Making expert disclosures live up to their name: The amended Rule 16

Takeaway: The substantive amendments to Rule 16 address many of the criticisms of the prior rule, making it a more effective discovery device. 

This December, a significant Amendment to Rule 16 of the Federal Rules of Criminal Procedure goes into effect that enlarges the expert disclosure obligations of both the Government and Defense where invoked. This Amendment accomplishes a significant overhaul of the existing expert disclosure rule and goes a long way to bring the criminal rule more in line with its civil counterpart, clarifying exactly what needs to be disclosed, emphasizing that such disclosure be made within a reasonable time-frame, and requiring that the proffered expert sign the disclosure.

Defense attorneys have long complained that the existing rule allowed the government to flout their expert discovery obligations by providing last-minute, over-broad summaries of testimony the government expected its experts to provide based on testimony given in other cases, often when the expert has not even reviewed the case at bar. By requiring the proffered expert to sign the disclosure, the Amended Rule forces the government to provide substantive notice of an expert’s anticipated testimony from an expert who is now subject to impeachment with the signed disclosure. The signature requirement serves as a powerful enforcement mechanism.

The Amended rule also serves to ensure that the disclosures are substantive and accurate by specifying what must be included in the disclosure, including:

  • 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 testimony 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 expert at trial or by deposition.

These disclosure obligations are ongoing, requiring supplementation where appropriate.

Importantly, the rule also precludes last minute disclosure by stating, “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.” This important addition to the rule serves to preclude trial by surprise. 

Defense counsel must be mindful that if they invoke the government’s disclosure obligation, and the government complies, they too will be subject to the same disclosure obligations under the rule. The time frame for such disclosure will be set by court order or local rule, “sufficiently before trial to provide a fair opportunity for the government to meet the defendant’s evidence.” For this reason, defense counsel might choose not to invoke the rule. However, this newly crafted Rule provides a powerful tool for the defense in the proper case.