Office of the Attorney General
MEMORANDUM FOR ALL FEDERAL PROSECUTORS
FROM: THE ATTORNEY GENERAL
SUBJECT: Department's Response to Proposed Changes in Rule 16
I want to advise you of the Department's response to changes to Rule 16 of the Federal Rules of Criminal Procedure proposed by the Judicial Conference's Advisory Committee on the Rules of Criminal Procedure and Standing Committee on the Rules of Practice and Procedure. Certain members of each committee have raised concerns that some federal prosecutors withhold discovery of witness names and statements merely for strategic advantage and that justice thereby sometimes is being delayed and disserved. Based on these concerns, the Judicial Conference's Advisory Committee has proposed and the Standing Committee has issued for public comment a change to Rule 16 that would generally require disclosure of witness names and statements seven days before trial.
The Department, virtually alone, opposed this change to Rule 16, and we will continue to oppose it. I authorized the Department's opposition because I have confidence that, on the whole, federal prosecutors are appropriately weighing the relevant considerations relating to discovery of names and statements. We are mindful of our duties to protect the safety and cooperativeness of prospective witnesses and guard against any perversion of the judicial process. At the same time, we recognize that appropriate disclosure can further the interests of justice in many cases. See United States Attorneys' Manual 96.200. Indeed, the survey conducted by the Executive Office for United States Attorneys ("EOUSA") regarding your districts' discovery practices confirms that, generally, unless there is a belief that disclosure would harm the interests of justice in a particular case, prosecuting attorneys turn over names and statements in advance of the requirements of Rule 16 and the Jencks Act.
The Department also takes the position that no rule change is necessary because the Department itself is best able to monitor its discovery practices and to ensure that we are operating in a fair and appropriate manner. Finally, we have objected to wide-ranging changes to well-established rules based only on anecdote. Thus, the Department has committed to studying its discovery practices in an effort to provide a rational basis for further debate and analysis.
To fulfil our promise to further study our discovery practices, and to maintain open communication on this issue with the judiciary, I ask each United States Attorney to communicate with all of the judges in his or her district about the issue of criminal discovery. In particular, each United States Attorney should ask that the judges contact him or her whenever the discovery practices in the district cause delay or other problems in the course of a trial, and United States Attorneys should report to the Director of EOUSA any problems so identified.