Federal Judicial Center -- 2004
Go to Federal Manuals Table of Contents - Go to Resource Guide Table of Contents

        E      Discovery Issues
        E-1  Mental Examination of Defendant by Government Expert
        E-2  Provision of Juror and Witness Information

According to the Federal Death Penalty Resource Counsel, discovery in capital cases tends to occur earlier and to be broader than discovery in non-capital cases. Federal Death Penalty Resource Counsel, Federal Death Penalty Update (March 1998) at 9. In at least one case, United States v. Rosado-Rosario, Crim. No. 97-049, 1998 U.S. Dist. LEXIS 673 (D.P.R. Jan. 15, 1998), the court has required very early disclosure of information by the government to enable the defense to prepare for its presentation to the Department of Justice’s Capital Case Review Committee, although this has not been a routine practice.

Certain issues relating to discovery tend to arise with some frequency in capital cases. For example, because the mental state of a defendant is frequently an issue at the guilt or penalty phase, government requests for a mental examination of the defendant are common. In addition, under the statutes governing death-penalty cases, the defendant must be provided with a list of jurors and witnesses prior to trial.

E-1    Mental Examination of Defendant by Government Expert

Federal Rule of Criminal Procedure 12.2(b)(2), as amended effective December 2002, provides that a capital defendant must notify an attorney for the government, prior to trial, of his intention to present expert evidence regarding his mental condition during the sentencing phase of the case. [Footnote 13] The defendant must also file a copy of this notice with the clerk of court. The deadline for filing such notice is the time set for pretrial motions (or at least for pretrial motions directed at the death penalty after the government has filed its death penalty notice), or at any later time set by the court. For good cause, the court may allow a defendant to file this notice late, grant additional trial preparation time, or make other appropriate orders. Fed. R. Crim. P. 12.2(b). The rule does not require pretrial disclosure of the defendant’s expert evidence, but only notice of his intent to offer such evidence.

Upon receiving such notice, the government will normally move for an order requiring that the defendant submit to a mental health examination by a government expert, and, under Rule 12.2(c)(1)(B), upon the government’s request the court "may" issue such an order. Rule 12.2(c)(2), as amended in December 2002, provides that the results of this examination should be sealed until the guilt phase has been completed and the defendant has confirmed an intent to offer expert mental health evidence at the sentencing phase. Some judges had already employed this practice prior to the rule revision as a way of protecting the defendant from potentially self-incriminating statements made during the court-ordered examination. [Footnote 14] Once the defendant has confirmed that he intends to use the mental health evidence at sentencing, however, the rule recognizes that the government should be given access to the examination results so that it can prepare to rebut defendant’s evidence at the sentencing hearing. In addition, after the results and reports of the government expert’s examination have been disclosed, the defendant must disclose the results and reports of examinations conducted by his own expert about which the defendant intends to introduce mental health evidence. Rule 12.2(c)(3). As further protection of the defendant’s right not to self-incriminate, Rule 12.2(c)(4) bars the introduction against the defendant at the sentencing hearing of any statement made by the defendant in the course of a mental examination ordered under the rule, any expert testimony based on such statement, and any other fruits of the statement unless the defendant has first introduced expert evidence on mental condition at the capital sentencing hearing.

If the defendant fails to provide notice under Rule 12.2(b) or does not submit to a court-ordered examination under Rule 12.2(c), the court "may" exclude any expert evidence from the defendant regarding mental condition at the capital sentencing hearing. Fed. R. Crim. P. 12.2(d). The Committee Comments to Rule 12.2(d) note that, although the rule permits a judge to exclude defendant’s expert evidence in this situation, before doing so he or she should consider the effectiveness of sanctions short of preclusion, the impact of preclusion, the extent of prosecutorial surprise or prejudice, and the willfulness of the violation.

E-2    Provision of Juror and Witness Information

Pursuant to 18 USC 3432, the defendant in a capital case, at least three days prior to trial, "shall be furnished" with a list of jury panel members and of the witnesses the government intends to produce at trial. The place of abode of each jury panel member and witness must also be provided, unless the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person.

In some cases, this list has been provided more than three days before trial. For example, in United States v. Chandler, 996 F.2d 1073, 1098–99 (11th Cir. 1993), the witness list and addresses were provided two weeks prior to trial.

FOOTNOTES:

13     Other provisions of Rule 12.2 relate to the defendant’s use of an insanity defense or expert evidence regarding mental condition in the guilt phase, but these are not unique to capital cases and thus are not discussed in detail here.

14    E.g., United States v. Beckford, 962 F. Supp. 748 (E.D. Va. 1997); United States v. Haworth, 942 F. Supp. 1406 (D.N.M. 1996); United States v. Vest, 905 F. Supp. 651 (W.D. Mo. 1995).