Posted On Monday, November 21, 2022
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Takeaway: The substantive amendments to Rule 16 address many of the criticisms of the prior rule, making it a more effective discovery device.
This December, a significant Amendment to Rule 16 of the Federal Rules of Criminal Procedure goes into effect that enlarges the expert disclosure obligations of both the Government and Defense where invoked. This Amendment accomplishes a significant overhaul of the existing expert disclosure rule and goes a long way to bring the criminal rule more in line with its civil counter-part, clarifying exactly what needs to be disclosed, emphasizing that such disclosure be made within a reasonable time-frame, and requiring that the proffered expert sign the disclosure.
Defense attorneys have long complained that the existing rule allowed the government to flout their expert discovery obligations by providing last-minute, over-broad summaries of testimony the government expected its experts to provide based on testimony given in other cases, often when the expert has not even reviewed the case at bar. By requiring the proffered expert to sign the disclosure, the Amended Rule forces the government to provide substantive notice of an expert’s anticipated testimony from an expert who is now subject to impeachment with the signed disclosure. The signature requirement serves as a powerful enforcement mechanism.
The Amended rule also serves to ensure that the disclosures are substantive and accurate by specifying what must be included in the disclosure, including:
● a complete statement of all opinions that the government will elicit from the witness in its case-in-chief, or during its rebuttal to counter testimony that the defendant has timely disclosed under (b)(1)(C);
● the bases and reasons for them;
● the witness’s qualifications, including a list of all publications authored in the previous 10 years; and
● a list of all other cases in which, during the previous 4 years, the witness has testified as an expert at trial or by deposition.
These disclosure obligations are ongoing, requiring supplementation where appropriate.
Importantly, the rule also precludes last minute disclosure by stating, “The court, by order or local rule, must set a time for the government to make its disclosures. The time must be sufficiently before trial to provide a fair opportunity for the defendant to meet the government’s evidence.” This important addition to the rule serves to preclude trial by surprise.
Defense counsel must be mindful that if they invoke the government’s disclosure obligation, and the government complies, they too will be subject to the same disclosure obligations under the rule. The time frame for such disclosure will be set by court order or local rule, “sufficiently before trial to provide a fair opportunity for the government to meet the defendant’s evidence.” For this reason, defense counsel might choose not to invoke the rule. However, this newly crafted Rule provides a powerful tool for the defense in the proper case.
Posted On Monday, November 14, 2022
Takeaway: A federal appeals court held that a witness does not waive their Fifth Amendment privilege against self-incrimination at trial by giving deposition testimony in the same case.
In a decision with potential far-reaching implications, the Sixth Circuit federal appeals court this week preserved a witness’s right against self-incrimination at trial in a civil case where deposition testimony had previously been given. Several former Michigan government officials called as witnesses in the Flint water crisis trial had unsuccessfully attempted to invoke their Fifth Amendment privilege; on appeal, the court found that the trial judge erred by ordering them to testify.
The Trial Court Held That Deposition Testimony Waived Fifth Amendment Protection At Trial
Residents in Flint, Michigan sued two consulting firms that performed work for the city, accusing them of polluting the city’s drinking water with lead, resulting in one of the most horrific public health crises in recent history. Prior to trial, former government officials, including the former Michigan governor Rick Snyder, his senior advisor Richard Baird, emergency managers Gerald Ambrose and Darnell Earley, and Department of Public Works Director Howard Croft, all testified at deposition about their involvement in the scandal.
At trial, former governor Snyder attempted to assert his Fifth Amendment privilege against self-incrimination. The trial judge refused to honor this request and ordered him to testify, reasoning that his prior deposition testimony constituted a waiver of this privilege at trial.
The Appellate Court Said…Not So Fast!
In a fascinating split ruling, the Sixth Circuit federal appeals court overturned the lower court’s decision, holding that a witness does not waive their privilege against self-incrimination by giving deposition testimony in the same case. The appellate court reasoned that a deposition and a trial are not the same proceeding, and the Fifth Amendment privilege “is to be interpreted broadly… in favor of the right it was intended to secure.”
The Fifth Amendment privilege is implicated when a witness testifies and is then subject to cross-examination. However, the appellate court distinguished that a deposition and a trial are separate events, and each time a witness testifies and is cross-examined constitutes a “single testimonial event,” separately implicating the witness’s protection from self-incrimination. A waiver of the Fifth Amendment privilege in one event does not automatically waive the privilege in a subsequent proceeding. Explaining the logic driving this decision, the court held that the witnesses who sought to invoke their privilege against self-incrimination “may face further incrimination during trial by repetition of their testimony, the possibility of further disclosure, and the threat of perjury. The purposes of a deposition and trial serve different ends.”
Stay Tuned For Further Developments
Although the proceedings in this case ended in a mistrial, further trials are scheduled. The appellate court’s ruling is expected to protect the Fifth Amendment rights of the former government officials called as witnesses in these future trials, and it remains to be seen how this decision could affect other civil cases in the future.
The opinion, published on November 8, 2022, can be read here.
