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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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