(a) Government’s Disclosure.
(1) Information Subject to Disclosure.
(A) Defendant’s Oral Statement. Upon a defendant’s re-
quest, the government must disclose to the defendant the
substance of any relevant oral statement made by the de-
fendant, before or after arrest, in response to interrogation
by a person the defendant knew was a government agent
if the government intends to use the statement at trial.
(B) Defendant’s Written or Recorded Statement. Upon a de-
fendant’s request, the government must disclose to the de-
fendant, and make available for inspection, copying, or
photographing, all of the following:
(i) any relevant written or recorded statement by the
defendant if:
• the statement is within the government’s pos-
session, custody, or control; and
• the attorney for the government knows—or
through due diligence could know—that the state-
ment exists;
(ii) the portion of any written record containing the
substance of any relevant oral statement made before
or after arrest if the defendant made the statement in
response to interrogation by a person the defendant
knew was a government agent; and
(iii) the defendant’s recorded testimony before a
grand jury relating to the charged offense.
(C) Organizational Defendant. Upon a defendant’s request,
if the defendant is an organization, the government must
disclose to the defendant any statement described in Rule
16(a)(1)(A) and (B) if the government contends that the
person making the statement:
(i) was legally able to bind the defendant regarding
the subject of the statement because of that person’s
position as the defendant’s director, officer, employee,
or agent; or
(ii) was personally involved in the alleged conduct
constituting the offense and was legally able to bind
the defendant regarding that conduct because of that
person’s position as the defendant’s director, officer,
employee, or agent.
(D) Defendant’s Prior Record. Upon a defendant’s request,
the government must furnish the defendant with a copy of
the defendant’s prior criminal record that is within the
government’s possession, custody, or control if the attor-
ney for the government knows—or through due diligence
could know—that the record exists.
(E) Documents and Objects. Upon a defendant’s request,
the government must permit the defendant to inspect and
to copy or photograph books, papers, documents, data,
photographs, tangible objects, buildings or places, or cop-
ies or portions of any of these items, 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 de-
fendant.
(F) Reports of Examinations and Tests. Upon a defendant’s
request, the government must permit a defendant to in-
spect and to copy or photograph the results or reports of
any physical or mental examination and of any scientific
test or experiment if:
(i) the item is within the government’s possession,
custody, or control;
(ii) the attorney for the government knows—or
through due diligence could know—that the item ex-
ists; and
(iii) the item is material to preparing the defense or
the government intends to use the item in its case-in-
chief at trial.
(G) Expert Witnesses.
(i) Duty to Disclose. At the defendant’s request, the
government must disclose to the defendant, in writing,
the information required by (iii) for any testimony
that the government intends to use at trial under Fed-
eral Rule of Evidence 702, 703, or 705 during its case-in-
chief, or during its rebuttal to counter testimony that
the defendant has timely disclosed under (b)(1)(C). If
the government requests discovery under the second
bullet point in (b)(1)(C)(i) and the defendant complies,
the government must, at the defendant’s request, dis-
close to the defendant, in writing, the information re-
quired by (iii) for testimony that the government in-
tends to use at trial under
Federal Rule of Evidence702, 703, or 705 on the issue of the defendant’s mental
condition.
(ii) Time to Disclose. 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.
(iii) Contents of the Disclosure. The disclosure for
each expert witness must contain:
• 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 testi-
mony 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 ex-
pert at trial or by deposition.
(iv) Information Previously Disclosed. If the govern-
ment previously provided a report under (F) that con-
tained information required by (iii), that information
may be referred to, rather than repeated, in the expert-
witness disclosure.
(v) Signing the Disclosure. The witness must approve
and sign the disclosure, unless the government:
• states in the disclosure why it could not ob-
tain the witness’s signature through reasonable ef-
forts; or
• has previously provided under (F) a report,
signed by the witness, that contains all the opin-
ions and the bases and reasons for them required
by (iii).
(vi) Supplementing and Correcting a Disclosure. The
government must supplement or correct its disclosures
in accordance with (c).
(2) Information Not Subject to Disclosure. Except as per-
mitted by Rule 16(a)(1)(A)–(D), (F), and (G), 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.
(3) Grand Jury Transcripts. This rule does not apply to the
discovery or inspection of a grand jury’s recorded proceedings,
except as provided in Rules 6, 12(h), 16(a)(1), and 26.2.
(b) Defendant’s Disclosure.
(1) Information Subject to Disclosure.
(A) Documents and Objects. If a defendant requests disclo-
sure under Rule 16(a)(1)(E) and the government complies,
then the defendant must permit the government, upon re-
quest, to inspect and to copy or photograph books, papers,
documents, data, photographs, tangible objects, buildings
or places, or copies or portions of any of these items if:
(i) the item is within the defendant’s possession, cus-
tody, or control; and
(ii) the defendant intends to use the item in the de-
fendant’s case-in-chief at trial.
(B) Reports of Examinations and Tests. If a defendant re-
quests disclosure under Rule 16(a)(1)(F) and the govern-
ment complies, the defendant must permit the govern-
ment, upon request, to inspect and to copy or photograph
the results or reports of any physical or mental examina-
tion and of any scientific test or experiment if:
(i) the item is within the defendant’s possession, cus-
tody, or control; and
(ii) the defendant intends to use the item in the de-
fendant’s case-in-chief at trial, or intends to call the
witness who prepared the report and the report relates
to the witness’s testimony.
(C) Expert Witnesses.
(i) Duty to Disclose. At the government’s request,
the defendant must disclose to the government, in
writing, the information required by (iii) for any testi-
mony that the defendant intends to use under Federal
Rule of Evidence 702, 703, or 705 during the defendant’s
case-in-chief at trial, if:
• the defendant requests disclosure under
(a)(1)(G) and the government complies; or
• the defendant has given notice under Rule
12.2(b) of an intent to present expert testimony on
the defendant’s mental condition.
(ii) Time to Disclose. The court, by order or local
rule, must set a time for the defendant to make the de-
fendant’s disclosures. The time must be sufficiently be-
fore trial to provide a fair opportunity for the govern-
ment to meet the defendant’s evidence.
(iii) Contents of the Disclosure. The disclosure for
each expert witness must contain:
• a complete statement of all opinions that the
defendant will elicit from the witness in the de-
fendant’s case-in-chief;
• 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 ex-
pert at trial or by deposition.
(iv) Information Previously Disclosed. If the defend-
ant previously provided a report under (B) that con-
tained information required by (iii), that information
may be referred to, rather than repeated, in the expert-
witness disclosure.
(v) Signing the Disclosure. The witness must approve
and sign the disclosure, unless the defendant:
• states in the disclosure why the defendant
could not obtain the witness’s signature through
reasonable efforts; or
• has previously provided under (B) a report,
signed by the witness, that contains all the opin-
ions and the bases and reasons for them required
by (iii).
(vi) Supplementing and Correcting a Disclosure. The
defendant must supplement or correct the defendant’s
disclosures in accordance with (c).
(2) Information Not Subject to Disclosure. Except for sci-
entific or medical reports, Rule 16(b)(1) does not authorize dis-
covery or inspection of:
(A) reports, memoranda, or other documents made by
the defendant, or the defendant’s attorney or agent, during
the case’s investigation or defense; or
(B) a statement made to the defendant, or the defend-
ant’s attorney or agent, by:
(i) the defendant;
(ii) a government or defense witness; or
(iii) a prospective government or defense witness.
(c) Continuing Duty to Disclose. A party who discovers addi-
tional evidence or material before or during trial must promptly
disclose its existence to the other party or the court if:
Rule 16.1 FEDERAL RULES OF CRIMINAL PROCEDURE 32
(1) the evidence or material is subject to discovery or inspec-
tion under this rule; and
(2) the other party previously requested, or the court or-
dered, its production.
(d) Regulating Discovery.
(1) Protective and Modifying Orders. At any time the court
may, for good cause, deny, restrict, or defer discovery or in-
spection, or grant other appropriate relief. The court may per-
mit a party to show good cause by a written statement that
the court will inspect ex parte. If relief is granted, the court
must preserve the entire text of the party’s statement under
seal.
(2) Failure to Comply. If a party fails to comply with this
rule, the court may:
(A) order that party to permit the discovery or inspec-
tion; specify its time, place, and manner; and prescribe
other just terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the undisclosed
evidence; or
(D) enter any other order that is just under the circum-
stances.