 

truthfully at trial as to any relevant event. 

 (3) No later than the close of the defendant’s case: Exculpatory information 

regarding any witness or evidence that the government intends to offer in 

rebuttal. 

 (4) Before any plea or to the submission by the defendant of any objections to 

the Pre-Sentence Report, whichever first occurs: A written summary of any 

information in the government’s possession that tends to diminish the degree of 

the defendant’s culpability or the defendant’s Offense Level under the United 

States Sentencing Guidelines. 

 (5) If an item of exculpatory information can reasonably be deemed to fall 

into more than one of the foregoing categories, it shall be deemed for purposes of 

determining when it must be produced to fall into the category which requires 

the earliest production. 

RULE 116.6 DECLINATION OF DISCLOSURE AND PROTECTIVE ORDERS 

(A) Declination. If in the judgment of a party it would be detrimental to the 

interests of justice to make any of the disclosures required by these Local Rules, such 

disclosures may be declined, before or at the time that disclosure is due, and the opposing 

party advised in writing, with a copy filed in the Clerk’s Office, of the specific matters on 

which disclosure is declined and the reasons for declining. If the opposing party seeks to 

challenge the declination, that party shall file a motion to compel that states the reasons 
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why disclosure is sought. Upon the filing of such motion, except to the extent otherwise 

provided by law, the burden shall be on the party declining disclosure to demonstrate, by 

affidavit and supporting memorandum citing legal authority, why such disclosure should 

not be made. The declining party may file its submissions in support of declination under 

seal pursuant to L.R. 7.2 for the Court's in camera consideration. Unless otherwise 

ordered by the Court, a redacted version of each such submission shall be served on the 

moving party, which may reply. 

(B) Ex Parte Motions for Protective Orders. This Local Rule does not preclude 

any party from moving under L.R. 7.2 and ex parte (i.e. without serving the opposing 

party) for leave to file an ex parte motion for a protective order with respect to any 

discovery matter. Nor does this Local Rule limit the Court's power to accept or reject an 

ex parte motion or to decide such a motion in any manner it deems appropriate. 

Adopted September 8, 1998; effective December 1, 1998. 

RULE 116.7 DUTY TO SUPPLEMENT 

The duties established by these Local Rules are continuing. Each party is under a 

duty, when it learns that a prior disclosure was in some respect inaccurate or incomplete 

to supplement promptly any disclosure required by these Local Rules or by the Federal 

Rules of Criminal Procedure. 

Adopted September 8, 1998; effective December 1, 1998. 

RULE 116.8 NOTIFICATION TO RELEVANT LAW ENFORCEMENT 

AGENCIES OF DISCOVERY OBLIGATIONS 

The attorney for the government shall inform all federal, state, and local law 

enforcement agencies formally participating in the criminal investigation that resulted in 

the case of the discovery obligations set forth in these Local Rules and obtain any 

information subject to disclosure from each such agency. 

Adopted September 8, 1998; effective December 1, 1998. 

Eastern District of Michigan 

STANDING ORDER FOR DISCOVERY AND INSPECTION AND FIXING 

MOTION CUT-OFF DATE IN CRIMINAL CASES 

. . . To eliminate unnecessary motions for discovery and to expedite the trial and 

eliminate delays in the presentation of evidence and the examination of witnesses, this 

order is entered in all criminal cases in this district. Nothing in this order shall be 

construed to impose any obligation on any party not otherwise provided by law. 
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. . . 1. Conference and Disclosure. Within ten (10) days from the date of 

arraignment, or such other date as may be set by the Judge to whom the case is assigned, 

government and defense counsel shall meet and confer, or government counsel shall file 

the attached Discovery Notice. Upon request of defense counsel the government shall: 

. . . (b) Permit defense counsel to inspect, copy or photocopy any exculpatory 

evidence within the meaning of Brady v. Maryland, 373 U.S. 83 (1963), and United 

States v. Agurs, 427 U.S. 97 (1976). 

 A list of the items of evidence so inspected shall be made and such list 

signed by all counsel and copies of the items so disclosed hall be initialed or otherwise 

marked. Government counsel is reminded that the government proceeds at its peril if 

there is a failure to disclose such evidence. 

 Nothing herein shall be deemed to require the disclosure of Jencks Act 

material prior to the time that the Jencks Act requires its disclosure, nor shall government 

counsel be required to automatically disclose the names of government witnesses. 

 2. Disclosure Declined. If, in the judgment of government counsel, it 

would be detrimental to the interests of justice to make any disclosure set forth in 

paragraph 1 and requested by defense counsel, disclosure may be declined, and defense 

counsel so advised. The declination shall be made or confirmed in writing. If a defendant 

seeks to challenge the declination, he or she shall move forthwith for relief. 

 3. Continuing Duty. The duty of disclosure an discovery described in this 

order is continuing . . . 

Western District of Michigan 

STANDING ORDER REGARDING DISCOVERY IN CRIMINAL CASES 

Unless otherwise ordered in a particular case, the parties in all criminal 

proceedings in this Court must comply with the following requirements: 

. . . D. The government shall reveal to the defendant and permit inspection and 

copying all information and material known to the government which may be favorable 

to the defendant on the issues of guilt or punishment within the scope of Brady v. 

Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427 U.S. 97 (1976). 

E. The government shall obtain and copy impeachment information relating to its 

witnesses that is within the ambit of the Jencks Act and within the ambit of Brady, 

including any prior criminal record of any alleged informant who will testify for the 

government at trial, so that the documents are available for effective use at the time of 

trial. This Court cannot compel the government to disclose Jencks Act statements prior to 

trial. United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988). The Sixth Circuit Court 

of Appeals has noted, however, the “the better practice . . . is for the government to 

produce such material well in advance of trial so that defense counsel may have an 

adequate opportunity to examine that which is not in dispute and the court may examine 
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the rest in camera, usually in chamber.” United States v. Minsky, 963 F.2d 870, 876 (6th 

Cir. 1992). This Court urges the government to follow the recommendation of the Sixth 

Circuit and produce Jencks Act and other impeachment material in a timely fashion. 

. . . This order is designed to exhaust the discovery to which a defendant is 

ordinarily entitled and to avoid the necessity of counsel for the defendant(s) filing routine 

motions for routine discovery. Accordingly, counsel for the defendant(s) shall make a 

request of the government for each item of discovery sought and be declined the same 

prior to the filing of any motion. . . 

. . . Unless otherwise indicated above, the parties must comply with this order 

within 21 days of the initial arraignment. Failure to abide by this order may result in the 

imposition of sanctions. 

Western District of Missouri 

DISCOVERY ORDER 

To ensure that commencement of discovery is not delayed following arraignment 

and that the parties are adequately prepared to discuss pre-trial deadlines at the 

scheduling conference, the following schedule is established for the commencement of 

discovery.1

. . . III. EVIDENCE FAVORABLE TO THE DEFENSE2

A. BRADY EVIDENCE

Within ten days from the date of arraignment, the government is directed 

to disclose all evidence favorable to the defendant within the meaning of Brady v. 

Maryland. 

B. GIGLIO IMPEACHMENT EVIDENCE

No later than fifteen days prior to trial, the government is directed to 

disclose all evidence which may tend to adversely affect the credibility of any 

person called as a witness by the government pursuant to Giglio v. United States

and United States v. Agurs, including the arrest and/or conviction record of each 

 

 1. During the arraignment, defense counsel requested all discovery to which their client may be entitled 

pursuant to the Federal Rules of Criminal Procedure, the Federal Rules of Evidence and the United States 

Constitution. The government requested reciprocal discovery to which it is entitled pursuant to the Federal 

Rules of Criminal Procedure, the Federal Rules of Evidence and the United States Constitution. 

 2. The parties are to be prepared to disclose to the Court at the final pretrial conference the method used 

to determine whether any favorable evidence exists in the government’s investigative file. The government is 

advised that if any portion of the government’s investigative file or that of any investigating agency is not 

made available to the defense for inspection, the Court will expect that trial counsel for the government or an 

attorney under trial counsel’s immediate supervision who is familiar with the Brady/Giglio doctrine will have 

reviewed the applicable files for purposes of ascertaining whether evidence favorable to the defense is 

contained in the file. 
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government witness, any offers of immunity or lenience, whether made directly 

or indirectly, to any government witness in exchange for testimony and the 

amount of money or other remuneration given to any witness. 

STIPULATIONS AND ORDERS 

. . . 

III. EVIDENCE FAVORABLE TO THE DEFENSE 

1. Brady/Giglio Evidence 

[] The government states that it does not have evidence in its possession 

favorable to defendant(s): 

______________________________________________ 

[and/or] 

[] The government states that it has evidence in its possession favorable 

to defendant(s): 

______________________________________________ 

STIPULATION: The government agrees to provide discovery within 10 

days of all evidence in its possession which is favorable to a defendant. If 

favorable evidence comes into the government’s possession in the future, the

government agrees to disclose it promptly. Although most instances of favorable 

evidence to the defense will be immediately apparent to the government (e.g., 

exculpatory evidence and impeachment evidence), this stipulation recognizes that 

at times the government will not necessarily be aware of the nature of a particular 

defense. Therefore, defense counsel has a responsibility to alert the government as 

to the nature and type of evidence that it believes may prove to be favorable to the 

defense which might not otherwise be apparent to the government. 

. . . 

3. Witness Inducements 

[ ] The government has not made promises to witness(es) in exchange for 

testimony. 

[or] 

[ ] The government has made promises to witness(es) in exchange for 

testimony. 

STIPULATION: The government agrees to provide discovery at least 10 

days before trial of (a) the name(s) and address(es) of the witness(es) to whom 

the government has made a promise, (b) all promises or inducements made to 
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any witness(es), (c) all agreements entered into with any witness(es), and (d) the 

amount of money or other remuneration given to any witness(es). If the witness 

is represented by counsel, the government also will provide discovery of the 

attorney’s name, address, and telephone number. As an alternative to providing 

witness-address information, the government agrees to make the witness(es) 

available for interview if the witness(es) agree(s) to being interviewed. If such 

evidence is not immediately available, the government will promptly disclose it 

upon receipt. 

. . . 

XII. CONCLUSION 

ORDERED that all requests for discovery and inspection agreed to or ordered 

above are continuing requests and orders, and any such information and/or material 

coming into the knowledge or possession of any party before or during trial shall be 

promptly made available to opposing counsel. 

NOTE: The parties acknowledge that the above-executed stipulations are 

intended to eliminate the need for pretrial discovery motions and responses. They are not 

intended to be used to exclude the introduction of evidence by either side at trial unless a 

complaining party can show bad faith on the part of the offending party, real prejudice to 

the complaining party, or both. 

District of Nebraska 

ORDER FOR PROGRESSION OF A CRIMINAL CASE 

Upon arraignment of Defendant this date and the entry of plea of not guilty, 

IT IS ORDERED: 

. . . 3. If after compliance with Rule 16 there is necessity for the filing of pretrial 

motions, they shall be filed by (date), and that time limit will not be extended by the court 

except for good cause shown. In this connection, the United States Attorney shall disclose 

Brady v. Maryland (and its progeny) material as soon as practicable. Should the 

Defendant nonetheless file a motion for such disclosure, such motion shall state with 

specificity the material sought. In the event that any motions are filed seeking bills of 

particulars or discovery of facts, documents, or evidence, as part of the motion the 

moving party shall recite that counsel for the movant has conferred with opposing 

counsel regarding the subject of the motion in an attempt to reach agreement on the 

contested matters without the involvement of the court and that such attempts have been 

unsuccessful. The motion shall further state the dates and times of such conferences. 
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District of New Hampshire 

Rule 16.1. ROUTINE DISCOVERY 

The parties shall disclose the following information without waiting for a demand 

from the opposing party. 

. . . (d) Exculpatory and Impeachment Material. The government shall disclose 

any evidence material to issues of guilt or punishment within the meaning of Brady v. 

Maryland, 373 U.S. 83 (1963), and related cases, and any impeachment material as 

defined in Giglio v. United States, 405 U.S. 150 (1972), and related cases, at least twentyone (21) days before trial. For good cause shown, the government may seek approval to 

disclose said material at a later time. 

District of New Jersey 

ORDER FOR DISCOVERY AND INSPECTION 

. . . 1. CONFERENCE. Within ten (10) days from the date hereof, the United 

States Attorney or one of his assistants and the defendant’s attorney shall meet and 

confer, and the government shall: 

. . . (f) Permit defendant’s attorney to inspect, copy or photograph any 

exculpatory evidence within the purview of Brady v. Maryland. 

District of New Mexico 

RULE 16.1 DISCOVERY OF EVIDENCE 

The Parties will comply with the Standard Discovery Order. A copy of the Order 

is attached to these Rules. 

STANDARD DISCOVERY ORDER 

. . . 6. DISCLOSURE OF BRADY, GIGLIO AND JENCKS ACT MATERIALS. The 

government shall make available to the Defendant by the time required by applicable law 

all material for which discovery is mandated by Brady v. Maryland, 373 U.S. 83 (1963), by 

Giglio v. United States, 405 U.S. 150 (1972), and by the Jencks Act, 18 U.S.C. § 3500, and 

Rules 12(i) and 26.2. 

Northern District of New York 

14.1 DISCOVERY 

. . . (b) Fourteen (14) days after arraignment, or on a date that the Court 

otherwise sets for good cause shown, the government shall make available for inspection 

and copying to the defendant the following: 
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. . . 2. Brady Material. All information and material that the government 

knows may be favorable to the defendant on the issues of guilt or punishment, within 

the scope of Brady v. Maryland, 373 U.S. 83 (1963). 

. . . (d) No less than fourteen (14) days prior to the start of jury selection, or on a 

date the Court sets otherwise for good cause shown, the government shall tender to the 

defendant the following: 

1. Giglio Material. The existence and substance of any payments, promises of 

immunity, leniency, preferential treatment, or other inducements made to 

prospective witnesses, within the scope of Giglio v. United States, 405 U.S. 150 (1972). 

2. Testifying Informant’s Convictions. A record of prior convictions of any 

alleged informant who will testify for the government at trial. 

 . . . (f) It shall be the duty of counsel for all parties immediately to reveal to 

opposing counsel all newly discovered information, evidence, or other material within the 

scope of this Rule, and there is a continuing duty upon each attorney to disclose 

expeditiously. The government shall advise all government agents and officers involved in 

the action to preserve all rough notes. 

Eastern District of North Carolina 

Rule 16.1. MOTIONS RELATING TO DISCOVERY AND INSPECTION 

. . . (b) Criminal Pre-Trial Conference. Within twenty-one (21) days after 

indictment or initial appearance, whichever comes later, the United States Attorney shall 

arrange and conduct a pre-trial conference with counsel for the defendant. At the pre-trial 

conference and upon the request of counsel for the defendant, the Government shall 

permit counsel for the defendant: 

. . . (7) to inspect, copy or photograph any exculpatory evidence. 

Middle District of North Carolina 

LOCAL CRIMINAL RULE 16.1 DISCOVERY MOTIONS 

Discovery motions filed by a defendant who is represented by counsel must 

include a statement that counsel has fully reviewed the government's case file before 

bringing the motion or a statement that such file is not available for counsel's review. The 

filing of a discovery motion which does not include such certification may cause the court 

to deny the motion, to disapprove payment to court-appointed counsel in regard to a 

motion made unnecessary by examination of the file, or to impose other sanctions under 

LCrR57.3 in the discretion of the court. 
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District of North Dakota 

PRETRIAL ORDER (CRIMINAL) 

. . . II. DISCOVERY: The following discovery rules shall apply: 

. . . d) The Government shall disclose to the Defendant any exculpatory 

material discoverable under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. 

District of the Northern Mariana Islands 

LCrR 17.1.1—PRETRIAL CONFERENCE 

On request of any party or on the court’s motion, one or more pretrial 

conferences may be held. The agenda shall consist of the following items, so far as 

applicable: 

. . . c. Production of evidence favorable to the defendant on the issue of guilt or 

punishment as required by Brady v. Maryland, 373 U.S. 83 (1963), and related authorities; 

Western District of Oklahoma 

LCrR16.1 DISCOVERY CONFERENCE 

(a) Time for Discovery Conference. Counsel for the parties shall meet and confer at a 

discovery conference within ten (10) days after a plea of not guilty is entered. 

 (b) Joint Statement. Within three (3) days following completion of the required 

discovery conference, the parties shall file with the Court Clerk a joint statement 

memorializing the discovery conference. (The Joint Statement of Discovery Conference 

shall conform to the form provided herein as Appendix V.) . . . 

APPENDIX V. JOINT STATEMENT OF DISCOVERY CONFERENCE 

. . . Counsel met for purposes of exchanging discovery materials in accordance 

with the Federal Rules of Criminal Procedure as supplemented by the Local Criminal 

Court Rules and any orders of this Court and, as a result of the conference, the 

undersigned counsel report the following:

. . . 5. The fact of disclosure of all materials favorable to the defendant or the 

absence thereof within the meaning of Brady v. Maryland and related cases: Counsel for 

plaintiff expressly acknowledges continuing responsibility to disclose any material 

favorable to defendant within the meaning of Brady that becomes known to the 

Government during the course of these proceedings. 
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Western District of Pennsylvania 

Rule 16.1. DISCOVERY AND INSPECTION 

B. Timing. Upon a defendant’s request, the government shall make available the 

Rule 16 material at the time of the arraignment. If discovery is not requested by the 

defendant at the time of the arraignment, the government shall disclose such material 

within seven (7) days of a defendant's request. The government shall file a receipt with the 

Court which sets forth the general categories of information subject to disclosure under 

Rule 16, as well as any exculpatory evidence, and the items provided under each category. 

C. Exculpatory Evidence. At the time of arraignment, and subject to a continuing 

duty of disclosure thereafter, the government shall notify the defendant of the existence of 

exculpatory evidence, and permit its inspection and copying by the defendant. 

Eastern District of Tennessee 

DISCOVERY AND SCHEDULING ORDER 

. . . The government shall reveal to the defendant and permit inspection and copying 

of all information and material known to the government which may be favorable to the 

defendant on the issues of guilt or punishment within the scope of Brady v. Maryland, 373 

U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976) (exculpatory evidence), and 

United States v. Bagley, 473 U.S. 667 (1985) (impeachment evidence). Timing of such 

disclosure is governed by United States v. Presser, 844 F.2d 1275 (6th Cir. 1988). 

It shall be the continuing duty of counsel for both sides to immediately reveal to 

opposing counsel all newly discovered information or other material within the scope of 

this order. 

Upon a sufficient showing, the Court may at any time, upon motion properly filed, 

order that the discovery or inspection provided for by this order be denied, restricted or 

deferred, or make such other order as is appropriate. It is expected by the Court, however, 

that counsel for both sides shall make every good faith effort to comply with the letter and 

spirit of this order. 

Middle District of Tennessee 

LcrR16.01. DISCOVERY AND INSPECTION 

(a) Discovery in Criminal Cases. 

. . . (2) Standing Discovery Rule. On or before fourteen (14) days from the 

date of the arraignment of a defendant, the parties shall confer and the following shall 

be accomplished: 

. . . d. The government shall reveal to the defendant and permit 

inspection and copying of all information and material known to the government 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – 21 

which may be favorable to the defendant on the issues of guilt or punishment 

within the scope of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 

(1963), and United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L.Ed.2d 342 

(1976).

Western District of Texas 

Rule CR-16 DISCOVERY AND INSPECTION 

(a) Discovery Conference and Agreement. 

(1) The parties need not make standard discovery requests, motions, or responses if, 

not later than the deadline for filing pretrial motions (or as otherwise authorized 

by the court), they confer, attempt to agree on procedures for pretrial discovery, 

and sign and file a copy of the Disclosure Agreement Checklist appended to this 

rule. 

. . . (b) Timing of Discovery. 

(1) Discovery deadlines. Unless otherwise ordered by the court, or agreed to by the 

parties in writing: 

(A) The parties must provide discovery in connection with pretrial release or 

detention not later than the commencement of a hearing on pretrial release or 

detention; 

(B) The parties must provide discovery in connection with a pretrial hearing, 

other than a pretrial release or detention hearing, not later than 48 hours before 

the hearing; and 

(C) The parties must provide discovery in connection with trial, whether agreed 

to by the parties or otherwise required, not later than: The parties must provide 

discovery in connection with trial, whether agreed to by the parties or otherwise 

required, not later than: 

(i) 14 days after arraignment; or 

(ii) if the defendant has waived arraignment, within 14 days after the latest 

scheduled arraignment date. 

(2) Earlier disclosure. The court encourages prompt disclosure, including disclosure 

before the deadlines set out in this rule. 

(3) Disclosure after motions deadline. The disclosure of information after the 

expiration of a motions deadline usually provides good cause for an extension of 

time to file motions based on that information. 

(4) Continuing duty to disclose. The parties have a continuing duty to disclose 

promptly to opposing counsel all newly discovered information the party is 

required to disclose, or has agreed to disclose in the Disclosure Agreement 

Checklist. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – 22 

PARTIES’ DISCLOSURE AGREEMENT CHECKLIST 

Disclosed Will Disclose/Refuse to Not Comments 

. . . Rule 16 material: 

. . . Exculpatory material . . . 

 (Brady) 

Impeachment material 

 (Giglio. . .) 

District of Vermont 

Rule 16. DISCOVERY 

At the time of arraignment, the court will issue to all parties a standard Criminal 

Pretrial Order, which sets forth this court’s criminal discovery procedures. 

(a) Discovery from the Government. Unless the court orders otherwise, the 

government must make the following materials available to the defendant for inspection 

and copying within 14 days of arraignment: 

 . . . (2) Brady Material. All information and material known to the 

government that may be favorable to the defendant on the issues of guilt or 

punishment, as provided by Brady v. Maryland, 373 U.S. 83 (1963); 

(3) Names and Addresses of Witnesses. A list of the names and addresses of 

witnesses the government intends to call in its case in chief. The government may 

withhold the names and/or addresses of those witnesses about whom it has 

substantial concerns. If names and/or addresses are withheld, the government must 

notify the defense of the number that have been withheld . . . 

(d) Government Pretrial Disclosures. Unless the court orders otherwise for good 

cause, the government must provide to the defendant not less than 14 days prior to the 

start of jury selection: 

(1) Giglio Material. All material within the scope of Giglio v. United States, 

405 U.S. 150 (1972), including but not limited to information relating to: 

(A) the existence and substance of any payments, promises of immunity, 

leniency, preferential treatment, or other inducements made to a testifying 

witness; 

(B) the content of substantially inconsistent statements that a witness has 

made concerning issues material to guilt or punishment; and 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – 23 

(C) any criminal conviction of a witness or other instance of misconduct, 

of which the government has knowledge, and which may be used to impeach a 

witness pursuant to Fed. R. Evid. 608 and 609. 

Western District of Washington 

Rule 16. DISCOVERY AND INSPECTION 

. . . (a) Discovery Conference 

At every arraignment at which the defendant enters a plea of not guilty, or other 

time set by the court, the attorney for the defendant shall notify the court and the 

attorney for the United States, on the record, or thereafter in writing, whether discovery 

by the defendant is requested. If so requested, within fourteen days after said attorney for 

the defendant and the attorney for the government shall confer in order to comply with 

Rule 16 Fed.R.Crim.P., and make available to the opposing party the items in their 

custody or control or which by due diligence may become known to them. This 

conference shall be in person. If, however, it is impractical to meet in person, the 

conference may be conducted via telephone. 

 (1) Discovery from the government. At the discovery conference the attorney for the 

government shall comply with the government’s obligations under Rule 16 including, but 

not limited to, the following: 

. . . (K) Advise the attorney for the defendant and provide, if requested, 

evidence favorable to the defendant and material to the defendant’s guilt or 

punishment to which he is entitled pursuant to Brady v. Maryland and United States 

v. Agurs . . . 

Northern District of West Virginia 

LR Cr P 16.01. PRETRIAL DISCOVERY AND INSPECTION. 

. . . (b) Standard Discovery Request Form: At arraignment or upon filing of an 

information or indictment, counsel for the defendant may file standard requests for 

discovery. An Arraignment Order and Standard Discovery Request form is available on 

the Court’s website. Counsel for the government and counsel for the defendant shall sign 

the form for entry by the magistrate judge. 

. . . (d) Time for Government Response: Unless the parties agree otherwise, or the 

Court so orders, within 10 days of the Standard Discovery Request, the government must 

provide the requested material to counsel for the defendant and file with the clerk a 

written response to each of defendant’s requests. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – 24 

LR Cr P 16.05. EXCULPATORY EVIDENCE 

Exculpatory evidence as defined in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 

10 L.Ed.2d 215 (1963), as amplified by United States v. Bagley, 473 U.S. 667, 105 S. Ct. 

3375, 87 L.Ed.2d 481 (1985), shall be disclosed at the time the disclosures described in LR 

Cr P 16.01 are made. Additional Brady material not known to the government at the time 

of disclosure of other discovery material, as described above, shall be disclosed 

immediately in writing setting forth the material in detail. 

LR Cr P 16.06. RULE 404(b), GIGLIO AND ROVIARO EVIDENCE 

No later than fourteen days before trial, the government shall disclose all Notice 

of Federal Rule of Evidence 404(b) evidence, Giglio material and any Roviaro witness not 

previously turned over in discovery. See Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 

31 L.Ed.2d 104 (1972); Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L.Ed.2d 639 

(1957). 

Southern District of West Virginia 

LR Cr P 16.1. ARRAIGNMENT AND STANDARD DISCOVERY REQUESTS 

(a) Standard Discovery Request Form 

At arraignment on an indictment, or on an information or complaint in a 

misdemeanor case, counsel for the defendant and the government may make 

standard requests for discovery as contained in the Arraignment Order and Standard 

Discovery Request form available from the clerk and on the court’s website. The form 

shall be signed by counsel for the defendant and the government and entered by the 

magistrate judge. 

. . . (c) Time for government response 

Unless the parties agree otherwise, or the court so orders, within 10 days of 

the Standard Discovery Request, the government must provide the requested material 

to counsel for the defendant and file with the clerk a written response to each of 

defendant's requests. 

ARRAIGNMENT ORDER AND STANDARD DISCOVERY REQUESTS 

. . . 1. On Behalf of the Defendant, the Government Is Requested to: (defense 

counsel must initial all applicable sections) 

. . . h. Disclose to defendant all evidence favorable to defendant, including 

impeachment evidence, and allow defendant to inspect, copy or photograph such 

evidence. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – 25 

Eastern District of Wisconsin 

Criminal L. R. 16. DISCOVERY AND INSPECTION. 

(a) Open File Policy. 

(1) At arraignment, the government must state on the record to the presiding 

judge whether it is following the open file policy as defined in Criminal L. R. 16(a)(2). 

If the government states that it is following the open file policy and the defense 

accepts such discovery materials, then the defense’s discovery obligations under Fed. 

R. Crim. P. 16(b) arise without further government motion or request and both 

parties must be treated for all purposes in the trial court and on appeal as if each had 

filed timely written motions requesting all materials required to be produced under 

Fed. R. Crim. P. 16(a)(1)(A), (B), (C), (D), (E), (F), and (G), and 16 (b)(1)(A), (B), 

and (C), and invoking Fed. R. Crim. P. 16(c). If the government is following the open 

file policy, the government need not respond to and the Court must not hear any 

motion for discovery under Fed. R. Crim. P. 16(a) or 16(b) unless the motion 

complies with subsection (b) of this rule. 

(2) As defined by the United States Attorney’s Office, the “open file policy” 

means disclosure without defense motion of all information and materials listed in 

Fed. R. Crim. P. 16(a)(1)(A), (B), (C), (D), and (F); upon defense request, material 

listed in Fed. R. Crim. P. 16(a)(1)(E); material disclosable under 18 U.S.C. § 3500, 

other than grand jury transcripts; reports of interviews with witnesses the government 

intends to call in its case-in-chief relating to the subject matter of the testimony of the 

witness; relevant substantive investigative reports; and all exculpatory material. The 

government retains the authority to redact from open file material anything (i) that is 

not exculpatory and (ii) that the government reasonably believes is not relevant to the 

prosecution, or would jeopardize the safety of a person other than the defendant, or 

would jeopardize an ongoing criminal investigation. The defense retains the right to 

challenge such redactions by motion to the Court. 

(3) Unless these items contain exculpatory material, “open file materials” do not 

ordinarily include material under Fed. R. Crim. P. 16(a)(1)(G), government attorney 

work product and opinions, materials subject to a claim of privilege, material 

identifying confidential informants, any Special Agent’s Report (SAR) or similar 

investigative summary, reports of interviews with witnesses who will not be called in 

the government’s case-in-chief, rebuttal evidence, documents and tangible objects 

that will not be introduced in the government’s case-in-chief, rough notes used to 

construct formal written reports, and transcripts of the grand jury testimony of 

witnesses who will be called in the government’s case-in-chief. 

. . . (6) If the government elects not to follow the open file policy described in 

Criminal L. R. 16(a)(2), discovery must proceed pursuant to Fed. R. Crim. P. 16 and 

Criminal L. R. 12(a)(3). 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 1 – 26 

Appendix B Table 1: Scope of Disclosure in District Court Local Rules and Orders Requiring Disclosure of Exculpatory and Impeachment Information1

Approach 1 

Defined Scope of Disclosure2

(within the scope of Brady v. Maryland) 

Approach 2 

Open-Ended Scope of Disclosure3

District 

Group 1

Exculpatory material: 

specific definition4

Group 2

Exculpatory material: 

general definition5

Group 3

Impeachment material: 

specific definition6

Group 4

Impeachment material: 

general definition7

Alabama Middle8 X X Alabama Southern9 X X Arkansas Eastern X X California Northern 

X 

Four days prior to the pretrial 

conference, parties must file a pretrial 

conference statement addressing the 

“disclosure of exculpatory or other 

evidence favorable to the defendant on 

the issue of guilt or punishment.” N.D. 

Cal., Crim. L. R. 16-1 and 17.1-1. 

Connecticut X X Florida Northern10 X X 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 1 – 27 

Approach 1 

Defined Scope of Disclosure2

(within the scope of Brady v. Maryland) 

Approach 2 

Open-Ended Scope of Disclosure3

District 

Group 1

Exculpatory material: 

specific definition4

Group 2

Exculpatory material: 

general definition5

Group 3

Impeachment material: 

specific definition6

Group 4

Impeachment material: 

general definition7

Florida Southern X X Georgia Middle X X Georgia Northern X X Georgia Southern 

X 

Upon request, the government shall 

permit defendant’s attorney to inspect 

and copy or photograph “any evidence 

favorable to the defendant.” S.D. Ga., 

L. Crim. R. 16. 

Hawaii X X Idaho X X Kansas X X Kentucky Western X X Louisiana Western X X Massachusetts11 X X 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 1 – 28 

Approach 1 

Defined Scope of Disclosure2

(within the scope of Brady v. Maryland) 

Approach 2 

Open-Ended Scope of Disclosure3

District 

Group 1

Exculpatory material: 

specific definition4

Group 2

Exculpatory material: 

general definition5

Group 3

Impeachment material: 

specific definition6

Group 4

Impeachment material: 

general definition7

Michigan Eastern X Michigan Western X X Missouri Western X X Nebraska X X New Hampshire X X New Jersey X New Mexico X X New York Northern X X North Carolina Eastern 

X 

Upon request of counsel for defendant, 

the Government shall permit the 

counsel for defendant to inspect, copy 

or photograph “any exculpatory 

evidence.” E.D.N.C., Rule 16.1. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 1 – 29 

Approach 1 

Defined Scope of Disclosure2

(within the scope of Brady v. Maryland) 

Approach 2 

Open-Ended Scope of Disclosure3

District 

Group 1

Exculpatory material: 

specific definition4

Group 2

Exculpatory material: 

general definition5

Group 3

Impeachment material: 

specific definition6

Group 4

Impeachment material: 

general definition7

North Carolina Middle 

X 

Discovery motions filed by a defendant 

who is represented by counsel must 

include a statement that counsel has 

“fully reviewed the government’s case 

file” before bringing the motion or a 

statement that such file is not available 

for counsel’s review. M.D.N.C., L. 

Crim. R. 16.1. 

North Dakota X Northern Mariana Islands 

X 

Oklahoma Western X Pennsylvania Western 

X 

The government shall notify the 

defendant of the existence of 

“exculpatory evidence”, and permit its 

inspection and copying by the 

defendant. W.D. Pa., L. Crim. R. 16. 

Tennessee Eastern X X 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 1 – 30 

Approach 1 

Defined Scope of Disclosure2

(within the scope of Brady v. Maryland) 

Approach 2 

Open-Ended Scope of Disclosure3

District 

Group 1

Exculpatory material: 

specific definition4

Group 2

Exculpatory material: 

general definition5

Group 3

Impeachment material: 

specific definition6

Group 4

Impeachment material: 

general definition7

Tennessee Middle X Texas Western X X Vermont X X Washington Western X West Virginia Northern X X West Virginia Southern 

X 

On behalf of the defendant, the 

government is requested to disclose to 

defendant “all evidence favorable to 

defendant, including impeachment 

evidence”, and to allow defendant to 

inspect, copy or photograph such 

evidence. S.D. W. Va., L. R. Crim. P. 

16.1 and Arraignment Order and 

Standard Discovery Requests. 

Wisconsin Eastern 

X 

If the government is following the 

“open file policy” it must disclose . . . 

“all exculpatory material.” E.D. Wis., 

Crim. L. R. 16. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 1 – 31 

 1. This table compares approaches used to establish the scope of the government’s obligations to disclose exculpatory information and/or impeachment material in the thirtyeight districts with a local rule and/or order adopting language either codifying, altering or supplementing one or more of the constitutional tenets established by Brady v. Marylandand its progeny cases (e.g., Giglio). 

 2. Thirty-one local rules or orders establish the scope of the government’s obligation to disclose exculpatory and/or impeachment information by incorporating the parameters established by Brady v. Maryland and its progeny case law, either explicitly requiring the disclosure to be within the scope of Brady, citing Brady alone or with other relevant case 

law, or including definitional language incorporating the basic scope parameters established by Brady and Giglio and their progeny cases. 

 3. Seven local rules or orders have established an open-ended scope of disclosure by requiring broad disclosure of any exculpatory material and no reference to “Brady” or 

“Giglio” material and/or no citation to Brady v. Maryland, United States v. Giglio, or other relevant cases. 

 4. Twenty-one districts have rules and/or orders that specifically define the scope of disclosure of exculpatory material by incorporating all or part of the Brady description of 

information or material that may be “favorable to an accused” and “material either to guilt or punishment” and/or by providing examples of “Brady “ material. Except for the 

District of Massachusetts, these rules or orders explicitly require the disclosure to be within the scope of Brady v. Maryland, or provide citations to Brady alone or with other 

relevant cases.  5. Ten districts have rules and/or orders that very generally define the scope of the government’s disclosure obligations for exculpatory material by requiring the disclosure of 

“Brady” material or exculpatory material in general. These rules or orders explicitly require the disclosure to be within the scope of Brady v. Maryland, or provide citations to Bradyalone or with other relevant cases.  6. Fourteen districts have rules and/or orders that specifically define the scope of disclosure of impeachment material by incorporating all or part of the Giglio description of 

“evidence affecting credibility” that is potentially useful in impeaching government witnesses and/or by providing examples of “Giglio” material or information. Except for the District of Massachusetts, these rules or orders explicitly require the disclosure to be within the scope of United States v. Giglio, or provide citations to Giglio alone or with other relevant cases.  7. Nine districts have rules and/or orders that very generally define the scope of the government’s disclosure obligations for impeachment material by requiring the disclosure 

of “Giglio” material or exculpatory material in general. These rules or orders explicitly require the disclosure to be within the scope of United States v. Giglio, or provide citations to Giglio alone or with other relevant cases. 

 8. In addition to requiring the government to disclose all information and material known to the government which may be favorable to the defendant on the issues of guilt or 

punishment with the scope of Brady v. Maryland, M.D. Ala. Standard Order on Criminal Discovery requires disclosure of exculpatory material “without regard to materiality.”  9. In addition to requiring the government to disclose all information and material known to the government which may be favorable to the defendant on the issues of guilt or punishment with the scope of Brady v. Maryland, S.D. Ala. Local Rule 16.13 Criminal Discovery explicitly requires disclosure of exculpatory material “without regard to 

materiality.”  10. In addition to requiring the government to disclose all information and material known to the government which may be favorable to the defendant on the issues of guilt or punishment with the scope of Brady v. Maryland, N.D. Fla. Rule 26.3 Discovery-Criminal explicitly requires disclosure of exculpatory material “without regard to materiality.”  11. Although the District of Massachusetts’ local rules regarding discovery in criminal cases do not explicitly reference Brady or other relevant case law, Local Rule 116.2 

provides a definition of exculpatory information which incorporates the basic scope parameters established by Brady and Giglio: “Exculpatory information includes, but may not be 

limited to, all information that is material and favorable to the accused because it tends to cast doubt on defendant’s guilt as to any essential element . . . cast doubt on the credibility 

or accuracy of any evidence that the government anticipates offering in its case-in-chief . . .” D. Mass. Local Rule 116.2(A). 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 2 – 32 

Appendix B Table 2: Time frame for Disclosure in District Court Local Rules and Orders Requiring Disclosure of Exculpatory and Impeachment Material1District 

Group A2

Time frame applies to 

both disclosure of Brady

(exculpatory) and Giglio

(impeachment) material 

Group B3

Time frame applies only to 

disclosure of Brady

(exculpatory) material 

Group C4

Time frame applies only to 

disclosure of Giglio 

(impeachment) material 

Group D5

No time frame 

specified in the rule 

Alabama Middle 

X 

(at arraignment, or on a date 

otherwise set by the court for 

good cause shown) 

Alabama Southern 

X 

(at arraignment, or on a date 

otherwise set by the court for 

good cause shown) 

Arkansas Eastern 

X 

(in time for effective use at 

trial) 

California Northern 

X 

(within 14 days after a 

defendant’s plea of not guilty, 

or if the parties stipulate 

within 21 days after entry of 

plea they shall stipulate to a 

disclosure schedule) 

Connecticut 

X 

(within 14 days from the date 

of arraignment) 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 2 – 33 

District 

Group A2

Time frame applies to 

both disclosure of Brady

(exculpatory) and Giglio

(impeachment) material 

Group B3

Time frame applies only to 

disclosure of Brady

(exculpatory) material 

Group C4

Time frame applies only to 

disclosure of Giglio 

(impeachment) material 

Group D5

No time frame 

specified in the rule 

Florida Northern 

X 

(within 5 days after the 

defendant’s arraignment, or 

promptly after acquiring 

knowledge thereof) 

Florida Southern 

X 

(not later than 14 days after 

the arraignment, or such 

other time as ordered by the 

court) 

Georgia Middle 

X 

(as soon as reasonably 

possible) 

X 

(the evening before the 

witness’s anticipated 

testimony) 

Georgia Northern 

X 

(sufficiently in advance of trial 

to allow a defendant to use it 

effectively) 

X 

(no later than production of 

the Jenck’s Act statements 

(i.e., after direct examination 

of the government witness at 

issue)) 

Georgia Southern 

X 

(within 7 days after 

arraignment) 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 2 – 34 

District 

Group A2

Time frame applies to 

both disclosure of Brady

(exculpatory) and Giglio

(impeachment) material 

Group B3

Time frame applies only to 

disclosure of Brady

(exculpatory) material 

Group C4

Time frame applies only to 

disclosure of Giglio 

(impeachment) material 

Group D5

No time frame 

specified in the rule 

Hawaii 

X 

(within 7 days after 

arraignment unless otherwise 

ordered by the court) 

X 

(as ordered by the court) 

Idaho 

X 

(within 7 calendar days of the 

date of the arraignment on the 

indictment) 

Kansas 

X 

(no later than 30 days after 

arraignment) 

Kentucky Western 

X 

(in time for effective use at 

trial) 

Louisiana Western 

X 

(not less than 7 days prior to 

trial) 

Massachusetts6

X 

(within 28 days of 

arraignment or within 14 days 

of receipt by the government 

of a written statement by the 

defendant that no waiver will 

be filed) 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 2 – 35 

District 

Group A2

Time frame applies to 

both disclosure of Brady

(exculpatory) and Giglio

(impeachment) material 

Group B3

Time frame applies only to 

disclosure of Brady

(exculpatory) material 

Group C4

Time frame applies only to 

disclosure of Giglio 

(impeachment) material 

Group D5

No time frame 

specified in the rule 

Michigan Eastern 

X 

(within 10 days from the date 

of arraignment or such other 

date as may be set by the judge 

to whom the case is assigned) 

Michigan Western 

X 

(within 21 days of the initial 

arraignment) 

X 

(documents should be

available for effective use at 

the time of trial) 

Missouri Western 

X 

(within 10 days from the date 

of arraignment) 

X 

(no later than 15 days prior to 

trial) 

Nebraska 

X 

(as soon as practicable upon 

arraignment of defendant and 

entry of a plea of not guilty) 

New Hampshire X (at least 21 days before trial) New Jersey 

X 

(within 10 days from the date 

hereof—the order of 

discovery and inspection) 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 2 – 36 

District 

Group A2

Time frame applies to 

both disclosure of Brady

(exculpatory) and Giglio

(impeachment) material 

Group B3

Time frame applies only to 

disclosure of Brady

(exculpatory) material 

Group C4

Time frame applies only to 

disclosure of Giglio 

(impeachment) material 

Group D5

No time frame 

specified in the rule 

New Mexico 

X 

(rule refers to case law—“by 

the time required by the 

applicable law”) 

New York Northern 

X 

(14 days after arraignment or 

on a date the court otherwise 

sets for good cause shown) 

X 

(not less than 14 days prior to 

the start of jury selection, or 

on a date the court sets 

otherwise for good cause 

shown.) 

North Carolina Eastern 

X 

(at the pretrial conference 

which shall take place within 

21 days after indictment or 

initial appearance, whichever 

comes later) 

North Carolina Middle X North Dakota X Northern Mariana Islands 

X 

(at pretrial conference held on 

request of any party or on 

court’s motion) 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 2 – 37 

District 

Group A2

Time frame applies to 

both disclosure of Brady

(exculpatory) and Giglio

(impeachment) material 

Group B3

Time frame applies only to 

disclosure of Brady

(exculpatory) material 

Group C4

Time frame applies only to 

disclosure of Giglio 

(impeachment) material 

Group D5

No time frame 

specified in the rule 

Oklahoma Western 

X 

(at discovery conference to be 

held within 10 days of the 

appearance before Magistrate 

Judge where a plea of not 

guilty was entered) 

Pennsylvania Western X (at time of arraignment) Tennessee Eastern X 

(in time for use at trial7) 

Tennessee Middle 

X 

(on or before 14 days from the 

date of the arraignment of a 

defendant) 

Texas Western 

X 

(14 days after arraignment; or 

if the defendant has waived 

arraignment, within 14 days 

after the latest scheduled 

arraignment date8) 

Vermont 

X 

(within 14 days of 

arraignment) 

X 

(not less than 14 days prior to 

the start of jury selection) 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 2 – 38 

District 

Group A2

Time frame applies to 

both disclosure of Brady

(exculpatory) and Giglio

(impeachment) material 

Group B3

Time frame applies only to 

disclosure of Brady

(exculpatory) material 

Group C4

Time frame applies only to 

disclosure of Giglio 

(impeachment) material 

Group D5

No time frame 

specified in the rule 

Washington Western 

X 

(at discovery conference to be 

held within 14 days of every 

arraignment at which 

defendant enters a plea of not 

guilty) 

West Virginia Northern 

X 

(within 10 days of 

arraignment or filing of an 

information and indictment) 

West Virginia Southern 

X 

(within 14 days from the date 

of the “Arraignment Order 

and Standard Discovery 

Request Form” required to be 

entered at arraignment on an 

indictment, or on an 

information or complaint in a 

misdemeanor case) 

Wisconsin Eastern X 

(at arraignment) 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 2 – 39 

 1. This table identifies and categories the time frame for pretrial disclosure of Brady and/or Giglio evidence (if any) in the thirty-eight local rules or orders adopting language either codifying, altering or supplementing one or more of the constitutional tenets established by Brady v. Maryland and its progeny cases (e.g., Giglio).  2. Fourteen districts have a local rule and/or order that establishes a time frame that applies to the pretrial disclosure of both Brady (exculpatory) material and/or Giglio 

(impeachment) evidence. For identification of the specific time frames applied in these fourteen rules or orders, see Table 2A. 

 3. Twenty-one districts have a local rule and/or order that establishes a time frame that only applies to the pretrial disclosure of Brady (exculpatory) material/evidence. For 

identification of the specific time frames applied in these twenty-one rules or orders, see Table 2B. 

 4. Seven of the twenty-one districts that have a local rule or order with a timing provision for disclosing exculpatory material have a separate time frame that only governs the 

pretrial disclosure of Giglio (impeachment) evidence/material. For identification of the specific time frames applied in these seven rules or orders, see Table 2C.  5. Three of the thirty-eight local rules or orders requiring pretrial disclosure of exculpatory and/or impeachment material do not establish a disclosure time frame for either 

type of evidence.  6. D. Mass. L. R. 116.2(B) establishes different disclosure time frames for different categories of exculpatory material. Although pretrial disclosure of exculpatory and/or 

impeachment information could potentially fall within time frames requiring disclosure within twenty-eight days of arraignment or no later than twenty-one days before trial, the time frame requiring disclosure within twenty-eight days of arraignment was listed in this table because the rule specifically provides that “[i]f an item of exculpatory information 

can reasonably be deemed to fall into more than one of the foregoing categories, it shall be deemed for purposes of determining when it must be produced to fall into the category which requires the earliest production.” L.R. 116.2(B)(1)(2) & (5).  7. E.D. Tenn. Discovery and Scheduling Order references United States v. Presser, 844 F.2d 1275 (6th Cir. 1988), for the timing of disclosure of exculpatory and impeachment 

evidence.  8. W.D. Tex. Rule CR-16 is the only rule or order, except for D. Mass. L. R. 116.2(b), that addresses disclosure of exculpatory and impeachment material prior to other court 

proceedings other than trial (i.e., pretrial release or detention hearing—no later than commencement of the hearing; any other pretrial hearing—not later than forty-eight hours before the hearing). Rule CR-16(b)(1)(A) & (B). 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Tables 2A–2C – 40 

Appendix B Tables 2A–2C: Comparison of Time Frames for Disclosure in the District Court Local Rules and Orders Requiring Disclosure of Exculpatory and Impeachment Material1

TABLE 2A: Time frame for disclosure of Brady and Giglio evidence/material 

District At arraignment 

Within 

5 days after 

arraignment 

Within 

7 days after 

arraignment 

Within 

14 days after 

arraignment 

Within 

28 days after 

arraignment 

Within 

30 days after 

arraignment 

At least 21 days 

before trial 

Not less than 

7 days prior 

to trial 

In time for 

effective use 

at trial 

Alabama Middle X Alabama Southern X Arkansas Eastern X Connecticut X Florida Northern X Florida Southern X Idaho X Kansas X Louisiana Western X Massachusetts2 X New Hampshire X Tennessee Eastern X Texas Western X West Virginia Southern X 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Tables 2A–2C – 41 

 TABLE 2B: Time frame for disclosure of only Brady (exculpatory) material3

District 

At 

arraignment 

As soon as 

reasonably 

possible 

As soon as 

practicable 

upon 

arraignment 

and entry of 

guilty plea 

Within 7 

days after 

arraignment 

Within 10 

days after 

arraignment 

Within 10 

days after 

not guilty 

plea entered 

Within 14 

days after 

arraignment 

Within 

14 days after 

not guilty 

plea 

Within 21 

days after 

arraignment 

Within 21 

days after 

indictment 

or initial 

appearance, 

whichever 

comes later 

Within 10 

days from 

order of 

discovery 

and 

inspection 

At pretrial 

conference 

held on any 

party’s 

request or 

court’s 

motion 

In time for 

effective use 

at trial 

California Northern X Georgia Middle X Georgia Northern X Georgia Southern X Hawaii X Kentucky Western X Michigan Eastern X Michigan Western X Missouri Western X Nebraska X New Jersey X New York Northern X North Carolina Eastern4 X 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Tables 2A–2C – 42 

 TABLE 2B: Time frame for disclosure of only Brady (exculpatory) material3

District 

At 

arraignment 

As soon as 

reasonably 

possible 

As soon as 

practicable 

upon 

arraignment 

and entry of 

guilty plea 

Within 7 

days after 

arraignment 

Within 10 

days after 

arraignment 

Within 10 

days after 

not guilty 

plea entered 

Within 14 

days after 

arraignment 

Within 

14 days after 

not guilty 

plea 

Within 21 

days after 

arraignment 

Within 21 

days after 

indictment 

or initial 

appearance, 

whichever 

comes later 

Within 10 

days from 

order of 

discovery 

and 

inspection 

At pretrial 

conference 

held on any 

party’s 

request or 

court’s 

motion 

In time for 

effective use 

at trial 

Northern Mariana Islands X Oklahoma Western X Pennsylvania Western X Tennessee Middle X Vermont X Washington Western 

 X 

West Virginia Northern X Wisconsin Eastern X 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Tables 2A–2C – 43 

TABLE 2C: Time frame for disclosure of only Giglio (impeachment) material 

District Evening before witness’s anticipated testimony 

No later than 

production of Jenck’s 

Act statements 

As ordered 

by the court 

No later than 15 days 

prior to trial 

Not less than 14 days 

prior to jury selection 

In time for 

effective use at trial 

Georgia Middle X Georgia Northern X Hawaii X Michigan Western X Missouri Western X New York Northern X Vermont X 

 1. As shown in Table 2 infra, except for three districts (D.N.M., M.D.N.C., D.N.D.), all of the “broader” disclosure rules and orders in the remaining thirty-five districts 

establish a specific pretrial time frame in which the government must disclose to the defendant Brady (exculpatory) material and/or Giglio (impeachment) material. Based upon 

explicit language in these rules and orders, a disclosure time frame was applied to both exculpatory and impeachment material in fourteen districts, and only to disclosure of 

exculpatory material in twenty-one districts. In seven of the twenty-one districts with a timing requirement for disclosing only exculpatory material, the districts’ rule and/or order 

also has a separate time frame that applies only to the disclosure of impeachment material. Tables 2A, 2B, and 2C identify the different time frames imposed by the rules and orders 

in each of these three categories of districts.  2. D. Mass. L. R. 116.2(B) establishes different disclosure time frames for different categories of exculpatory material. Although pretrial disclosure of exculpatory and/or impeachment information could potentially fall within time frames requiring disclosure within twenty-eight days of arraignment or no later than twenty-one days before trial, the 

time frame requiring disclosure within twenty-eight days of arraignment was listed in this table because the rule specifically provides that “[i]f an item of exculpatory information can reasonably be deemed to fall into more than one of the foregoing categories, it shall be deemed for purposes of determining when it must be produced to fall into the category 

which requires the earliest production.” L.R. 116.2(B)(1)(2) & (5).  3. Seven of the twenty-one districts with time frames for disclosure of exculpatory material only also have a separate timing provision that establishes a different time frame for 

disclosure of impeachment material. See Table 2C, which identifies the specific time frames that apply only to disclosure of impeachment material. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 3 – 44 

Appendix B 

Table 3: Elimination of the Brady Materiality Requirement in Local Rules and Orders Requiring 

Disclosure of Exculpatory and Impeachment Information1

District 

Group A 

Explicit elimination of Brady 

materiality requirement2

Group B 

Implicit elimination of Brady 

materiality requirement3

Alabama Middle 

X

At arraignment, or on a date otherwise set by the 

court for good cause shown, the government 

shall tender to defendant . . . All information and 

material known to the government which may be 

favorable to the defendant on the issues of guilt 

or punishment, without regard to materiality, 

within the scope of Brady v. Maryland, 373 U.S. 

83 (1963). M.D. Ala., Standing Order on 

Criminal Discovery. 

Alabama Southern 

X 

At arraignment, or on a date otherwise set by the 

court for good cause shown, the government 

shall tender to defendant. . . All information and 

material known to the government which may be 

favorable to the defendant on the issues of guilt 

or punishment, without regard to materiality, 

within the scope of Brady v. Maryland, 

373 U.S. 83 (1963). S.D. Ala., L. R. 16.13. 

Arkansas Eastern 

California Northern 

X 

Four days prior to the pretrial conference, parties 

must file a pretrial conference statement 

addressing the “disclosure of exculpatory or 

other evidence favorable to the defendant on the 

issue of guilt or punishment.” N.D. Cal., Crim. L. 

R. 16-1 and 17.1-1. 

Connecticut 

Florida Northern 

X 

The government’s attorney shall provide . . . 

within five days after the defendant’s 

arraignment, or promptly after acquiring 

knowledge thereof . . . All information and 

material known to the government which may be 

favorable to the defendant on the issues of guilt 

or punishment, without regard to materiality, 

that is within the scope of Brady v. Maryland, 373 

U.S. 83 (1963), and United States v. Agurs, 427 

U.S. 97 (1976). N.D. Fla., Rule 26.3. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 3 – 45 

District 

Group A 

Explicit elimination of Brady 

materiality requirement2

Group B 

Implicit elimination of Brady 

materiality requirement3

Florida Southern 

Georgia Middle 

Georgia Northern 

Georgia Southern 

X 

Upon request, the government shall permit 

defendant’s attorney to inspect and copy or 

photograph “any evidence favorable to the 

defendant.” S.D. Ga., L. Crim. R. 16. 

Hawaii 

Idaho 

Kansas 

Kentucky Western 

Louisiana Western 

Massachusetts 

Michigan Eastern 

Michigan Western 

Missouri Western 

Nebraska 

New Hampshire 

New Jersey 

New Mexico 

New York Northern 

North Carolina Eastern 

X 

Upon request of counsel for defendant, the 

Government shall permit the counsel for 

defendant to inspect, copy or photograph “any 

exculpatory evidence.” E.D.N.C., Rule 16.1. 

North Carolina Middle 

X 

Discovery motions filed by a defendant who is 

represented by counsel must include a statement 

that counsel has “fully reviewed the government’s 

case file” before bringing the motion or a 

statement that such file is not available for 

counsel’s review. M.D.N.C., L. Crim. R. 16.1. 

North Dakota 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 3 – 46 

District 

Group A 

Explicit elimination of Brady 

materiality requirement2

Group B 

Implicit elimination of Brady 

materiality requirement3

Northern Mariana 

Islands 

Oklahoma Western 

Pennsylvania Western 

X 

The government shall notify the defendant of the 

existence of “exculpatory evidence,” and permit 

its inspection and copying by the defendant. 

W.D. Pa., L. Crim. R. 16. 

Tennessee Eastern 

Tennessee Middle 

Texas Western 

Vermont 

Washington Western 

West Virginia Northern 

West Virginia Southern 

X 

On behalf of the defendant, the government is 

requested to disclose to defendant “all evidence 

favorable to defendant, including impeachment 

evidence,” and to allow defendant to inspect, 

copy or photograph such evidence. S.D. W. Va., 

L. R. Crim. P. 16.1 and Arraignment Order and 

Standard Discovery Requests. 

Wisconsin Eastern 

X 

If the government is following the “open file 

policy” it must disclose . . . “all exculpatory 

material.” E.D. Wis., Crim. L. R. 16. 

 1. This table identifies the local rules and orders that explicitly or implicitly require the disclosure of exculpatory or 

impeachment material without regard to materiality in the thirty-eight districts with a local rule and/or order adopting language 

either codifying, altering or supplementing one or more of the constitutional tenets established by Brady v. Maryland and its 

progeny cases (e.g., Giglio). 

 2. Three districts (M.D. Ala., S.D. Ala., N.D. Fla.) have rules or orders that explicitly require disclosure of exculpatory 

material “without regard to materiality,” while also requiring the disclosure of information “favorable to the defendant on the

issues of guilt or punishment” to be “within the scope of Brady v. Maryland.” The potential for confusion exists because this 

language seems to be inconsistent if one interprets “within the scope of Brady v. Maryland” to include the Brady materiality 

requirement. 

 3. Seven local rules or orders implicitly suggest that Brady materiality is not required because the rule establishes an openended scope of disclosure by broadly requiring disclosure of “any exculpatory evidence” or “any evidence favorable to the 

defendant,” with no mention of materiality, Brady v. Maryland, or any of the Brady progeny cases. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 4 – 47 

Appendix B Table 4: “Defense Request” Disclosure Prerequisite in District Court Rules and Orders Requiring Disclosure of Exculpatory and Impeachment Information1

Formal request by defendant for 

Brady or Giglio material 

Formal request by defendant for 

Fed. R. Crim. P. 16 discovery material 

District 

Group A 

Required2

Group B 

Not required3

Group 1 

Required4

Group 2 

Not required5

Group 3 

Unable to determine6

Alabama Middle X (implicit) X (implicit) Alabama Southern X (implicit) X (implicit) Arkansas Eastern X (explicit) X California Northern X (implicit) X (implicit) Connecticut X (implicit) X Florida Northern X (implicit) X Florida Southern X (implicit) X Georgia Middle X X Georgia Northern X X Georgia Southern X X Hawaii X (explicit) X (explicit) Idaho X (implicit) X Kansas X (implicit) X (explicit) Kentucky Western X (implicit) X 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 4 – 48 

Formal request by defendant for 

Brady or Giglio material 

Formal request by defendant for 

Fed. R. Crim. P. 16 discovery material 

District 

Group A 

Required2

Group B 

Not required3

Group 1 

Required4

Group 2 

Not required5

Group 3 

Unable to determine6

Louisiana Western X (implicit) X Massachusetts X (explicit) X (implicit) Michigan Eastern X X Michigan Western X (implicit) X Missouri Western X (implicit) X Nebraska X (implicit) X New Hampshire X (explicit) X (explicit) New Jersey X (implicit) X New Mexico X (implicit) X (explicit) New York Northern X (implicit) X (implicit) North Carolina Eastern X X North Carolina Middle X (implicit) X North Dakota X (implicit) X Northern Mariana Islands X (implicit) X Oklahoma Western X (implicit) X Pennsylvania Western X (implicit) X Tennessee Eastern X (implicit) X 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 4 – 49 

Formal request by defendant for 

Brady or Giglio material 

Formal request by defendant for 

Fed. R. Crim. P. 16 discovery material 

District 

Group A 

Required2

Group B 

Not required3

Group 1 

Required4

Group 2 

Not required5

Group 3 

Unable to determine6

Tennessee Middle X (implicit) X Texas Western X (explicit) X (explicit) Vermont X (implicit) X (implicit) Washington Western X X West Virginia Northern X (implicit) X West Virginia Southern X (implicit) Wisconsin Eastern X (implicit) X7 X (explicit)8 1. This table identifies whether the thirty-eight local rules or orders adopting language either codifying, altering or supplementing one or more of the constitutional tenets 

established by Brady v. Maryland and its progeny cases (e.g., Giglio) explicitly require the defendant to make a formal request for Brady and/or Giglio material (contrary to Supreme 

Court case law interpreting Brady) and/or whether the local rules or orders explicitly state that defendant does not have to make a formal request to receive Fed. R. Crim. P. 16(a) disclosures from the government (contrary to the defense request prerequisite required by Fed. R. Crim. P. 16). First, each district’s local rule and/or order is placed in either Group A or B depending on whether the local rule or order addresses whether or not the defendant is required to make a formal request for Brady/Giglio material or “exculpatory” and/or “impeachment” material. Next, each local rule or order is also placed into either Group 1, 2, or 3, depending on whether the local rule addresses whether or not the 

defendant is required to make a formal request for Fed. R. Crim. P. 16(a) discovery material.  2. Six districts have a rule and/or order that explicitly requires the defendant to make a formal request for Brady and/or Giglio material or “exculpatory” and/or 

“impeachment” material. 3. Rule and/or order explicitly states that the defendant does not have to make a formal request for Brady and/or Giglio material [identified as “(explicit)”—five districts]; or 

the rule and/or order implicitly negates the need for a formal request from defendant for Brady and/or Giglio material by specifically requiring disclosure by the government of 

Brady and/or Giglio information or “exculpatory” or “impeachment” material within a specified time frame with no mention of whether a defense request is needed [identified as 

“(implicit)”—twenty-seven districts].  4. Seventeen districts have a rule and/or order that explicitly requires the defendant to make a formal request for Fed. R. Crim. P. 16(a) material.
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix B – Table 4 – 50 

 5. Rule and/or order explicitly states that defendant does not have to make a formal request for Fed. R. Crim. P. 16(a) discovery material [identified as “(explicit)”—six 

districts)]; or the rule and/or order implicitly negates the need for a formal request from defendant for Rule 16(a) material by specifically requiring disclosure by the government of Rule 16(a) material within a specified time frame with no mention of whether a defense request is needed [identified as “(implicit)”—six districts]. These twelve districts can be 

considered part of a grouping of districts referred to as “automatic disclosure districts”—the government must disclose all required Rule 16(a) discovery material to the defendant regardless of whether the defense has requested it, including any exculpatory and impeachment material required to be disclosed pursuant to Brady and Giglio as defined in the rule 

or order.  6. Unable to determine because the rule or order does not specifically address Fed. R. Crim. P. 16(a) disclosure by the government. 7. Defense request needed for disclosure of materials listed in Fed. R. Crim. P. 16(a)(1)(E)—documents and objects. E.D. Wis. Crim. L.R. 16(a)(2).  8. Defense request not needed for disclosure of all information and material listed in Fed. R. Crim. P. 16(a)(1)(A), (B), (C), (D), and (F). E.D. Wis. Crim. L.R. 16(a)(2). 
Appendix C: Tables 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 2

Appendix C: Contents 

Table 1 Response Rates to the Survey..................................................................................... 5 

Table 2 Judges’ Status .............................................................................................................. 5 

Table 3 Judges’ Years on the Bench ........................................................................................ 5 

Table 4 Attorney Status ........................................................................................................... 6 

Table 5 Attorneys’ Years of Experience .................................................................................. 6 

Table 6 Does your district have a local rule, standing order, or other policy requiring 

disclosure by the prosecution to the defense?.................................................................. 6 

Table 7 Are there significant differences between your local rule, order, or policy 

and Rule 16? ...................................................................................................................... 6 

Table 8 Do the federal prosecutors in your district understand their pretrial discovery 

and disclosure obligations pursuant to local rule or, if no local rule, their 

constitutional disclosure obligations?.............................................................................. 7 

Table 9 Do federal prosecutors in your district follow a consistent approach 

to disclosure? ..................................................................................................................... 8 

Table 10 Does your district’s local rule require federal prosecutors to disclose 

exculpatory or impeaching information without regard to materiality? ....................... 9 

Table 11 Has elimination of the materiality requirement in your district reduced 

problems or confusion? .................................................................................................... 9 

Table 12 Does your district require federal prosecutors to disclose within a fixed time 

after indictment or arraignment? ..................................................................................... 9 

Table 13 Has the timing requirement in your district caused problems for federal 

prosecutors?..................................................................................................................... 10 

Table 14 Is the timing requirement in your district important to the defense? ................. 10 

Table 15 How often in the past 5 years have you been unable to obtain cooperation 

from a witness because of the your district’s timing requirement?.............................. 11 

Table 16 Does your district require federal prosecutors to disclose before trial 

government witness statements that could be used to impeach? ................................. 11 

Table 17 Does your district require defense counsel to disclose before trial anticipated 

defense witness statements that could be used to impeach?......................................... 11 

Table 18 Number of cases in the past 5 years in which you believe your district’s local 

rule requirements of disclosure of exculpatory information resulted in threats or 

harm to a prosecution witness........................................................................................ 12 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 3

Table 19 Number of cases in the past 5 years in which you believe your district’s 

requirements of disclosure of Giglio information resulted in threats or harm to a 

prosecution witness......................................................................................................... 12 

Table 20 Number of cases in the past 5 years in which the prosecution requested a 

protective order prohibiting or delaying required disclosure based on witness safety 

or other security concerns. ............................................................................................. 13 

Table 21 Number of cases in the past 5 years in which you believe the government failed 

to provide exculpatory or Giglio information in compliance with the local rule........ 14 

Table 22 Number of cases in the past 5 years in which you believe the suspected 

violation was due to materiality concerns. .................................................................... 14 

Table 23 Number of cases in the past 5 years in which the defense alleged that the 

government failed to comply with disclosure obligations. ........................................... 15 

Table 24 Number of cases in the past 5 years in which the court concluded that the 

government failed to comply with disclosure obligations. ........................................... 15 

Table 24 (cont’d) ............................................................................................................... 16 

Table 25 What was the nature of the most frequent violation by the government? .......... 17 

Table 26 What remedial steps were taken by the court?...................................................... 18 

Table 26 (cont’d) ............................................................................................................... 19 

Table 27 Overall satisfaction with prosecutor compliance with discovery obligations. .... 20 

Table 28 Do the defense attorneys in your district understand their pretrial discovery 

and disclosure obligations?............................................................................................. 21 

Table 29 Number of cases in the past 5 years in which the court concluded that 

defense counsel failed to comply with disclosure obligations. ..................................... 22 

Table 29 (cont’d) ............................................................................................................... 23 

Table 30 What was the nature of the most frequent violation by the defense? .................. 23 

Table 30 (cont’d) ............................................................................................................... 24 

Table 31 What remedial steps were taken by the court?...................................................... 25 

Table 31 (cont’d) ............................................................................................................... 26 

Table 32 Overall satisfaction with defense counsel compliance with discovery 

obligations. ...................................................................................................................... 27 

Table 33 Do you favor amending Rule 16?........................................................................... 28 

Table 34 Do you favor amending Rule 16?........................................................................... 28 

Table 35 Do you favor amending Rule 16?........................................................................... 29 

Table 36 Do you favor amending Rule 16?........................................................................... 29 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 4

Table 37 Why an amendment to Rule 16 is needed............................................................. 30 

Table 38 Why an amendment to Rule 16 is not needed. ..................................................... 31 

Table 39 Would eliminating the Brady materiality requirement result in changes in the 

frequency of defense motions for Brady violations? ..................................................... 32 

Table 40 Should victim or witness information be disclosed? ............................................ 33 

Table 41 Should victim or witness information be disclosed? ............................................ 33 

Table 42 Should allegations of misconduct by law enforcement witnesses be disclosed? . 34 

Table 43 Should allegations of misconduct by law enforcement witnesses be disclosed? . 34 

Table 44 Should all impeachment information concerning defense witnesses be 

disclosed? ......................................................................................................................... 35 

Table 45 Should all impeachment information concerning defense witnesses be 

disclosed? ......................................................................................................................... 35 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 5 

Table 1 

Response Rates to the Survey 

All 

Judges1

Chief 

District 

Judges 

Active 

District 

Judges 

Senior 

District 

Judges 

Magistrate 

Judges 

All 

Attorneys 

Federal 

Defenders 

Private 

Attorneys 

U.S. 

Attorneys 

Offices 

Surveys Sent 1,505 91 493 338 583 16,016 1,290 14,726 93 

Surveys Received 644 51 238 115 240 5,159 612 4,547 85 Response Rate1 43% 56% 48% 34% 41% 32% 47% 31% 91% 

1 Three of the surveys received from judges each represented the responses of an entire district or a group of judges within a district. These surveys and the judges they represent 

are excluded from the table and the calculation of the response rate. 

Table 2 

Judges’ Status 

Judge Status 

Chief District Judge (n=47) 7% Active District Judge (n=236) 37% 

Senior District Judge (n=114) 18% Magistrate Judge (n=236) 37% 

Table 3 

Judges’ Years on the Bench 

District Judges (n=397)

 Less 

Than 

5 Years 

5 – 10 

Years 

11 – 15 

Years 

More 

Than 

15 Years 

Years 10% 25% 17% 48% 

Magistrate Judges (n=235) 

 Less 

Than 

5 Years 

5 – 10 

Years 

11 – 15 

Years 

More 

Than 

15 Years 

Years 27% 23% 17% 33% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 6 

Table 4 

Attorney Status 

Attorney Status Private Attorney (n=4,547) 88% 

Federal Defender (n=612) 12% 

Table 5 

Attorneys’ Years of Experience 

Mean Median 

Private Attorney (n=4,531) 23.7 years 24 years 

Federal Defender (n=611) 19.5 years 19 years 

Table 6 

Does your district have a local rule, standing order, or other policy requiring disclosure by the prosecution to the defense? 

All 

Judges 

(n=633) 

District 

Judges 

(n=397) 

Magistrate 

Judges 

(n=236) 

All 

Attorneys 

(n=5,519) 

Federal 

Defenders 

(n=612) 

Private 

Attorneys 

(n=4,547) 

 U.S. 

Attorney 

Offices 

(n=85) 

Yes: Rule, Order, or Policy 36% 35% 37% 38% 34% 39% 47% 

Table 7 

Are there significant differences between your local rule, order, or policy and Rule 16? 

All 

Judges 

(n=220) 

District 

Judges 

(n=135) 

Magistrate 

Judges 

(n=85) 

All 

Attorneys 

(n=1,935) 

Federal 

Defenders 

(n=204) 

Private 

Attorneys 

(n=1,731) 

 U.S. 

Attorney 

Offices 

(n=40) 

Yes: Significant Differences 25% 25% 24% 34% 38% 33% 25% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 7 

Table 8 

Do the federal prosecutors in your district understand their pretrial discovery and disclosure 

obligations pursuant to local rule or, if no local rule, their constitutional disclosure obligations? 

Judges Local Rule No Local Rule

All 

Judges 

(n=225) 

District 

Judges 

(n=138) 

Magistrate 

Judges 

(n=87) 

All 

Judges 

(n=403) 

District 

Judges 

(n=256) 

Magistrate 

Judges 

(n=147) 

Always 47% 50% 41% 47% 51% 40% 

Usually 51% 48% 55% 48% 45% 53% Sometimes 3% 2% 3% 4% 4% 5% Rarely - - - <1% <1% 1% Never - - - - - - Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=1,959) 

Federal 

Defenders 

(n=207) 

Private 

Attorneys 

(n=1,752) 

All 

Attorneys 

(n=3,184) 

Federal 

Defenders 

(n=403) 

Private 

Attorneys 

(n=2,781) 

Always 23% 3% 26% 12% 2% 13% 

Usually 59% 59% 59% 48% 33% 50% Sometimes 15% 28% 13% 28% 41% 26% Rarely 3% 9% 3% 11% 22% 10% Never <1% - <1% <1% 1% <1% 

U.S. Attorneys Local Rule No Local Rule

U.S. Attorney 

Offices 

(n=40) 

U.S. Attorney 

Offices 

(n=45) 

Always 80% 78% 

Usually 20% 22% Sometimes - - Rarely - - Never - - 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 8 

Table 9 

Do federal prosecutors in your district follow a consistent approach to disclosure? 

Local Rule No Local Rule

All 

Judges 

(n=225) 

District 

Judges 

(n=138) 

Magistrate 

Judges 

(n=87) 

All 

Judges 

(n=402) 

District 

Judges 

(n=257) 

Magistrate 

Judges 

(n=145) 

Always 32% 37% 25% 35% 35% 34% 

Usually 56% 54% 60% 53% 56% 48% Sometimes 9% 7% 13% 9% 7% 14% Rarely 2% 1% 2% 2% 2% 3% Never - - - - - - 

Local Rule No Local Rule

All 

Attorneys 

(n=1,960) 

Federal 

Defenders 

(n=207) 

Private 

Attorneys 

(n=1,753) 

All 

Attorneys 

(n=3,183) 

Federal 

Defenders 

(n=403) 

Private 

Attorneys 

(n=2,780) 

Always 16% 2% 18% 9% 1% 10% 

Usually 50% 42% 52% 40% 24% 42% Sometimes 24% 34% 22% 29% 37% 28% Rarely 8% 18% 7% 17% 28% 16% Never 2% 4% 2% 4% 9% 3% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 9 

Table 10 

Does your district’s local rule require federal prosecutors to disclose exculpatory or 

impeaching information without regard to materiality? 

All 

Attorneys 

(n=1,936) 

Federal 

Defenders 

(n=205) 

Private 

Attorneys 

(n=1,721) 

U.S. 

Attorney 

Offices 

(n=40) 

Yes: Disclosure Required 46% 23% 49% 28% 

Table 11 

Has elimination of the materiality requirement in your district reduced problems or confusion? 

All 

Attorneys 

(n=881) 

Federal 

Defenders 

(n=48) 

Private 

Attorneys 

(n=833) 

U.S. 

Attorney 

Offices 

(n=10) 

Reduced Problems in Most Cases 39% 38% 40% 10% 

Reduced Problems in Some Cases 32% 27% 32% 20% Has Not Made a Difference 23% 25% 23% 60% Other Response 6% 10% 6% 10% 

Table 12 

Does your district require federal prosecutors to disclose within a fixed time after indictment or arraignment? 

All 

Judges 

(n=222) 

District 

Judges 

(n=136) 

Magistrate 

Judges 

(n=86) 

All 

Attorneys 

(n=1,936) 

Federal 

Defenders 

(n=206) 

Private 

Attorneys 

(n=1,730) 

 U.S. 

Attorney 

Offices 

(n=40) 

Yes: Fixed Time Requirement 64% 64% 64% 60% 54% 61% 58% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 10 

Table 13 

Has the timing requirement in your district caused problems for federal prosecutors? 

All 

Judges 

(n=142) 

District 

Judges 

(n=87) 

Magistrate 

Judges 

(n=55) 

U.S. 

Attorney 

Offices 

(n=23) 

No Problems 41% 41% 40% 26% 

Caused Minor Problems in Some Cases 39% 40% 38% 48% Caused Minor Problems in Most Cases 1% 2% - - Caused Serious Problems in Some Cases 3% 3% 2% 17% Caused Serious Problems in Most Cases - - - - No Opinion 11% 7% 16% 4% Other Response 5% 6% 4% 4% 

Table 14 

Is the timing requirement in your district important to the defense? 

All 

Attorneys 

(n=1,160) 

Federal 

Defenders 

(n=112) 

Private 

Attorneys 

(n=1,048) 

Timing is Very Important in Most Cases 62% 62% 62% 

Timing is Very Important in Some Cases 33% 28% 33% Timing is Not Very Important 3% 4% 3% Other Response 3% 6% 2% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 11 

Table 15 

How often in the past 5 years have you been unable to obtain cooperation 

from a witness because of the your district’s timing requirement? 

U.S. 

Attorney 

Offices 

(n=40) 

Always - 

Usually - Sometimes 15% Rarely 45% Never 40% 

Table 16 

Does your district require federal prosecutors to disclose before trial 

government witness statements that could be used to impeach? 

All 

Judges 

(n=217) 

District 

Judges 

(n=134) 

Magistrate 

Judges 

(n=83) 

Yes: Disclosure is Required 61% 60% 61% 

Table 17 

Does your district require defense counsel to disclose before trial 

anticipated defense witness statements that could be used to impeach? 

All 

Judges 

(n=220) 

District 

Judges 

(n=136) 

Magistrate 

Judges 

(n=84) 

Yes: Disclosure is Required 30% 26% 37% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 12 

Table 18 

 Number of cases in the past 5 years in which you believe your district’s local rule requirements of 

disclosure of exculpatory information resulted in threats or harm to a prosecution witness. 

All 

Judges 

(n=209) 

District 

Judges 

(n=131) 

Magistrate 

Judges 

(n=78) 

None 73% 76% 67% 

1 7% 8% 6% 2 – 4 11% 10% 13% 5 – 10 7% 5% 12% 11 – 20 1% 2% 1% More than 20 <1% - 1% 

Table 19 

Number of cases in the past 5 years in which you believe your district’s requirements of disclosure of 

Giglio information resulted in threats or harm to a prosecution witness. 

All 

Judges 

(n=211) 

District 

Judges 

(n=134) 

Magistrate 

Judges 

(n=77) 

None 73% 73% 74% 

1 5% 6% 3% 2 – 4 15% 16% 13% 5 – 10 5% 4% 8% 11 – 20 1% 1% 1% More than 20 <1% - 1% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 13 

Table 20 

Number of cases in the past 5 years in which the prosecution requested a protective order prohibiting or 

delaying required disclosure based on witness safety or other security concerns. 

 Local Rule No Local Rule

All 

Attorneys 

(n=1,960) 

Federal 

Defenders 

(n=209) 

Private 

Attorneys 

(n=1,751) 

All 

Attorneys 

(n=3,181) 

Federal 

Defenders 

(n=402) 

Private 

Attorneys 

(n=2,779) 

None 52% 42% 53% 56% 49% 57% 

1 15% 17% 15% 14% 14% 14% 2 – 4 24% 27% 23% 21% 27% 20% 5 – 10 6% 7% 6% 6% 7% 6% 11 – 20 2% 4% 2% 2% 1% 2% More than 20 2% 3% 1% 1% 3% 1% 

 Local Rule No Local Rule

U.S. Attorney 

Offices 

(n=40) 

U.S. Attorney 

Offices 

(n=44) 

None 38% 41% 

1 3% 11% 2 – 4 18% 16% 5 – 10 20% 11% 11 – 20 8% 11% More than 20 15% 9% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 14 

Table 21 

Number of cases in the past 5 years in which you believe the government failed to provide 

exculpatory or Giglio information in compliance with the local rule. 

 Local Rule No Local Rule

All 

Attorneys 

(n=1,946) 

Federal 

Defenders 

(n=203) 

Private 

Attorneys 

(n=1,743) 

All 

Attorneys 

(n=3,159) 

Federal 

Defenders 

(n=397) 

Private 

Attorneys 

(n=2,762) 

None 52% 26% 55% 40% 16% 43% 

1 15% 7% 16% 16% 11% 17% 2 – 4 22% 37% 20% 28% 35% 27% 5 – 10 7% 17% 6% 11% 26% 9% 11 – 20 1% 4% 1% 3% 7% 2% More than 20 2% 7% 1% 2% 6% 2% 

Table 22 

Number of cases in the past 5 years in which you believe the suspected violation was due to materiality concerns. 

 Local Rule No Local Rule

All 

Attorneys 

(n=924) 

Federal 

Defenders 

(n=150) 

Private 

Attorneys 

(n=774) 

All 

Attorneys 

(n=1,889) 

Federal 

Defenders 

(n=332) 

Private 

Attorneys 

(n=1,557) 

None 30% 26% 31% 22% 16% 24% 1 27% 15% 29% 24% 14% 26% 2 – 4 32% 42% 30% 38% 41% 37% 5 – 10 8% 10% 7% 12% 20% 10% 11 – 20 2% 2% 1% 3% 5% 3% More than 20 2% 5% 1% 1% 4% <1% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 15 

Table 23 

Number of cases in the past 5 years in which the defense alleged that the 

government failed to comply with disclosure obligations. 

 Local Rule No Local Rule

U.S. Attorney 

Offices 

(n=40) 

U.S. Attorney 

Offices 

(n=45) 

None 25% 33% 

1 5% 9% 2 – 4 30% 22% 5 – 10 10% 7% 11 – 20 5% 4% More than 20 25% 24% 

Table 24 

Number of cases in the past 5 years in which the court concluded that 

the government failed to comply with disclosure obligations. 

Judges Local Rule No Local Rule

All 

Judges 

(n=217) 

District 

Judges 

(n=136) 

Magistrate 

Judges 

(n=81) 

All 

Judges 

(n=400) 

District 

Judges 

(n=257) 

Magistrate 

Judges 

(n=143) 

None 61% 59% 65% 74% 67% 87% 

1 10% 12% 6% 10% 12% 5% 2 – 4 22% 23% 21% 14% 18% 6% 5 – 10 5% 4% 7% 3% 3% 2% 11 – 20 <1% 1% - - - - More than 20 <1% 1% - - - - 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Table 24 (cont’d) 

Appendix C – 16 

Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=1,946) 

Federal 

Defenders 

(n=202) 

Private 

Attorneys 

(n=1,744) 

All 

Attorneys 

(n=3,164) 

Federal 

Defenders 

(n=398) 

Private 

Attorneys 

(n=2,766) 

None 79% 64% 80% 78% 65% 80% 

1 11% 16% 11% 12% 14% 11% 2 – 4 8% 15% 7% 8% 13% 7% 5 – 10 1% 3% 1% 2% 5% 2% 11 – 20 <1% <1% <1% <1% 2% <1% More than 20 <1% <1% <1% <1% <1% <1% 

U.S. Attorneys Local Rule No Local Rule

U.S. Attorney 

Offices 

(n=40) 

U.S. Attorney 

Offices 

(n=44) 

None 65% 70% 

1 10% 18% 2 – 4 8% 7% 5 – 10 7% 5% 11 – 20 - - More than 20 - - 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 17 

Table 25 

What was the nature of the most frequent violation by the government? 

Judges Local Rule No Local Rule

All 

Judges 

(n=80) 

District 

Judges 

(n=52) 

Magistrate 

Judges 

(n=28) 

All 

Judges 

(n=103) 

District 

Judges 

(n=85) 

Magistrate 

Judges 

(n=18) 

Scope of Disclosure 26% 25% 29% 31% 32% 28% 

Failure to Disclose on Time 61% 65% 54% 41% 40% 44% Failure to Disclose at All 8% 8% 7% 19% 19% 22% Other 5% 2% 11% 9% 9% 6% Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=425) 

Federal 

Defenders 

(n=76) 

Private 

Attorneys 

(n=349) 

All 

Attorneys 

(n=696) 

Federal 

Defenders 

(n=138) 

Private 

Attorneys 

(n=558) 

Scope of Disclosure 29% 28% 29% 30% 25% 32% 

Failure to Disclose on Time 29% 36% 28% 21% 19% 21% Failure to Disclose at All 36% 30% 38% 44% 49% 42% Other 6% 7% 5% 5% 7% 5% 

U.S. Attorneys Local Rule No Local Rule

U.S. Attorney 

Offices 

(n=14) 

U.S. Attorney 

Offices 

(n=13) 

Scope of Disclosure 36% 15% 

Failure to Disclose on Time 43% 31% Failure to Disclose at All 14% 46% Other 7% 8% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 18 

Table 26 

What remedial steps were taken by the court? 

Judges Local Rule No Local Rule

All 

Judges 

(n=84) 

District 

Judges 

(n=56) 

Magistrate 

Judges 

(n=28) 

All 

Judges 

(n=104) 

District 

Judges 

(n=86) 

Magistrate 

Judges 

(n=18) 

No Action Taken 13% 9% 21% 4% 2% 11% 

Ordered Immediate Disclosure 76% 80% 68% 71% 71% 72% Ordered a Continuance 43% 43% 43% 39% 42% 28% Excluded Evidence 12% 13% 11% 18% 21% 6% Gave Jury Instruction 4% 5% - 7% 8% - Admonished Prosecutor 21% 20% 25% 17% 17% 17% Held Prosecutor in Contempt - - - <1% 1% - Reported Prosecutor to DOJ Office of 

Professional Responsibility 2% 4% - 2% 1% 6% 

Reported Prosecutor to the State Bar 2% 4% - - - - Other Steps Taken 13% 13% 14% 13% 16% - Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=415) 

Federal 

Defenders 

(n=73) 

Private 

Attorneys 

(n=342) 

All 

Attorneys 

(n=699) 

Federal 

Defenders 

(n=138) 

Private 

Attorneys 

(n=561) 

No Action Taken 23% 32% 21% 34% 36% 34% 

Ordered Immediate Disclosure 65% 55% 67% 58% 53% 60% Ordered a Continuance 26% 33% 24% 24% 33% 22% Excluded Evidence 9% 12% 9% 8% 11% 7% Gave Jury Instruction 2% 1% 2% 5% 7% 5% Admonished Prosecutor 17% 21% 16% 13% 13% 13% Held Prosecutor in Contempt <1% - <1% <1% - <1% Reported Prosecutor to DOJ Office of 

Professional Responsibility <1% - <1% <1% - <1% 

Reported Prosecutor to the State Bar <1% - <1% <1% - <1% Other Steps Taken 12% 14% 11% 11% 12% 10% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Table 26 (cont’d) 

Appendix C – 19 

U.S. Attorneys Local Rule No Local Rule

U.S. Attorney 

Offices 

(n=14) 

U.S. Attorney 

Offices 

(n=13) 

No Action Taken 29% 23% 

Ordered Immediate Disclosure 64% 54% Ordered a Continuance 57% 23% Excluded Evidence 50% 15% Gave Jury Instruction 14% 8% Admonished Prosecutor 57% 46% Held Prosecutor in Contempt - - Reported Prosecutor to DOJ Office of 

Professional Responsibility 7% 8% 

Reported Prosecutor to the State Bar 7% - Other 7% 62% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 20 

Table 27 

Overall satisfaction with prosecutor compliance with discovery obligations. 

Judges Local Rule No Local Rule

All 

Judges 

(n=223) 

District 

Judges 

(n=138) 

Magistrate 

Judges 

(n=85) 

All 

Judges 

(n=402) 

District 

Judges 

(n=257) 

Magistrate 

Judges 

(n=145) 

Very Satisfied 55% 59% 48% 55% 56% 54% 

Satisfied 35% 33% 39% 35% 35% 35% Neither Satisfied nor Dissatisfied 10% 8% 13% 8% 7% 10% Dissatisfied <1% <1% - 2% 2% 2% Very Dissatisfied - - - - - - Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=1,955) 

Federal 

Defenders 

(n=205) 

Private 

Attorneys 

(n=1,750) 

All 

Attorneys 

(n=3,183) 

Federal 

Defenders 

(n=402) 

Private 

Attorneys 

(n=2,781) 

Very Satisfied 18% 5% 20% 10% 3% 11% 

Satisfied 42% 31% 44% 30% 19% 32% Neither Satisfied nor Dissatisfied 23% 31% 22% 26% 27% 26% Dissatisfied 14% 27% 12% 26% 38% 24% Very Dissatisfied 2% 6% 2% 7% 13% 7% 

U.S. Attorneys Local Rule No Local Rule

U.S. Attorney 

Offices 

(n=40) 

U.S. Attorney 

Offices 

(n=45) 

Very Satisfied 90% 89% 

Satisfied 10% 11% Neither Satisfied nor Dissatisfied - Dissatisfied - Very Dissatisfied - 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 21 

Table 28 

Do the defense attorneys in your district understand their pretrial discovery and disclosure obligations? 

Judges Local Rule No Local Rule

All 

Judges 

(n=224) 

District 

Judges 

(n=138) 

Magistrate 

Judges 

(n=86) 

All 

Judges 

(n=399) 

District 

Judges 

(n=257) 

Magistrate 

Judges 

(n=142) 

Always 11% 12% 9% 15% 12% 22% 

Usually 67% 70% 62% 64% 67% 57% Sometimes 18% 14% 24% 16% 16% 18% Rarely 4% 4% 5% 4% 5% 3% Never - - - <1% <1% <1% Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=1,946) 

Federal 

Defenders 

(n=205) 

Private 

Attorneys 

(n=1,741) 

All 

Attorneys 

(n=3,180) 

Federal 

Defenders 

(n=403) 

Private 

Attorneys 

(n=2,777) 

Always 11% 8% 12% 9% 10% 9% 

Usually 66% 67% 66% 63% 68% 62% Sometimes 19% 22% 19% 24% 20% 24% Rarely 4% 3% 4% 4% 2% 5% Never - - - <1% - <1% 

U.S. Attorneys Local Rule No Local Rule

U.S. Attorney 

Offices 

(n=40) 

U.S. Attorney 

Offices 

(n=45) 

Always 3% 2% 

Usually 15% 18% Sometimes 30% 27% Rarely 38% 53% Never 15% - 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 22 

Table 29 

Number of cases in the past 5 years in which the court concluded that defense counsel failed to comply with disclosure obligations. 

Judges Local Rule No Local Rule

All 

Judges 

(n=214) 

District 

Judges 

(n=136) 

Magistrate 

Judges 

(n=78) 

All 

Judges 

(n=399) 

District 

Judges 

(n=255) 

Magistrate 

Judges 

(n=144) 

None 64% 57% 77% 68% 57% 88% 

1 7% 8% 4% 8% 10% 4% 2 – 4 20% 25% 12% 19% 26% 6% 5 – 10 7% 7% 6% 5% 6% 2% 11 – 20 <1% 1% - - - - More than 20 <1% <1% 1% <1% 1% - 

Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=1,948) 

Federal 

Defenders 

(n=206) 

Private 

Attorneys 

(n=1,742) 

All 

Attorneys 

(n=3,176) 

Federal 

Defenders 

(n=401) 

Private 

Attorneys 

(n=2,775) 

None 95% 94% 95% 97% 95% 97% 

1 3% 5% 3% 3% 4% 2% 2 – 4 2% 2% 2% <1% <1% <1% 5 – 10 <1% - <1% <1% - <1% 11 – 20 <1% - <1% - - - More than 20 <1% - <1% - - - 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Table 29 (cont’d) 

Appendix C – 23 

U.S. Attorneys Local Rule No Local Rule

U.S. Attorney 

Offices 

(n=40) 

U.S. Attorney 

Offices 

(n=44) 

None 43% 50% 

1 8% 9% 2 – 4 28% 18% 5 – 10 13% 14% 11 – 20 8% 7% More than 20 3% 2% 

Table 30 

What was the nature of the most frequent violation by the defense? 

Judges Local Rule No Local Rule

All 

Judges 

(n=75) 

District 

Judges 

(n=57) 

Magistrate 

Judges 

(n=18) 

All 

Judges 

(n=126) 

District 

Judges 

(n=109) 

Magistrate 

Judges 

(n=17) 

Scope of Disclosure 11% 11% 11% 21% 21% 24% 

Failure to Disclose on Time 47% 47% 44% 44% 45% 35% Failure to Disclose at All 41% 40% 44% 33% 31% 41% Other 1% 2% - 2% 3% - 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Table 30 (cont’d) 

Appendix C – 24 

Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=98) 

Federal 

Defenders 

(n=13) 

Private 

Attorneys 

(n=85) 

All 

Attorneys 

(n=110) 

Federal 

Defenders 

(n=19) 

Private 

Attorneys 

(n=91) 

Scope of Disclosure 26% 31% 25% 25% 26% 25% 

Failure to Disclose on Time 43% 62% 40% 41% 37% 42% Failure to Disclose at All 31% 8% 34% 32% 37% 31% Other 1% - 1% 2% - 2% 

U.S. Attorneys Local Rule No Local Rule

U.S. Attorney 

Offices 

(n=23) 

U.S. Attorney 

Offices 

(n=22) 

Scope of Disclosure 9% - 

Failure to Disclose on Time 39% 45% Failure to Disclose at All 48% 55% Other 4% - 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 25 

Table 31 

What remedial steps were taken by the court? 

Judges Local Rule No Local Rule

All 

Judges 

(n=76) 

District 

Judges 

(n=58) 

Magistrate 

Judges 

(n=18) 

All 

Judges 

(n=127) 

District 

Judges 

(n=110) 

Magistrate 

Judges 

(n=17) 

No Action Taken 20% 17% 28% 14% 14% 18% 

Ordered Immediate Disclosure 78% 83% 61% 76% 80% 53% Ordered a Continuance 21% 21% 22% 18% 19% 12% Excluded Evidence 9% 10% 6% 12% 14% - Gave Jury Instruction 1% 2% - 2% 3% - Admonished Defense Counsel 14% 14% 17% 9% 9% 12% Held Defense Counsel in Contempt 1% 2% - - - - Reported Defense Counsel to the State Bar - - - - - - Other 3% - 11% 4% 4% 6% Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=100) 

Federal 

Defenders 

(n=14) 

Private 

Attorneys 

(n=86) 

All 

Attorneys 

(n=110) 

Federal 

Defenders 

(n=19) 

Private 

Attorneys 

(n=91) 

No Action Taken 20% 21% 20% 15% 16% 14% 

Ordered Immediate Disclosure 55% 57% 55% 57% 42% 60% Ordered a Continuance 15% 14% 15% 8% 11% 8% Excluded Evidence 28% 29% 28% 23% 26% 22% Gave Jury Instruction 3% - 3% - - - Admonished Defense Counsel 10% 14% 9% 8% 5% 9% Held Defense Counsel in Contempt - - - - - - Reported Defense Counsel to the State Bar - - - <1% - 1% Other 2% - 2% 5% 11% 3% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Table 31 (cont’d) 

Appendix C – 26 

U.S. Attorneys Local Rule No Local Rule

U.S. Attorney 

Offices 

(n=23) 

U.S. Attorney 

Offices 

(n=22) 

No Action Taken 65% 45% 

Ordered Immediate Disclosure 70% 59% Ordered a Continuance 4% 14% Excluded Evidence 35% 41% Gave Jury Instruction - - Admonished Defense Counsel 17% 27% Held Defense Counsel in Contempt - - Reported Defense Counsel to the State Bar - - Other - - 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 27 

Table 32 

Overall satisfaction with defense counsel compliance with discovery obligations.

Judges Local Rule No Local Rule

All 

Judges 

(n=222) 

District 

Judges 

(n=138) 

Magistrate 

Judges 

(n=84) 

All 

Judges 

(n=401) 

District 

Judges 

(n=257) 

Magistrate 

Judges 

(n=144) 

Very Satisfied 33% 36% 30% 31% 28% 37% 

Satisfied 46% 48% 42% 49% 54% 39% Neither Satisfied nor Dissatisfied 19% 15% 26% 18% 14% 24% Dissatisfied 2% 1% 2% 2% 3% <1% Very Dissatisfied - - - - - - Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=1,934) 

Federal 

Defenders 

(n=206) 

Private 

Attorneys 

(n=1,728) 

All 

Attorneys 

(n=3,162) 

Federal 

Defenders 

(n=402) 

Private 

Attorneys 

(n=2,760) 

Very Satisfied 24% 25% 24% 23% 27% 22% 

Satisfied 50% 53% 50% 49% 52% 48% Neither Satisfied nor Dissatisfied 25% 20% 25% 28% 21% 29% Dissatisfied <1% <1% <1% <1% - <1% Very Dissatisfied <1% <1% - <1% - <1% 

U.S. Attorneys Local Rule No Local Rule

U.S. Attorney 

Offices 

(n=40) 

U.S. Attorney 

Offices 

(n=45) 

Very Satisfied - - 

Satisfied 10% 9% Neither Satisfied nor Dissatisfied 18% 20% Dissatisfied 43% 47% Very Dissatisfied 30% 24% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 28 

Table 33 

Do you favor amending Rule 16? 

All 

Judges 

(n=617) 

District 

Judges 

(n=389) 

Magistrate 

Judges 

(n=228) 

All 

Attorneys 

(n=5,133) 

Federal 

Defenders 

(n=611) 

Private 

Attorneys 

(n=4,522) 

Favor Amending Rule 16 51% 50% 54% 93% 98% 93% 

Table 34 

Do you favor amending Rule 16? 

Judges Local Rule No Local Rule

All 

Judges 

(n=218) 

District 

Judges 

(n=135) 

Magistrate 

Judges 

(n=83) 

All 

Judges 

(n=399) 

District 

Judges 

(n=254) 

Magistrate 

Judges 

(n=145) 

Favor Amending Rule 16 60% 60% 60% 46% 44% 50% 

Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=1,955) 

Federal 

Defenders 

(n=209) 

Private 

Attorneys 

(n=1,746) 

All 

Attorneys 

(n=3,178) 

Federal 

Defenders 

(n=402) 

Private 

Attorneys 

(n=2,776) 

Favor Amending Rule 16 92% 97% 92% 94% 99% 93% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 29 

Table 35 

Do you favor amending Rule 16? 

Judges Local Rule No Local Rule

Status 

 Chief 

District 

Judge 

(n=19) 

Active 

District 

Judge 

(n=84) 

Senior 

District 

Judge 

(n=32) 

Magistrate 

Judge 

(n=83) 

Chief 

District 

Judge 

(n=21) 

Active 

District 

Judge 

(n=149) 

Senior 

District 

Judge 

(n=77) 

Magistrate 

Judge 

(n=145) 

Favor Amending Rule 16 58% 60% 63% 60% 75% 45% 32% 50% 

Table 36 

Do you favor amending Rule 16? 

District Judges Local Rule No Local Rule

Years on the Bench 

 Less Than 

5 Years 

(n=14) 

5 – 10 

Years 

(n=38) 

11 – 15 

Years 

(n=18) 

More Than 

15 Years 

(n=65) 

Less Than 

5 Years 

(n=27) 

5 – 10 

Years 

(n=60) 

11 – 15 

Years 

(n=47) 

More Than 

15 Years 

(n=120) 

Favor Amending Rule 16 64% 53% 67% 62% 52% 47% 62% 35% 

Magistrate Judges Local Rule No Local Rule

Years on the Bench 

 Less Than 

5 Years 

(n=28) 

5 – 10 

Years 

(n=19) 

11 – 15 

Years 

(n=13) 

More Than 

15 Years 

(n=23) 

Less Than 

5 Years 

(n=34) 

5 – 10 

Years 

(n=33) 

11 – 15 

Years 

(n=26) 

More Than 

15 Years 

(n=51) 

Favor Amending Rule 16 61% 63% 69% 52% 56% 61% 54% 35% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 30 

Table 37 

Why an amendment to Rule 16 is needed. 

Judges Local Rule No Local Rule

All 

Judges 

(n=131) 

District 

Judges 

(n=81) 

Magistrate 

Judges 

(n=50) 

All 

Judges 

(n=185) 

District 

Judges 

(n=113) 

Magistrate 

Judges 

(n=72) 

It will reduce the possibility that innocent persons will 

be convicted 42% 46% 36% 34% 35% 32% 

Many disclosure violations pass undiscovered or 

without remedy 38% 37% 42% 43% 40% 47% 

It will eliminate the confusion surrounding the use of 

materiality as a disclosure obligation 74% 75% 72% 77% 78% 76% 

Current remedies for prosecutorial misconduct are 

rarely employed 25% 22% 30% 21% 18% 25% 

It will reduce variations that currently exist in the 

circuits 44% 46% 40% 45% 46% 44% 

Other Reasons 9% 6% 14% 8% 4% 13% Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=1,801) 

Federal 

Defenders 

(n=202) 

Private 

Attorneys 

(n=1,599) 

All 

Attorneys 

(n=2,986) 

Federal 

Defenders 

(n=396) 

Private 

Attorneys 

(n=2,590) 

It will reduce the possibility that innocent persons will 

be convicted 65% 73% 64% 68% 76% 67% 

Many disclosure violations pass undiscovered or 

without remedy 63% 77% 62% 72% 84% 70% 

It will eliminate the confusion surrounding the use of 

materiality as a disclosure obligation 76% 86% 75% 77% 83% 76% 

Current remedies for prosecutorial misconduct are 

rarely employed 48% 69% 46% 56% 69% 54% 

It will reduce variations that currently exist in the 

circuits 45% 37% 46% 45% 44% 45% 

Other Reasons 9% 10% 8% 11% 12% 11% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 31 

Table 38 

Why an amendment to Rule 16 is not needed. 

Judges Local Rule No Local Rule

All 

Judges 

(n=87) 

District 

Judges 

(n=54) 

Magistrate 

Judges 

(n=33) 

All 

Judges 

(n=214) 

District 

Judges 

(n=141) 

Magistrate 

Judges 

(n=73) 

There is no demonstrated need for change 75% 76% 73% 75% 69% 88% 

The current remedies for prosecutorial misconduct are 

adequate 55% 52% 61% 50% 55% 38% 

Recent reforms by the Department of Justice will 

significantly decrease disclosure violations 14% 9% 21% 15% 17% 11% 

It will not address the real need for increasing the 

frequency and severity of sanctions for violations 5% 4% 6% 4% 3% 5% 

It will not reduce the possibility that innocent persons 

will be convicted 8% 11% 3% 7% 9% 4% 

Other Reasons 7% 9% 3% 7% 11% 1% Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=154) 

Federal 

Defenders 

(n=7) 

Private 

Attorneys 

(n=147) 

All 

Attorneys 

(n=192) 

Federal 

Defenders 

(n=6) 

Private 

Attorneys 

(n=186) 

There is no demonstrated need for change 55% 57% 55% 52% 17% 53% 

The current remedies for prosecutorial misconduct are 

adequate 31% 29% 31% 39% 50% 38% 

Recent reforms by the Department of Justice will 

significantly decrease disclosure violations 11% 14% 11% 6% - 6% 

It will not address the real need for increasing the 

frequency and severity of sanctions for violations 12% 29% 11% 15% 17% 15% 

It will not reduce the possibility that innocent persons 

will be convicted 6% - 6% 5% 17% 5% 

Other Reasons 6% - 7% 8% 17% 8% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 32 

Table 39 

Would eliminating the Brady materiality requirement result in changes 

in the frequency of defense motions for Brady violations? 

 Local Rule No Local Rule

All 

Attorneys 

(n=1,931) 

Federal 

Defenders 

(n=204) 

Private 

Attorneys 

(n=1,727) 

All 

Attorneys 

(n=3,122) 

Federal 

Defenders 

(n=393) 

Private 

Attorneys 

(n=2,729) 

Motions would increase 18% 9% 19% 20% 15% 20% 

Motions would stay the same 28% 30% 28% 28% 28% 28% Motions would decrease 48% 51% 47% 46% 46% 46% Other 6% 9% 6% 7% 11% 6% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 33 

Table 40 

Should victim or witness information be disclosed? 

All 

Judges 

(n=619) 

District 

Judges 

(n=390) 

Magistrate 

Judges 

(n=229) 

All 

Attorneys 

(n=5,134) 

Federal 

Defenders 

(n=609) 

Private 

Attorneys 

(n=4,525) 

Disclose this information 33% 33% 33% 88% 90% 88% 

Don’t Know 24% 23% 26% 6% 6% 6% 

Table 41 

Should victim or witness information be disclosed? 

Judges Local Rule No Local Rule

All 

Judges 

(n=220) 

District 

Judges 

(n=135) 

Magistrate 

Judges 

(n=85) 

All 

Judges 

(n=399) 

District 

Judges 

(n=255) 

Magistrate 

Judges 

(n=144) 

Disclose this information 28% 27% 28% 36% 35% 36% 

Don’t Know 27% 25% 29% 12% 22% 24% Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=1,960) 

Federal 

Defenders 

(n=208) 

Private 

Attorneys 

(n=1,752) 

All 

Attorneys 

(n=3,174) 

Federal 

Defenders 

(n=401) 

Private 

Attorneys 

(n=2,773) 

Disclose this information 89% 92% 89% 87% 89% 87% 

Don’t Know 5% 5% 5% 6% 6% 6% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 34 

Table 42 

Should allegations of misconduct by law enforcement witnesses be disclosed? 

All 

Judges 

(n=621) 

District 

Judges 

(n=391) 

Magistrate 

Judges 

(n=230) 

All 

Attorneys 

(n=5,124) 

Federal 

Defenders 

(n=609) 

Private 

Attorneys 

(n=4,515) 

Disclose this information 36% 36% 36% 88% 93% 88% 

Don’t Know 13% 12% 15% 3% 2% 3% 

Table 43 

Should allegations of misconduct by law enforcement witnesses be disclosed? 

Judges Local Rule No Local Rule

All 

Judges 

(n=220) 

District 

Judges 

(n=135) 

Magistrate 

Judges 

(n=85) 

All 

Judges 

(n=401) 

District 

Judges 

(n=256) 

Magistrate 

Judges 

(n=145) 

Disclose this information 35% 37% 33% 36% 35% 37% 

Don’t Know 14% 11% 19% 12% 12% 12% Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=1,953) 

Federal 

Defenders 

(n=208) 

Private 

Attorneys 

(n=1,745) 

All 

Attorneys 

(n=3,171) 

Federal 

Defenders 

(n=401) 

Private 

Attorneys 

(n=2,770) 

Disclose this information 88% 93% 88% 88% 94% 87% 

Don’t Know 3% 3% 3% 3% 2% 3% 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix C – 35 

Table 44 

Should all impeachment information concerning defense witnesses be disclosed? 

All 

Judges 

(n=617) 

District 

Judges 

(n=387) 

Magistrate 

Judges 

(n=230) 

All 

Attorneys 

(n=5,112) 

Federal 

Defenders 

(n=606) 

Private 

Attorneys 

(n=4,506) 

Disclose this information 52% 54% 48% 42% 32% 44% 

Don’t Know 19% 16% 24% 11% 13% 10% 

Table 45 

Should all impeachment information concerning defense witnesses be disclosed? 

Judges Local Rule No Local Rule

All 

Judges 

(n=219) 

District 

Judges 

(n=134) 

Magistrate 

Judges 

(n=85) 

All 

Judges 

(n=398) 

District 

Judges 

(n=253) 

Magistrate 

Judges 

(n=145) 

Disclose this information 50% 51% 47% 53% 55% 49% 

Don’t Know 22% 16% 32% 17% 15% 20% Defense Attorneys Local Rule No Local Rule

All 

Attorneys 

(n=1,943) 

Federal 

Defenders 

(n=206) 

Private 

Attorneys 

(n=1,737) 

All 

Attorneys 

(n=3,169) 

Federal 

Defenders 

(n=400) 

Private 

Attorneys 

(n=2,769) 

Disclose this information 44% 31% 45% 42% 33% 43% 

Don’t Know 11% 13% 11% 11% 14% 10% 

A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix D – 1 

Appendix D: Methods 

Sample Identification and Selection 

Judges 

We selected to receive the survey all district and magistrate judges on the Administrative Office’s email list available to court users on the Administrative Office’s 

JNET. The list of district judges includes chief district judges, active district judges, 

and senior district judges. We selected all district and magistrate judges in order to 

gather as much information as possible on judicial experience with Rule 16 and 

with the various local rules, standing orders, and policies governing disclosure. 

Attorneys 

We selected a sample of private defense attorneys and Federal Defenders (including Community Defenders) through this sequence of steps. We first selected from 

data available to the Center all criminal cases with retained defense counsel (i.e., 

no pro se cases) terminated in calendar year 2009 in all districts. From this set of 

cases, we selected the lead counsel or, in several districts that do not identify a lead 

counsel, the “Attorney to Be Noticed.” If there were multiple defendants, we selected all lead counsel for all defendants. We next separated the private attorneys 

from the Federal Defenders so that each set of attorneys could be processed individually. From the set of private attorneys, we eliminated duplicate entries (i.e., 

attorneys associated with more than one case) and eliminated attorneys who did 

not have an email address or an individual email address. Attorneys in the latter 

category typically had an email address that went to a firm’s general mailbox and 

did not identify the attorney specifically. In some cases, however, where it was 

clear that the firm was an attorney in solo practice, we kept the attorney in the 

sample. We processed the Federal Defenders in a different fashion. Except for duplicate entries, we did not eliminate any Federal Defenders from the sample. If a 

Federal Defender did not have an email address in the database, or the email address went to a group mailbox, we searched databases on the Administrative Office's JNET to find their individual email addresses. In a very few cases, where 

these databases did not produce a result, we fashioned an email address based on 

the rules used to construct Federal Defender email addresses generally. The end 

result was a sample of 14,726 private attorneys with individual email addresses 

and 1,290 Federal Defenders with individual email addresses. 

 We considered sampling from among these two groups of attorneys, but decided against further sampling for several reasons. First, we could not be sure of 

the response from the private attorneys. Past experience at the Center has shown 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix D – 2 

that response rates among private attorneys can be as low as 10 percent. Smaller 

districts, with fewer attorneys, might not be represented in sufficient numbers and 

we might lose the experiences of attorneys practicing in smaller districts. Second, 

with respect to Federal Defenders, our search of the JNET databases showed that 

there is some level of turnover in the Federal Defender offices. Since we could not 

be sure how many Federal Defenders in our sample were still Federal Defenders, 

we decided that the prudent course was to survey all. Again, we were not sure what 

response rate to expect and, by including all, we helped ensure that smaller districts would be represented among the survey responses. 

United States Attorneys 

At the request of the Department of Justice, we sent the online survey link to a 

contact person in the Department who forwarded the link to each U.S. Attorney’s 

office. According to this agreement, an official in that office would complete the 

first two sections of the survey, to represent the collective experiences of the attorneys in the office. Consequently, we would have one survey from each U.S. Attorney’s office that responded. The Department of Justice completed the third section 

of the survey, dealing with possible amendments to Rule 16, as a means of expressing the policy views of the Department. 

Survey Administration and Data Preparation 

Online Survey 

Each prospective respondent received an email that explained the purpose of the 

survey and a link to the online survey designed for their group. The surveys were 

designed to be completed online and survey responses were accumulated in a database for later analysis. The survey software also kept track of who had responded 

to the survey, so that a reminder could be sent to those who had not responded. 

We sent the initial email to prospective respondents during the week of June 1, 

2010, and a reminder several weeks later. 

Data Preparation 

Our preparation of the three data sets for analysis began in mid-July. In addition 

to the usual data processing that must be performed on any set of raw data, we 

had to resolve several issues about which surveys to use in the final analysis. First, 

each of the three data sets contained duplicate entries that resulted from one or 

more unsuccessful attempts by a respondent to complete the survey online before 

a final, successful completion of the survey. We identified these respondents and 

removed the earlier, incomplete attempts from the final data set. Another type of 

duplicate entry was unique to the attorney data set and occurred when survey re-
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix D – 3 

cipients forwarded the email to other attorneys who also completed the survey. 

Since these latter attorneys were not in our sample, we identified and eliminated 

their responses from the final dataset. 

 Second, we received emails from two chief district judges that a representative 

judge would respond for all district and magistrate judges in their respective districts. We received an email from a third chief district judge that a representative 

magistrate judge would respond for all magistrate judges in that district. Many of 

the questions in the judge survey deal with the respondent’s experiences on the 

bench and, because we did not know if district representatives would report their 

experiences, an amalgam of judges’ experiences, or something in between, we 

eliminated these three surveys from the results presented here. 

 After resolving these data issues, we had responses from 644 district and magistrate judges, 5,159 attorneys, and 85 U.S. Attorney offices. Appendix C, Table 1, 

contains a breakdown of the response rates for these three groups. 

Appendix E: Survey Instruments 

E1: A National Survey of District and Magistrate Judges 

E2: A National Survey of Criminal Defense Attorneys 

E3: A National Survey of Federal Prosecutors 

A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E1 – 1 

RULE 16 PRETRIAL DISCLOSURE PROCEDURES AND PRACTICES 

A NATIONAL SURVEY OF DISTRICT AND MAGISTRATE JUDGES 

For the Advisory Committee on Criminal Rules of the 

Judicial Conference of the United States 

Administered by the Federal Judicial Center 

Demographic Information 

The information in this section will help us to analyze survey responses in terms of which 

respondents are from large or small districts; those who have been on the bench for a long 

or relatively short time; as well as by judge type: active, senior, or magistrate judge. No 

individual judge will be identified in any of the analyses or reports we produce. 

Your District: ______________________ 

1) What is your current status? 

a) Chief district judge 

b) Active district judge 

c) Magistrate judge 

d) Senior judge 

2) How long have you been on the federal bench? 

a) Less than 5 years 

b) 5-10 years 

c) 11-15 years 

d) More than 15 years 

3) Does a local rule, standing order or other policy in your district require disclosure 

by the prosecution to the defense that extends beyond the requirements of Brady 

v. Maryland, Giglio v. United States, Rule 16 (Discovery and Inspection), or Rule 

26.2 (Producing a Witness’s Statement)? For example, your district may have 

specific time requirements for disclosure or mandate automatic disclosure. 

a) If yes, [Go to Part I] 

b) If no, [Go to PART II] 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E1 – 2 

I. DISTRICT SPECIFIC LOCAL COURT RULES, STANDING ORDERS 

OR OTHER POLICIES REGARDING PRETRIAL DISCLOSURE 

This section seeks your views on pretrial disclosure procedures and practices by 

federal prosecutors and defense counsel in your district, including questions 

addressing your district’s local rule or standing order regarding disclosure in 

criminal cases. 

4) In your opinion, do federal prosecutors who appear before you understand their 

pretrial discovery and disclosure obligations pursuant to your district’s local rule 

or standing order? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

5) In your opinion, do federal prosecutors who appear before you follow a 

consistent policy or approach with respect to their pretrial discovery and 

disclosure obligations pursuant to your district’s local rule or standing order? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

6) In your opinion, do federal prosecutors who appear before you understand their 

federal constitutional disclosure obligations, i.e., Brady v. Maryland, Giglio v. 

United States, and their progeny? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E1 – 3 

7) In your opinion, in practice, are the differences between your local rule or 

standing order and the requirements of the United States Constitution and Rule 

16 significant or not significant? 

a) Significant 

b) Not Significant 

Please explain: 

8) Does your district require federal prosecutors to disclose to the defense 

exculpatory or Giglio information within a fixed time after indictment or 

arraignment? 

a) Yes [Go to Question 9] 

b) No [Go to Question 10]

9) Do you believe that this timing requirement has caused problems for the 

prosecution? Please choose the response that best represents your views. 

a) The timing of disclosure has caused minor problems in some cases. 

b) The timing of disclosure has caused minor problems in most cases. 

c) The timing of disclosure has caused serious problems in some cases. 

d) The timing of disclosure has caused serious problems in most cases. 

e) The timing has caused no problems. 

f) No opinion. 

g) Other: Please explain. 

10) Does your district require federal prosecutors to disclose to the defense before 

trial government witness statements that could be used to impeach? 

a) Yes 

b) No 

11) Does your district require the defense to disclose to prosecutors before trial 

statements by anticipated defense witnesses that could be used to impeach? 

a) Yes 

b) No 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E1 – 4 

12) Please estimate the number of cases in the past five years in which you believe 

that your district’s requirements regarding the disclosure of exculpatory

information by the government resulted in threats or harm to a prosecution 

witness. 

a) 0 (None) 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

13) Please estimate the number of cases in the past five years in which you believe 

that your district’s requirements regarding pretrial disclosure of Giglio

information by the government resulted in threats or harm to a prosecution 

witness. 

a) 0 (None) 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

14) If your district currently has a local rule or standing order that eliminates the 

Brady materiality requirement for disclosure of exculpatory information by 

prosecutors, did the rule change affect the frequency of defense motions filed to 

challenge the scope of disclosure? Please select one answer: 

a) Motions challenging the scope of disclosure increased. 

b) Motions challenging the scope of disclosure stayed the same. 

c) Motions challenging the scope of disclosure decreased. 

d) I was not on the bench before the rule was adopted. 

e) In my district no such rule has been adopted. 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E1 – 5 

15) Please estimate the number of cases in the past five years in which you concluded 

that the prosecution failed to comply with its disclosure obligations pursuant to 

your district’s local rule or standing order. 

a) 0 (None) [Go to Question 18]

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

16) What was the nature of the most frequent violation? 

a) Matter concerned the scope of disclosure. 

b) Matter concerned the failure to disclose on time. 

c) Matter concerned the failure to disclose at all. 

d) Other: ______________ 

17) Please indicate the remedial steps, if any, that you took upon concluding that the 

prosecution had violated its disclosure obligations under your district’s local rule 

or standing order. Check all that apply. 

a) No action taken 

b) Ordered immediate disclosure 

c) Ordered a continuance 

d) Excluded evidence 

e) Gave jury instruction 

f) Admonished federal prosecutor in open court and/or in a written opinion 

g) Held federal prosecutor in contempt 

h) Reported federal prosecutor to the Department of Justice Office of 

Professional Responsibility 

i) Reported federal prosecutor to the state’s Bar Counsel or other disciplinary 

body 

j) Other: Please explain 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E1 – 6 

18) Overall, how satisfied are you with federal prosecutor compliance with their 

discovery obligations in your district? 

a) Very satisfied 

b) Satisfied 

c) Neither Satisfied nor Dissatisfied 

d) Dissatisfied 

e) Very Dissatisfied 

19) In your opinion, do defense counsel who appear before you understand their 

discovery and disclosure obligations, including their obligation to provide 

reciprocal pretrial discovery under Rule 16(b) and reverse-Jencks Act material 

pursuant to Rule 26.2? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

20) Please estimate the number of cases in the past five years in which you concluded 

that defense counsel failed to disclose reverse-Jencks Act material or other 

reciprocal discovery to the prosecution. 

a) 0 (None) [Go to Question 23] 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

21) What was the nature of the most frequent violation? 

a) Matter concerned the scope of disclosure. 

b) Matter concerned the failure to disclose in a timely manner. 

c) Matter concerned the failure to disclose at all. 

d) Other: ______________ 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E1 – 7 

22) Please indicate the remedial steps, if any that you took upon concluding that 

defense counsel had violated their disclosure obligations under your district’s 

local rule or standing order. Check all that apply. 

a) No action taken 

b) Ordered immediate disclosure 

c) Ordered a continuance 

d) Excluded evidence 

e) Gave jury instruction 

f) Admonished defense counsel in open court and/or in a written opinion 

g) Held defense counsel in contempt 

h) Reported defense counsel to the state’s Bar Counsel or other disciplinary 

body 

i) Other: Please explain 

23) Overall, how satisfied are you with defense counsel compliance with their 

disclosure obligations under the Federal Rules?

a) Very satisfied 

b) Satisfied 

c) Neither Satisfied nor Dissatisfied 

d) Dissatisfied 

e) Very Dissatisfied 

[GO TO PART III] 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E1 – 8 

II. DISCLOSURE PROCEDURES AND PRACTICES PURSUANT TO THE 

UNITED STATES CONSTITUTION and RULES 16 AND 26.2. 

This section seeks your views on specific pretrial disclosure procedures and 

practices by federal prosecutors and defense counsel in your district pursuant to 

the Constitution and Rules 16 and 26.2. 

24) In your opinion, do federal prosecutors who appear before you understand their 

federal constitutional disclosure obligations (i.e., Brady v. Maryland, Giglio v. 

United States, and their progeny)? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

25) In your opinion, do federal prosecutors who appear before you follow a 

consistent policy or approach with respect to the disclosure of exculpatory and 

Giglio information? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

26) Please estimate the number of cases in the past five years in which you concluded 

that the prosecutor failed to comply with the Constitution’s requirements 

regarding the disclosure of exculpatory or Giglio information. 

a) 0 (None) [Go to Question 29 ]

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E1 – 9 

27) What was the nature of the most frequent violation? 

 a) Matter concerned the scope of disclosure. 

 b) Mater concerned the failure to disclose in a timely manner. 

 c) Matter concerned the failure to disclose at all. 

 d) Other: ______________ 

28) Please indicate the remedial steps, if any that you took upon concluding that the 

prosecution had failed to comply with the Constitution’s requirements regarding 

the disclosure of exculpatory or Giglio information. Check all that apply. 

a) No action taken 

b) Ordered immediate disclosure 

c) Ordered a continuance 

d) Excluded evidence 

e) Gave jury instruction 

f) Admonished federal prosecutor in open court and/or in a written opinion 

g) Held federal prosecutor in contempt 

h) Reported federal prosecutor to the Department of Justice Office of 

Professional Responsibility 

 i) Reported federal prosecutor to the state’s Bar Counsel or other disciplinary 

body 

j) Other: Please explain 

29) Overall, how satisfied are you with federal prosecutor compliance with their 

discovery obligations in your district?

a) Very satisfied 

b) Satisfied 

c) Neither Satisfied nor Dissatisfied 

d) Dissatisfied 

e) Very Dissatisfied 

30) In your opinion, do defense counsel who appear before you understand their 

discovery and disclosure obligations, including their obligation to provide 

reciprocal pretrial discovery under Rule 16(b) and reverse-Jencks Act material 

pursuant to Rule 26.2? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E1 – 10 

31) Please estimate the number of cases in the past five years in which you concluded 

that defense counsel failed to disclose reverse-Jencks Act material or other 

reciprocal discovery to the prosecution? 

a) 0 (None) [Go to Question 34] 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

31) What was the nature of the most frequent violation? 

a) Matter concerned the scope of disclosure. 

b) Matter concerned the failure to disclose in a timely manner. 

c) Matter concerned the failure to disclose at all. 

d) Other: ______________ 

32) Please indicate the remedial steps, if any, that you took upon concluding that the 

defense counsel failed to disclose reverse-Jencks Act material or other reciprocal 

discovery to the prosecution. Check all that apply. 

a) No action taken 

b) Ordered immediate disclosure 

c) Ordered a continuance 

d) Excluded evidence 

e) Gave jury instruction 

e) Admonished defense counsel in open court and/or in a written opinion 

f) Held defense counsel in contempt 

h) Reported defense counsel to the state’s Bar Counsel or other disciplinary 

body 

Other: Please explain: 

33) Overall, how satisfied are you with defense counsel compliance with their 

disclosure obligations under the Federal Rules?

a) Very Satisfied 

b) Satisfied 

c) Neither Satisfied nor Dissatisfied 

d) Dissatisfied 

e) Very Dissatisfied 

[GO TO PART III] 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E1 – 11 

III. POTENTIAL AMENDMENTS TO RULE 16 

34) Do you favor amending Rule 16 to address pretrial disclosure of exculpatory and 

Giglio information? 

a) Yes [Go to Question 36]

b) No [Go to Question 37]

35) Which of the following statements describes your view? Please check all that apply 

and if desired, provide any other comments in the box below. 

 

a) An amendment is needed because it will reduce the possibility that 

innocent persons will be convicted in federal proceedings. 

b) An amendment is needed because many disclosure violations pass 

undiscovered or without remedy. 

c) An amendment is needed because it will eliminate the confusion 

surrounding the use of materiality as a measure of a prosecutor’s pretrial 

disclosure obligations. 

d) An amendment is needed because the current remedies for prosecutorial 

misconduct are rarely employed. 

e) An amendment is needed because it will reduce the variations that 

currently exist in the circuits. 

f) Other:____________________________________________________ 

36) Which of the following statements describes your view? Please check all that apply 

and if desired, provide any other comments in the box below. 

a) An amendment is not needed because there is no demonstrated needed 

for change. 

b) An amendment is not needed because the current remedies for 

prosecutorial misconduct are adequate. 

c) An amendment is not needed because the recent reforms put into place 

by the Department of Justice will significantly decrease disclosure 

violations so that an amendment to Rule 16 is no longer needed to 

increase compliance. 

d) An amendment is not needed because it does not address what is really 

needed to stop abuse of disclosure obligations by prosecutors—

increasing the frequency and severity of sanctions against prosecutors for 

failure to disclose such evidence. 

e) An amendment is not needed because it will not reduce the possibility 

that innocent persons will be convicted in federal proceedings. 

f) Other:___________________________________________________ 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E1 – 12 

 In 2007, the Advisory Committee on Criminal Rules proposed the following 

amendment to Rule 16, which was not approved by the Judicial Conference’s 

Standing Committee on Rules of Practice and Procedure. Although the amendment 

as written was not approved by the Standing Committee, the Advisory Committee is 

continuing to study this issue. The remaining questions of the survey address 

potential amendments to Rule 16. 

Rule 16. Discovery and Inspection 

 (a) GOVERNMENT’S DISCLOSURE. 

(1) INFORMATION SUBJECT TO DISCLOSURE. 

... 

(H) Exculpatory or Impeaching Information. Upon a defendant’s 

request, the government must make available all information 

that is known to the attorney for the government or agents of law 

enforcement involved in the investigation of the case that is 

either exculpatory or impeaching. The court may not order 

disclosure of impeachment information earlier than 14 days 

before trial. 

37) What effect, if any, do you think this amendment might have on the privacy and 

security of cooperating witnesses? 

Please explain: 

38) What effect, if any, do you think this amendment might have on the privacy and 

security of crime victims? 

Please explain: 

39) In your opinion, should information about a victim’s or witness’s background 

that would not be admissible in evidence (e.g., mental health treatment 

information)—and that the prosecutor believes does not bear directly on the 

witness’ testimony—be disclosed? 

a) Yes 

b) No 

c) Don’t Know 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E1 – 13 

40) In your opinion, should all allegations of misconduct against law enforcement 

witnesses, —including those found not to be substantiated by an internal 

investigation—be disclosed? 

a) Yes 

b) No 

c) Don’t Know 

41) With respect to defense witnesses, should all impeachment information in the 

possession of the defense be disclosed to the prosecution prior to trial? 

a) Yes 

b) No 

c) Don’t Know 

42) If you favor an amendment to Rule 16 different from that proposed in 2007, what 

language would you suggest? 

Please explain: 

If you have any other comments or suggestions regarding the previously 

proposed amendment to Rule 16 or discovery disclosure in general that have not 

been covered in this survey, please provide them here: 

Thank you for completing this survey. If you have any questions about the survey, please 

contact Laural Hooper (lhooper@fjc.gov; 202-502-4093) or Marie Leary (mleary@fjc.gov; 

202-502-4069). 

A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 1 

RULE 16 PRETRIAL DISCLOSURE PROCEDURES AND PRACTICES 

A NATIONAL SURVEY OF CRIMINAL DEFENSE ATTORNEYS 

For the Advisory Committee on Criminal Rules of the 

Judicial Conference of the United States 

Administered by the Federal Judicial Center 

Demographic Information 

The information in this section will help us analyze survey responses based on type of 

attorney, years of practice, and district. No individual attorney will be identified in any of 

the analyses or reports we produce. 

1) How many years have you practiced law? 

_______ years 

2) In which federal district do you primarily practice? If you practice in more than 

one, please indicate the one in which you spend the most time. 

__________________ 

3) Which of the following best describes you? (Please check all that apply) 

a) Federal Public Defender/Community Defender 

b) CJA Panel Attorney 

c) Retained Criminal Defense Attorney 

4) Does a local rule, standing order or other policy in your district require disclosure 

by the prosecution to the defense that extends beyond the requirements of Brady 

v. Maryland, Giglio v. United States, Rule 16 (Discovery and Inspection), or Rule 

26.2 (Producing a Witness’s Statement)? )? For example, your district may have 

specific time requirements for disclosure or mandate automatic disclosure. 

a) If yes, [Go to Part I] 

b) If no, [Go to PART II] 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 2 

I. DISTRICT-SPECIFIC LOCAL COURT RULES, STANDING ORDERS 

OR OTHER POLICIES REGARDING PRETRIAL DISCLOSURE 

This section seeks your views on pretrial disclosure procedures and practices by 

federal prosecutors and defense counsel in your district, including questions 

addressing your districts local rule or standing order regarding disclosure in 

criminal cases. 

5) In your opinion, do the federal prosecutors in your district understand their 

pretrial discovery and disclosure obligations pursuant to your district’s local rule 

or standing order? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

6) In your opinion, do the federal prosecutors in your district follow a consistent 

policy or approach with respect to pretrial disclosure to the defense of 

exculpatory and Giglio information? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

7) Does your district’s local rule or standing order require federal prosecutors to 

disclose exculpatory or impeaching information to the defense without regard to 

materiality as defined by Brady v. Maryland and its progeny? 

a) Yes [Go to Question 8] 

b) No [Go to Question 10]
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 3 

8) Do you believe that the elimination of the materiality requirement has reduced 

problems in obtaining disclosure of exculpatory and impeaching information 

from the prosecution? Please select one answer. 

a) Eliminating materiality has reduced problems in some cases. 

b) Eliminating materiality has reduced problems in most cases. 

c) Eliminating materiality has not made a difference. 

d) Other: Please explain: 

9) In your opinion, has the elimination of the materiality requirement affected how 

often you challenge the scope of disclosure in any of your cases? 

a) Motions challenging the scope of disclosure have increased. 

b) Motions challenging the scope of disclosure have stayed the same. 

c) Motions challenging the scope of disclosure have decreased. 

d) Other: Please explain: 

10) Does your district require federal prosecutors to disclose to the defense 

exculpatory or Giglio information within a fixed time after indictment or 

arraignment? 

a) Yes [Go to Question [11]

b) No [Go to Question [12]

11) Do you believe that the requirement of disclosure within a fixed time after 

indictment or arraignment is important to the defense? Please select one 

response. 

a) The timing requirement is very important in some cases. 

b) The timing requirement is very important in most cases. 

c) The timing requirement is not very important. 

d) Other: Please explain: 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 4 

12) Please estimate the number of your cases in the past five years in which the 

government has requested a protective order prohibiting or delaying disclosure 

based on witness safety or other security considerations. 

a) 0 (None) 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

13) Please estimate the number of your cases in the past five years in which you 

believe the government has failed to provide exculpatory or Giglio information in 

compliance with your local rule or standing order. 

a) 0 (None) [Go to Question 15]

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

14) Please estimate the number of these cases in which you believe the suspected 

violation was attributable to materiality concerns (e.g., the prosecutor believed 

that the information at issue was unreliable or only minimally negated guilt). 

a) 0 (None) 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

15) Please estimate the number of your cases in the past five years in which the court 

concluded that the government failed to comply with its disclosure obligations 

pursuant to your district’s local rule or standing order. 

a) 0 (None) [Go to Question 18] 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 5 

16) What was the nature of the most frequent violation? 

a) Matter concerned the scope of disclosure. 

b) Matter concerned the failure to disclose on time. 

c) Matter concerned the failure to disclose at all. 

d) Other:_________________ 

17) Please indicate the remedial steps, if any, the court took in these cases upon 

concluding that the prosecution had violated its disclosure obligations under 

your district’s local rule or standing order. Check all that apply. 

a) No action taken 

b) Court ordered immediate disclosure 

c) Court ordered a continuance 

d) Court excluded evidence 

e) Court gave jury instruction 

f) Court admonished federal prosecutor in open court and/or in a written 

opinion 

g) Court held federal prosecutor in contempt 

h) Court reported federal prosecutor to the Department of Justice Office of 

Professional Responsibility 

i) Court reported federal prosecutor to the state’s bar counsel or other 

disciplinary body 

j) Other: Please explain 

18) Overall, how satisfied are you with federal prosecutor compliance with your 

district’s disclosure rules? 

a) Very Satisfied 

b) Satisfied 

c) Neither Satisfied nor Dissatisfied 

d) Dissatisfied 

e) Very Dissatisfied 

19) In your opinion, in practice, are the differences between your local rule or 

standing order and the requirements of the United States Constitution and Rule 

16 significant or not significant? 

a) Significant 

b) Not Significant 

Please explain: 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 6 

20) In your opinion, do defense counsel in your district understand their discovery 

and disclosure obligations, including their obligation to provide reciprocal 

discovery under Rule 16(b) and reverse-Jencks Act material pursuant to Rule 26.2? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

21) Please estimate the number of your cases in the past five years in which the court 

concluded that defense counsel failed to disclose reverse-Jencks Act material or 

other reciprocal discovery to the prosecution. 

a) 0 (None) [Go to Question 24] 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

22) What was the nature of the most frequent violation? 

 a) Matter concerned the scope of disclosure. 

 b) Matter concerned the failure to disclose on time. 

 c) Matter concerned the failure to disclose at all. 

 d) Other: ______________ 

23) Please indicate the remedial steps, if any, the court took in these cases upon 

concluding that defense counsel had violated their disclosure obligations under 

your district’s local rule or standing order. Check all that apply. 

a) No action taken 

b) Court ordered immediate disclosure 

c) Court ordered a continuance 

d) Court excluded evidence 

e) Court gave jury instruction 

f) Court admonished defense counsel in open court and/or in a written 

opinion 

g) Court held defense counsel in contempt 

h) Court reported defense counsel to the state’s Bar Counsel or other 

disciplinary body 

i) Other: Please explain 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 7 

24) Overall, how satisfied are you with defense counsel compliance with their 

disclosure obligations under the Federal Rules? 

a) Very satisfied 

b) Satisfied 

c) Neither Satisfied nor Dissatisfied 

d) Dissatisfied 

e) Very Dissatisfied 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 8 

II. DISCLOSURE PROCEDURES AND PRACTICES PURSUANT TO THE 

UNITED STATES CONSTITUTION AND RULES 16 AND 26.2 

This section seeks your views on specific pretrial disclosure procedures and 

practices by federal prosecutors and defense counsel pursuant to the 

Constitution, Rule 16, and Rule 26.2. 

25) In your opinion, do federal prosecutors in your district understand their federal 

constitutional disclosure obligations (i.e., Brady v. Maryland, Giglio v. United 

States, and their progeny)? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

26) In your opinion, do federal prosecutors in your district follow a consistent policy 

or approach with respect to pretrial disclosure to the defense of exculpatory and 

Giglio information? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

27) Please estimate the number of your cases in the past five years in which the 

government requested the court enter a protective order prohibiting or delaying 

disclosure of exculpatory or Giglio information based on witness safety or other 

security considerations. 

a) 0 (None). 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 9 

28) Please estimate the number of your cases in the past five years in which you 

believe the government failed to comply with its obligations to disclose 

exculpatory or Giglio information. 

a) 0 (None) [Go to Question 30]

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

29) Please estimate the number of these cases in which you believe the suspected 

violation was attributable to Brady materiality concerns (e.g., the prosecutor 

believed that the information at issue was unreliable or only minimally negated 

guilt). 

a) 0 (None) 

b) 1 

g) 2-4 

h) 5-10 

i) 11-20 

j) More than 20 

30) Please estimate the number of your cases in the past five years in which the court 

concluded that the government failed to comply with its obligations to disclose 

exculpatory and Giglio information. 

a) 0 (None) [Go to Question 33]

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

31) What was the nature of the most frequent violation? 

a) Matter concerned the scope of disclosure. 

b) Matter concerned the failure to disclose on time. 

c) Matter concerned the failure to disclose at all. 

d) Other 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 10 

32) Please indicate the remedial steps, if any, the court took in these cases upon 

concluding that the prosecution had violated its disclosure obligations. Check all 

that apply. 

a) No action taken 

b) Court ordered immediate disclosure 

c) Court ordered a continuance 

d) Court excluded evidence 

e) Court gave jury instruction 

f) Court admonished federal prosecutor in open court and/or in a written 

opinion 

g) Court held federal prosecutor in contempt 

h) Court reported federal prosecutor to Department of Justice Office of 

Professional Responsibility 

i) Court reported federal prosecutor to the state’s bar counsel or other 

disciplinary body 

j) Other: Please explain 

33) Overall, how satisfied are you with federal prosecutor compliance with the 

government’s disclosure obligations under the Constitution? 

a) Very Satisfied 

b) Satisfied 

c) Neither Satisfied nor Dissatisfied 

d) Dissatisfied 

e) Very Dissatisfied 

34) In your opinion, do defense counsel understand their discovery and disclosure 

obligations, including their obligation to provide reciprocal discovery under Rule 

16(b) and reverse-Jencks Act material pursuant to Rule 26.2? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 11 

35) Please estimate the number of your cases in the past five years in which the court 

concluded that defense counsel failed to disclose reverse-Jencks Act material or 

other reciprocal discovery to the prosecution. 

a) 0 (None) [Go to Question 38] 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

36) What was the nature of the most frequent violation? 

 a) Matter concerned the scope of disclosure. 

 b) Matter concerned the failure to disclose on time. 

 c) Matter concerned the failure to disclose at all. 

 d) Other: ______________ 

37) Please indicate the remedial steps, if any, the court took in these cases upon 

concluding that defense counsel had violated their disclosure obligations. Check 

all that apply. 

a) No action taken 

b) Court ordered immediate disclosure 

c) Court ordered a continuance 

d) Court excluded evidence 

e) Court gave jury instruction 

f) Court admonished defense counsel in open court and/or in a written 

opinion 

g) Court held defense counsel in contempt 

h) Court reported defense counsel to the state’s Bar Counsel or other 

disciplinary body 

i) Other: Please explain 

38) Overall, how satisfied are you with defense counsel compliance with their 

disclosure obligations under the Federal Rules? 

a) Very satisfied 

b) Satisfied 

c) Neither Satisfied nor Dissatisfied 

d) Dissatisfied 

e) Very Dissatisfied 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 12 

III. POTENTIAL AMENDMENTS TO RULE 16 

39) Do you favor amending Rule 16 to address pretrial disclosure of exculpatory and 

Giglio information? 

a) Yes [Go to Question 40] 

b) No [Go to Question 41]

40) Which of the following statements describes your view? Please check all that apply 

and if desired, provide any other comments in the box below. 

 

a. An amendment is needed because it will reduce the possibility that 

innocent persons will be convicted in federal proceedings. 

b. An amendment is needed because many disclosure violations pass 

undiscovered or without remedy. 

c. An amendment is needed because it will eliminate the confusion 

surrounding use of materiality as a measure of a prosecutor’s pretrial 

disclosure obligations. 

d. An amendment is needed because the current remedies for prosecutorial 

misconduct are rarely employed. 

e. An amendment is needed because it will reduce the variations that 

currently exist in the circuits. 

f. Other:____________________________________________________ 

41) Which of the following statements describes your view? Please check all that apply 

and if desired, provide any other comments in the box below. 

a. An amendment is not needed because there is no demonstrated need for 

change. 

b. An amendment is not needed because the current remedies for 

prosecutorial misconduct are adequate. 

c. An amendment is not needed because the recent reforms put into place 

by the Department of Justice will significantly decrease disclosure 

violations so that an amendment to Rule 16 is no longer needed to 

increase compliance. 

d. An amendment is not needed because it does not address what is really 

needed to stop abuse of disclosure obligations by prosecutors—

increasing the frequency and severity of sanctions against prosecutors for 

failure to disclose such evidence. 

e. An amendment is not needed because it will not reduce the possibility 

that innocent persons will be convicted in federal proceedings. 

f. Other:___________________________________________________ 

 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 13 

In 2007, the Advisory Committee on Criminal Rules proposed the following 

amendment to Rule 16, which was not approved by the Judicial Conference’s 

Standing Committee on Rules of Practice and Procedure. Although the amendment 

as written was not approved by the Standing Committee, the Advisory Committee is 

continuing to study this issue. The remaining questions of the survey address 

potential amendments to Rule 16. 

Rule 16. Discovery and Inspection 

 (a) GOVERNMENT’S DISCLOSURE. 

(1) INFORMATION SUBJECT TO DISCLOSURE. 

... 

 (H) Exculpatory or Impeaching Information. Upon a 

defendant’s request, the government must make available 

all information that is known to the attorney for the 

government or agents of law enforcement involved in the 

investigation of the case that is either exculpatory or 

impeaching. The court may not order disclosure of 

impeachment information earlier than 14 days before trial. 

42) What effect, if any, do you think this amendment might have on the privacy and 

security of cooperating witnesses? 

Please explain: 

43) What effect, if any, do you think this amendment might have on the privacy and 

security of crime victims? 

Please explain: 

44) Do you believe that a rule change eliminating the Brady materiality requirement 

would result in any change to the frequency of motions by defense counsel for 

Brady violations? 

a) Motions challenging the scope of disclosure would increase. 

b) Motions challenging the scope of disclosure would stay the same. 

c) Motions challenging the scope of disclosure would decrease. 

d) Other: 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E2 – 14 

45) In your opinion, should information about a victim’s or witness’s background 

that would not be admissible in evidence (e.g., mental health treatment 

information)—and that the prosecutor believes does not bear directly on the 

witness’s testimony—be disclosed? 

a) Yes 

b) No 

c) Don’t Know 

46) In your opinion, should all allegations of misconduct against law enforcement 

witnesses—including those found not to be substantiated by an internal 

investigation—be disclosed? 

a) Yes 

b) No 

c) Don’t Know 

47) With respect to defense witnesses, should all impeachment information in the 

possession of the defense be disclosed to the prosecution prior to trial? 

a) Yes 

b) No 

c) Don’t Know 

48) If you favor an amendment to Rule 16 different from that proposed in 2007, what 

language would you suggest? 

Please explain: 

49) If you have any other comments or suggestions regarding the previously 

proposed amendment to Rule 16 or discovery disclosure in general that have not 

been covered in this survey, please provide them here. 

Thank you for completing this survey. If you have any questions about the survey, please 

contact Laural Hooper (lhooper@fjc.gov; 202-502-4093) or Marie Leary (mleary@fjc.gov; 

202-502-4069). 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E3 – 1 

RULE 16 PRETRIAL DISCLOSURE PROCEDURES AND PRACTICES 

A NATIONAL SURVEY OF FEDERAL PROSECUTORS 

For the Advisory Committee on Criminal Rules of the 

Judicial Conference of the United States 

Administered by the Federal Judicial Center 

Demographic Information 

 No individual attorney will be identified in any of the analyses or reports we produce. 

1) How many years have you been a federal prosecutor? 

_______ years 

2) In which federal district do you primarily practice? 

__________________ 

3) Does a local rule, standing order or other policy in your district require disclosure 

by the prosecution to the defense that extends beyond the requirements of Brady 

v. Maryland, Giglio v. United States, Rule 16 (Discovery and Inspection), or Rule 

26.2 (Producing a Witness’s Statement)? For example, your district may have 

specific time requirements for disclosure or mandate automatic disclosure. 

a) If yes, [Go to Part I] 

b) If no, [Go to PART II] 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E3 – 2 

I. DISTRICT SPECIFIC LOCAL COURT RULES, STANDING ORDERS OR 

OTHER POLICIES REGARDING PRETRIAL DISCLOSURE 

This section seeks your views on pretrial disclosure procedures and practices by 

federal prosecutors and defense counsel in your district, including questions 

addressing your district’s local rule or standing order regarding disclosure in criminal 

cases. 

4) In your opinion, do the federal prosecutors in your district understand their 

pretrial disclosure obligations pursuant to your district’s local rule or standing 

order? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

5) Does your district’s local rule or standing order require federal prosecutors to 

disclose exculpatory or impeaching information to the defense without regard to 

materiality as defined in Brady v. Maryland and its progeny? 

 

a) Yes [Go to Question 6] 

b) No [Go to Question 7]

6) Do you believe that elimination of the materiality requirement has reduced 

problems or confusion in the prosecution’s pre-trial discovery analysis? Please 

select one answer. 

a) Eliminating materiality has reduced problems in some cases. 

b) Eliminating materiality has reduced problems in most cases. 

c) Eliminating materiality has not made a difference. 

d) Other: Please explain: 

7) Does your district require federal prosecutors to disclose to the defense 

exculpatory or Giglio information within a fixed time after indictment or 

arraignment? 

a) Yes [Go to Question 8] 

b)
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E3 – 3 

8) Do you believe that this timing requirement has caused problems for the 

prosecution? 

a) The timing of disclosure has caused minor problems in some cases. 

b) The timing of disclosure has caused minor problems in most cases. 

c) The timing of disclosure has caused serious problems in some cases. 

d) The timing of disclosure has caused serious problems in most cases. 

e) The timing of disclosure has caused no problems. 

f) No opinion. 

g) Other: Please explain: 

9) In the past five years, how often have you been unable to obtain cooperation from 

a witness because of the timing of disclosure to the defense required by local rule 

or standing order? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

10) Please estimate the number of your cases in the past five years in which you have 

requested a protective order prohibiting or delaying the disclosure otherwise 

required by your local rule or standing order based on witness safety or other 

security considerations. 

a) 0 (None) 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

11) Please estimate the number of your cases in the past five years in which the 

defense has alleged that the government failed to provide exculpatory or Giglio

information in compliance with your local rule or standing order. 

a) 0 (None) 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E3 – 4 

12) Please estimate the number of your cases in the past five years in which the court 

concluded that the government failed to comply with its disclosure obligations 

pursuant to your district’s local rule or standing order. 

a) 0 (None) [Go to Question 15] 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

13) What was the nature of the most frequent violation of your district’s local rule or 

standing order? 

a) Matter concerned the scope of disclosure. 

b) Matter concerned the failure to disclose on time. 

c) Matter concerned the failure to disclose at all. 

d) Other: ______________ 

14) Please indicate the remedial steps, if any, the court took in these cases upon 

concluding that the prosecution had violated its disclosure obligations under 

your district’s local rule or standing order. Check all that apply. 

a) No action taken 

b) Court ordered immediate disclosure 

c) Court ordered a continuance 

d) Court excluded evidence 

e) Court gave jury instruction 

f) Court admonished federal prosecutor in open court and/or in a written 

opinion 

g) Court held federal prosecutor in contempt 

h) Court reported federal prosecutor to Department of Justice Office of 

Professional Responsibility (OPR) 

i) Court reported federal prosecutor to the state’s bar counsel or other 

disciplinary body 

j) Other: Please explain 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E3 – 5 

15) Overall, how satisfied are you with federal prosecutor compliance with your 

district’s disclosure rules? 

a) Very Satisfied 

b) Satisfied 

c) Neither Satisfied nor Dissatisfied 

d) Dissatisfied 

e) Very Dissatisfied 

16) In your opinion, in practice, are the differences between your local rule or 

standing order and the requirements of the United States Constitution and Rule 

16 significant or not significant? 

a) Significant 

b) Not Significant 

Please explain: 

[GO To Part II]
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E3 – 6 

II. PRETRIAL DISCLOSURE PROCEDURES AND PRACTICES PURSUANT TO 

THE UNITED STATES CONSTITUTION AND RULES 16 AND 26.2 

This section seeks your views on specific disclosure procedures and practices 

by federal prosecutors and defense counsel pursuant to the Constitution, 

Rule 16, and Rule 26.2. 

17) In your opinion, do federal prosecutors in your district understand their federal 

constitutional disclosure obligations (i.e., Brady v. Maryland, Giglio v. United 

States, and their progeny)? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

18) In your opinion, do federal prosecutors in your district follow a consistent policy 

or approach with respect to disclosure of exculpatory and Giglio information? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 

19) Please describe how federal prosecutors in your district determine whether 

information is material under the Constitution? 

20) Please estimate the number of cases in the past five years in which you requested 

the court enter a protective order prohibiting or delaying disclosure otherwise 

required by the Constitution based on witness safety or other security 

considerations. 

a) 0 (None) 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E3 – 7 

21) Please estimate the number of your cases in the past five years in which the 

defense has alleged that the government failed to provide exculpatory or Giglio

information (including cases in which the defense also alleged a violation of a 

local discovery rule). 

a) 0 (None) 

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

22) Please estimate the number of your cases in the past five years in which the court 

concluded that the government failed to comply with its disclosure obligations 

under the Constitution. 

a) 0 (None) [Go to Question 25]

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

f) More than 20 

23) What was the nature of the most frequent violation of the constitutional 

disclosure obligations? 

a) Matter concerned the scope of disclosure. 

b) Matter concerned the failure to disclose on time. 

c) Matter concerned the failure to disclose at all. 

d) Other: ______________ 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E3 – 8 

24) Please indicate the remedial steps, if any, the court took in these cases upon 

concluding that the prosecution had violated its disclosure obligations under the 

Constitution. Check all that apply. 

a) No action taken 

b) Court ordered immediate disclosure 

c) Court ordered a continuance 

d) Court excluded evidence 

e) Court gave jury instruction 

f) Court admonished federal prosecutor in open court and/or in a written 

opinion 

g) Court held federal prosecutor in contempt 

h) Court reported federal prosecutor to the Department of Justice Office of 

Professional Responsibility (OPR) 

i) Court reported federal prosecutor to the state’s bar counsel or other 

disciplinary body 

j) Other: Please explain 

19) Overall, how satisfied are you with federal prosecutor compliance with the 

government’s disclosure obligations under the Constitution? 

a) Very Satisfied 

b) Satisfied 

c) Neither Satisfied nor Dissatisfied 

d) Dissatisfied 

e) Very Dissatisfied 

20) In your opinion, do defense counsel in your district understand their discovery 

and disclosure obligations, including their obligation to provide reciprocal 

pretrial discovery under Rule 16(b) and reverse-Jencks Act material pursuant to 

Rule 26.2? 

a) Always 

b) Usually 

c) Sometimes 

d) Rarely 

e) Never 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E3 – 9 

21) Please estimate the number of your cases in the past five years in which the court 

concluded that defense counsel failed to disclose reverse-Jencks Act material or 

other reciprocal discovery to the prosecution. 

a) 0 (None) [Go to Question 30]

b) 1 

c) 2-4 

d) 5-10 

e) 11-20 

22) What was the nature of the most frequent violation? 

 a) Matter concerned the scope of disclosure. 

 b) Matter concerned the failure to disclose on time. 

 c) Matter concerned the failure to disclose at all. 

 d) Other: ______________ 

23) Please indicate the remedial steps, if any, the court took in these cases upon 

concluding that defense counsel had violated its disclosure obligations. Check all 

that apply. 

a) No action taken 

b) Court ordered immediate disclosure 

c) Court ordered a continuance 

d) Court excluded evidence 

e) Court gave jury instruction 

f) Court admonished defense counsel in open court and/or in a written 

opinion 

g) Court held defense counsel in contempt 

h) Court reported defense counsel to the state’s Bar Counsel or other 

disciplinary body 

i) Other: Please explain 

24) Overall, how satisfied are you with defense counsel compliance with their 

disclosure obligations under the Federal Rules? 

a) Very satisfied 

b) Satisfied 

c) Neither Satisfied nor Dissatisfied 

d) Dissatisfied 

e) Very Dissatisfied 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E3 – 10 

III. POTENTIAL AMENDMENTS TO RULE 16 

25) Do you favor amending Rule 16 to address pretrial disclosure of exculpatory and 

Giglio information? 

a) Yes [Go to Question 32] 

b) No [Go to Question 33] 

26) Which of the following statements describes your view? Please check all that apply 

and if desired, provide any other comments in the box below. 

 

a. An amendment is needed because it will reduce the possibility that 

innocent persons will be convicted in federal proceedings. 

b. An amendment is needed because many disclosure violations pass 

undiscovered or without remedy. 

c. An amendment is needed because it will eliminate the confusion 

surrounding use of materiality as a measure of a prosecutor’s pretrial 

disclosure obligations. 

d. An amendment is needed because the current remedies for prosecutorial 

misconduct are rarely employed. 

e. An amendment is needed because it will reduce the variations that 

currently exist in the circuits. 

f. Other:____________________________________________________ 

27) Which of the following statements describes your view? Please check all that apply 

and if desired, provide any other comments in the box below. 

a. An amendment is not needed because there is no demonstrated need for 

change. 

b. An amendment is not needed because the current remedies for 

prosecutorial misconduct are adequate. 

c. An amendment is not needed because the recent reforms put into place 

by the Department of Justice will significantly decrease disclosure 

violations so that an amendment to Rule 16 is no longer needed to 

increase compliance. 

d. An amendment is not needed because it does not address what is really 

needed to stop abuse of disclosure obligations by prosecutors—

increasing the frequency and severity of sanctions against prosecutors for 

failure to disclose such evidence. 

e. An amendment is not needed because it will not reduce the possibility 

that innocent persons will be convicted in federal proceedings. 

f. Other:___________________________________________________ 

 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E3 – 11 

In 2007, the Advisory Committee on Criminal Rules proposed the following 

amendment to Rule 16, which was not approved by the Judicial Conference’s 

Standing Committee on Rules of Practice and Procedure. Although the amendment 

as written was not approved by the Standing Committee, the Advisory Committee is 

continuing to study this issue. The remaining questions of the survey address 

potential amendments to Rule 16. 

Rule 16. Discovery and Inspection 

 (a) GOVERNMENT’S DISCLOSURE. 

(1) INFORMATION SUBJECT TO DISCLOSURE. 

... 

 (H) Exculpatory or Impeaching Information. Upon a 

defendant’s request, the government must make available 

all information that is known to the attorney for the 

government or agents of law enforcement involved in the 

investigation of the case that is either exculpatory or 

impeaching. The court may not order disclosure of 

impeachment information earlier than 14 days before trial. 

28) What effect, if any, do you think this amendment might have on the privacy and 

security of cooperating witnesses? 

Please explain: 

29) What effect, if any, do you think this amendment might have on the privacy and 

security of crime victims? 

Please explain: 

30) Do you believe that a rule change eliminating the Brady materiality requirement 

would result in any change to the frequency of motions by defense counsel for 

Brady violations? 

a) Motions challenging the scope of disclosure would increase. 

b) Motions challenging the scope of disclosure would stay the same. 

c) Motions challenging the scope of disclosure would decrease. 

d) Other: 
A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and 

Disclosure Practices in Criminal Cases • Federal Judicial Center 2011 

Appendix E3 – 12 

31) In your opinion, should information about a victim’s or witness’s background 

that would not be admissible in evidence (e.g., mental health treatment 

information)—and that the prosecutor believes does not bear directly on the 

witness’s testimony—be disclosed? 

a) Yes 

b) No 

c) Don’t Know 

32) In your opinion, should all allegations of misconduct against law enforcement 

witnesses—including those found not to be substantiated by an internal 

investigation—be disclosed? 

a) Yes 

b) No 

c) Don’t Know 

33) With respect to defense witnesses, should all impeachment information in the 

possession of the defense be disclosed to the prosecution prior to trial? 

a) Yes 

b) No 

c) Don’t Know 

34) If you favor an amendment to Rule 16 different from that proposed in 2007, what 

language would you suggest? 

Please explain: 

35) If you have any other comments or suggestions regarding the previously 

proposed amendment to Rule 16 or discovery disclosure in general that have not 

been covered in this survey, please provide them here. 

Thank you for completing this survey. If you have any questions about the survey, please 

contact Laural Hooper (lhooper@fjc.gov; 202-502-4093) or Marie Leary (mleary@fjc.gov; 

202-502-4069).