The difference in the discovery requirements between criminal and civil litigation has long been the subject of heated debate among attorneys, judges and legal scholars. The more limited disclosure in criminal cases, when a defendant’s liberty is at risk, stands in marked contrast to the fulsome disclosure afforded parties in a civil litigation, when only money is typically at issue. Sparking the latest round of debate on this issue is a survey currently being conducted by the Judicial Conference Advisory Committee on Criminal Rules regarding Rule 16 of the Federal Rules of Criminal Procedure. Under the Criminal Rules, prosecutors are in most part only required to disclose documents that are “material to preparing the defense,” or intended for use by the government as evidence in chief at the trial.1
The Advisory Committee survey is intended to “again study[] whether to propose an amendment [to Rule 16] that would require the government to disclose to the defense all exculpatory and impeachment information without regard to materiality.” The survey—which was prompted by a series of recent instances of prosecutorial misconduct—suggests that the Advisory Committee may explore whether a presumption of full disclosure to defendants of all relevant evidence, akin to the presumption underlying civil discovery, is warranted, at least in many criminal cases.
Civil vs. Criminal Rules
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