Reminder on Reciprocal Discovery Rule

In United States v. Hardy, ___ F.3d ___ (6th Cir. 2009), the defendant was convicted of twelve counts of bank fraud and five counts of evasion arising out of an embezzlement from her employer. On appeal, the defendant asserted that the court had improperly denied her the right to use evidence in her defense. The circumstances were that the defendant had the evidence but delayed providing it to the Government under the reciprocal discovery rule in FRCrP 16 which gives the district court some discretion in fashioning the remedy for violation of that rule.

The trial judge imposed the most severe trial sanction -- exclusion of the evidence -- because defense counsel had no adequate explanation for the delay in disclosing. The court of appeals, as had the trial judge, made some stern statements -- e.g., "Defendant and her counsel had access to the copies of the check stubs at least one week prior to trial, but wilfully and purposefully chose not to disclose those documents to the government, in clear violation of Fed. R. Crim. P. 16(c)." The court rejected defendant's argument that, until it had a trial subpoena return for the originals, it did not know that it was going to introduce the copies into evidence and therefore had no obligation to turn over the documents. The court responded:

Disclosure under Rule 16 does not depend on the admissibility of the evidence at trial, particularly because decisions on admissibility of evidence are entirely within the province of the court, not the parties, so the parties would not be able to accurately determine prior to trial whether certain evidence would be admissible without a ruling from the court. If the defendant has control over a document, as Defendant did in this case, and plans to use that document in the defendant's case-in-chief, as Defendant attempted to do in this case, and the defendant has already received discovery from the government, then the defendant is required to disclose the document to the government as soon as the defendant learns of it, subject only to the narrow exceptions in Rule 16, none of which is applicable here. Fed. R. Crim. P. 16. Defendant clearly chose not to comply with Rule 16, and thus suffered the consequences provided for in the Rule.

The Court also had some interesting statements which, taken out of the whole context, might be troublesome. For example, quoting an earlier case, the Court said [a]lthough the right of a defendant to present exculpatory evidence is fundamental, it is not absolute." The Court did go through some interests of justice qualification, but the statement itself is a tough one.

The Court ended its discussion with its assessment that the defendant would have been found guilty anyway (the old harmless error dodge). "The government's case against Defendant was overwhelming and at trial Defendant admitted all of the elements of each offense." Even if that were true, I don't know that it justifies making about what the jury would have done had it had all the evidence relevant to a defense.

There may be two casualties in this case -- the client in the case in chief who was convicted if the evidence might have led to acquittal and the lawyer in the aftermath of the case unless the lawyer can prove that the client participated in the decision to violate the reciprocal discovery rule.