The Champion

September/October 2010 , Page 20 

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The 'Chief' Problem With Reciprocal Discovery Under Rule 16

By Sara Kropf; Andrew George; William C. Cleveland; Julie Rubenstein

Successfully defending complex white collar criminal cases without the benefit of discovery from the government is impossible. Defending such cases with the benefit of discovery is often not much easier. Even though costly and time-consuming document review can help identify potentially relevant documents lurking in a warehouse full of boxes, there is often no telling which documents the government will actually use to prove its case at trial; that is, which ones will be part of its “case-in-chief.” The Federal Rules of Criminal Procedure do offer defendants token means of pursuing that information. But the rules also exact a high price from defendants who seek any discovery at all, requiring that such defendants provide the government with materials they intend to use in their own cases “in-chief.” Anything not disclosed to the government runs the risk of exclusion from trial.

What documents a defendant must turn over is a problematic question, to be sure.

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