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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

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