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January 9, 2007

Ninth Circuit Panel Splits on Fed. R. Crim. Pro. 16(a)(2)

In U.S. v. Fort, 2007 WL 39085 (9th Cir. Jan. 8, 2007), the court addressed "whether investigative reports prepared by a local police department prior to a federal prosecutor’s involvement qualify for the discovery exemption created by Rule 16(a)(2) when they are turned over to the federal prosecutor for use in the federal investigation and prosecution of the same acts by the same people.”

The rules provide:

Upon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph . . . documents . . . if the item is within the government’s possession, custody, or control and:

(I) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

Rule 16(a)(2) limits the scope of discoverable materials:

Except as Rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.

The majority held that the district court had erred in concluding that the reports were not exempted; the dissent disagreed. It's quite a good read.

January 9, 2007 in Current Affairs | Permalink

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