Criminal Justice Standards

Discovery

Fourth Edition (2020) of the ABA STANDARDS FOR CRIMINAL JUSTICE: DISCOVERY

In August 2020, the ABA House of Delegates adopted the black letter of the ABA Standards for Criminal Justice: Discovery, Fourth Edition, to supplant the Third Edition (August 1994) of the ABA Standards for Criminal Justice: Discovery.

Copyright by the American Bar Association. This work (Criminal Justice Standards) may be used for non-profit educational and training purposes and legal reform (legislative, judicial, and executive) without written permission but with a citation to this source.   Some specific Standards can be purchased in book format.

Table of Contents

See the menu on the left side.

PART I.  GENERAL PRINCIPLES

Standard 11-1.1 Definitions

For purposes of these Standards:

(a) Case.  “Case” means the prosecution of the crimes charged, including sentencing, and the investigation leading to those charges.

(b) Defense.  “Defense” includes every defense attorney who has participated in defending the case, members of their legal or investigative staff in the case, and the defendant.

(c) Electronically Stored Information (“ESI”).  “Electronically stored information” (“ESI”) means any information created, recorded, stored, or utilized with digital technology.

(d) Formal charging document.  “Formal charging document” means an information, indictment, or other document on the basis of which a defendant may be tried.

(e) Oral Statement.  An "oral statement" of a person means the substance of any statement of any kind by that person, not reflected in a recorded statement.

(f) Party.  “Party” means the prosecutor, the defense attorney, and the defendant.

(g) Possession or control of the defense.  Something is in the “possession or control of the defense” when it is in the possession of the defense or any other individual or entity that is under the defense attorney’s direction or control.

(h) Possession or control of the prosecution.  Something is in the “possession or control of the prosecution” when it is in the possession of the prosecution, any law enforcement agency that has participated in investigating or prosecuting the case, any other individual or entity that has participated in investigating or prosecuting the case at the direction or request of or by agreement with the prosecution or any law enforcement agency in the case.

(i) Prosecution.  “Prosecution” includes any prosecutors in the case and other members of their legal or investigative staff.

(j) Prosecutor.  “Prosecutor” includes every attorney who has participated in prosecuting the case.

(k) Recorded Statement.  A "recorded statement" of a person includes:

(i) any statement in writing that is made, signed or adopted by that person;

(ii) a stenographic, mechanical, electronic, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by that person; and

(iii) the substance of a statement of any kind made by that person that is embodied or summarized in any writing or recording, whether or not specifically signed or adopted by that person. The term includes statements contained in police or investigative reports, but does not include attorney work product.

(l) The Defense Attorney.  “The defense attorney” includes any defense attorney representing the defendant, and includes the defendant if the defendant is proceeding pro se.

 

Standard 11-1.2     Objectives of these Standards

Objectives of these Standards include:

(a) to promote a fair, accurate, and expeditious disposition of the charges;

(b) to provide the defendant with sufficient information to make an informed plea;

(c) to permit thorough preparation for and minimize unfair surprise at hearings and trial;

(d) to facilitate early identification and resolution prior to trial of any procedural, collateral, or constitutional issues;

(e) to effect economies in time, money, judicial resources, and professional skills by minimizing paperwork, avoiding repetitious assertions of issues, avoiding unnecessary motion practice, and reducing the number of separate hearings;

(f) to reduce interruptions and complications during trial and avoid unnecessary and repetitious trials;

(g) to protect the security of confidential, privileged, or personal information;

(h) to minimize the burden upon and protect the interests of victims, witnesses, and other third parties;

(i) to protect the safety of the community;

(j) to specify remedies for non-compliance that mitigate prejudice while minimizing disruption to the criminal proceeding, and provide that sanctions for non-compliance should be reserved for blameworthy behavior; and

(k) to protect the rights of the defendant.

Standard 11-1.3 Applicability

These Standards should be applied in all criminal cases. Discovery procedures may be more limited in cases involving minor offenses, provided the procedures are sufficient to permit the parties adequately to investigate and prepare the case, and to satisfy constitutional requirements.

 

PART II.  DISCOVERY OBLIGATIONS OF THE PROSECUTION AND DEFENSE

Standard 11-2.1 Prosecutorial disclosure

 

(a) Obligation of the prosecutor to identify and gather information and material.  As soon as practicable, the prosecutor should with reasonable diligence seek to identify and gather all information and material relevant to the case, including information and material described in subsection (c) of this Standard in the possession or control of the prosecution.

(b) Advise on continuing obligation.  The prosecutor should with reasonable diligence advise individuals and entities who may have information and material in the possession or control of the prosecution of their continuing duty to identify, preserve, and disclose to the prosecutor information and material relevant to the case.

(c) The prosecutor’s general obligation to disclose to the defense.  Subject to the limitations in Standard 6.1(a) and any protective orders, and in compliance with the timeframes provided in Standard 11-2.3, the prosecutor should disclose to the defense the following information and material it has identified and gathered pursuant to subsection (a) of this Standard, and permit inspection, copying, testing, and photographing of disclosed documents or tangible objects:

(i) The date, time, and place of the offense(s) with which the defendant is charged.

(ii) All law enforcement records created in the case.

(iii) All recorded and oral statements of the defendant that relate to the case, and all recorded and oral statements of any codefendant that the government intends to introduce at trial or that contain information that is described in subsection xiii of this section, and any documents relating to the acquisition of such statements.

(iv) The names and, if known, information sufficient to contact, all persons having information relating to the case, together with all recorded statements of any such person that relate to the subject matter of the case.

(v) Any tangible objects, including books, papers, documents, photographs, electronically stored information, buildings, or places that were obtained from or belong to the defendant.

(vi) Any additional tangible objects, including books, papers, documents, photographs, electronically stored information, buildings, or places that pertain to the case.

(vii) Any results or reports of tests or examinations of persons or physical evidence made in the case, and all related data, calculations, and documentation created in the case, including chain of custody documents, preliminary test or screening results, bench notes, and underlying raw data produced during testing.  Additionally, where results or reports of tests or examinations of persons or physical evidence are disclosed, the prosecutor should disclose to the defense related documents such as laboratory protocols and manuals, if the defense requests the documents and if the documents are not publicly available. 

(viii) Criminal records, pending charges, or probationary status of the defendant or of any codefendant.

(ix) Any material, documents, or information relating to lineups, showups, picture, voice, or other identification procedures that pertain to the case.

(x) Any information, documents, or other materials relating to any governmental electronic surveillance of the defendant’s person, communications, possessions, activities, or premises, or to legal authorization of the surveillance, that pertains to the case.

(xi) Any information, documents, or other material relating to the acquisition of any tangible object the prosecutor intends to offer at trial that was obtained through a search or seizure.

(xii) Any material, documents, or information relating to

(1) any relationship between the prosecution or law enforcement agents who have participated in the case and any witness the prosecution intends to call that does or reasonably might create bias or the appearance of bias, or

(2) any benefit received by or promised to the witness.

(xiii)  Any material or information that tends to negate the guilt of the accused, mitigate the offense charged or sentence, or impeach the prosecution’s witnesses or evidence.  Where the prosecution provides the defense with voluminous discovery material and the prosecutor is aware that it contains such material or information, the prosecutor should identify that material or information. 

(xiv)  Where the prosecutor provides the defense with voluminous discovery material, as the prosecutor determines that specific material will be used in the prosecution’s case-in-chief the prosecutor should identify that material to the defense.

(d) The prosecutor’s obligation to make pre-hearing disclosures to the defense.  Unless previously disclosed, the prosecutor should disclose to the defense the following information and material for a pre-trial hearing at which evidence or witnesses will be presented:

(i)            Any record of convictions, pending charges, or probationary status known to the prosecution of any witness to be called by the prosecution.

(ii)           All recorded statements of any witness to be called by the prosecution at the hearing that relate to the subject matter of the hearing.

(iii)         Any tangible objects, including books, papers, documents, photographs, electronically stored information, buildings, or places that the prosecution intends to introduce as evidence at the hearing.

(iv)       Any material or information known to the prosecutor to be inconsistent with or impeaching the prosecution’s representations or evidence in the hearing.

(v)          With respect to each person from whom the prosecution intends to elicit expert testimony at the hearing, a curriculum vitae and a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the basis of that opinion.  If the substance of the proposed testimony, the expert’s opinion, and the basis of that opinion are contained in a disclosed expert report, the prosecutor is not required to create a written description.

(vi)         Any results or reports of tests or examinations of persons or physical evidence that the prosecution intends to introduce as evidence at the hearing, and all related data, calculations, and documentation created in the case, including chain of custody documents, preliminary test or screening results, bench notes, and underlying raw data produced during testing.  Additionally, where results or reports of tests or examinations of persons or physical evidence are disclosed, the prosecutor should disclose to the defense related documents such as laboratory protocols and manuals, if the defense requests the documents and if the documents are not publicly available.

(e) The prosecutor’s obligation to make pre-trial disclosures to the defense.  Unless previously disclosed, the prosecutor should disclose to the defense the following additional information and material prior to trial:

(i) A list of persons the prosecution intends to call as witnesses at trial.

(ii) All recorded and oral statements of any jointly tried codefendant.

(iii) Any record of convictions, pending charges, or probationary status known to the prosecution of any witness to be called by either party at trial, to the extent not previously disclosed. 

(iv) With respect to each person from whom the prosecution intends to elicit expert testimony at trial, a curriculum vitae and a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the basis of that opinion, to the extent not previously disclosed under subsections (c) or (d) of this Standard.  If the substance of the proposed testimony, the expert’s opinion, and the basis of that opinion are contained in a disclosed expert report, the prosecutor is not required to create a written description.

(v) A list of exhibits the prosecution intends to offer as evidence or use at trial.

(vi) Notification of the intent to use, and the substance of, any character, reputation, or other-act evidence the prosecution intends to use at trial.

(f)  Specification of basis for charges.  If, following completion of disclosures under subsections (c), (d), and (e) of this Standard, the defense is reasonably unable to determine the factual or legal basis for the charges sufficiently to prepare a defense at trial, the court should, upon a showing by the defense, order the prosecutor to specify further the factual or legal basis for the charges. 

(g) The prosecutor’s obligation to make pre-sentencing disclosures to the defense.  The prosecutor should disclose to the defense the following additional information and material prior to sentencing:

            (i) A list of persons it intends to call as witnesses at sentencing and, to the extent not previously disclosed, information sufficient to contact the witnesses together with all recorded statements of the witnesses that are within the possession or control of the prosecution and that relate to the subject matter of the testimony of the witness.

            (ii) Any record of convictions, pending charges, or probationary status known to the prosecution of any witness to be called by either party at sentencing, to the extent not previously disclosed.

            (iii) Any results or reports of tests or examinations of persons or physical evidence made in the case that the prosecution intends to introduce as evidence at sentencing to the extent not previously disclosed, and all related data, calculations, and documentation created in the case, including chain of custody documents, preliminary test or screening results, bench notes, and underlying raw data produced during testing.  Additionally, where results or reports of tests or examinations of persons or physical evidence are disclosed, the prosecution should disclose to the defense related documents such as laboratory protocols and manuals, if the defense requests the documents and the documents are not publicly available.

(iv) With respect to any person from whom the prosecution intends to elicit expert testimony at sentencing, a curriculum vitae and a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the  basis of that opinion, to the extent not previously disclosed under subsections (c), (d), or (e) of this Standard.  If the substance of the proposed testimony, the expert’s opinion, and the basis of that opinion are contained in a disclosed expert report, the prosecutor is not required to create a written description.

(v) A list of exhibits the prosecution intends to offer as evidence or use at sentencing, and any tangible objects, including books, papers, documents, photographs, electronically stored information, buildings, or places that the prosecution intends to introduce as evidence at sentencing, to the extent not previously disclosed.

(vi)Notification of the intent to use, and the substance of, any character, reputation, or other-act evidence the prosecution intends to use at sentencing.

(vii) Any material or information provided by the prosecution to an individual responsible for conducting a pre-sentence investigation or preparing a pre-sentence report, in connection with that pre-sentence investigation or pre-sentence report. 

 

(h) The prosecutor’s obligation to disclose discoverable third party information and material. If the prosecutor knows that information or material described in subsection (c) of this Standard exists and is in the possession or control of a known third party, and not in the possession or control of the prosecution, the prosecutor should disclose to the defense the existence and location of that information and material.

Standard 11-2.2 Defense disclosure

(a) The defense attorney’s obligation to make pre-hearing disclosures to the prosecution.  The defense attorney should disclose to the prosecution the following additional information and material for a pre-trial hearing in which evidence or witnesses will be presented:

(i) All recorded statements of any witness to be called by the defense at the hearing that relate to the subject matter of the testimony of the witness.

(ii) Any tangible objects, including books, papers, documents, photographs, electronically stored information, buildings, or places that the defense intends to introduce as evidence at the hearing.

(iii) Any results or reports of tests or examinations of persons or physical evidence made in the case, and all related data, calculations, and documentation created in the case, including chain of custody documents, preliminary test or screening results, bench notes, and underlying raw data produced during testing, that the defense intends to introduce as evidence at the hearing.  Additionally, where results or reports of tests or examinations of persons or physical evidence are disclosed, the defense should disclose to the prosecution related documents such as laboratory protocols and manuals, if the prosecution requests the documents and the documents are not publicly available.

(iv) With respect to each expert whom the defense intends to call as a witness at the hearing, the defense should also furnish to the prosecution a curriculum vitae and a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the underlying basis of that opinion.  If the substance of the proposed testimony, the expert’s opinion, and the basis of that opinion are contained in a disclosed expert report, the defense attorney is not required to create a written description.

(b) The defense attorney’s obligation to disclose defenses.  The defense attorney should disclose to the prosecution the following information:

(i) When the defense intends to offer at trial any defense of justification or excuse recognized in the jurisdiction, or any defense recognized in the jurisdiction premised on the mental or physical capacity of the defendant, including:

            (a) Duress;

            (b) Necessity;

            (c) Entrapment;

            (d) Involuntary or voluntary intoxication;

            (e) Insanity;

            (f) Diminished mental capacity;

            (g) Public authority; and

            (h) Defense of self, others, or property

the defense attorney shall provide written notification of that intent, the names of and, if known, information sufficient to contact, witnesses other than the defendant whom the defense intends to call in support of the defenses, and all recorded statements of the witnesses.

(ii) If the defense intends to introduce evidence to prove an alibi, written notification of that intent should include, in addition to the disclosure required by (b)(i), the specific place or places at which the defendant claims to have been at the time of the alleged offense.

(c) The defense attorney’s obligation to make pre-trial disclosures to the prosecution.  The defense attorney should disclose to the prosecutor the following additional information and material and permit inspection, copying, testing, and photographing of disclosed documents and tangible objects prior to trial:

            (i) The names and, if known, information sufficient to contact all witnesses (other than the defendant) whom the defense intends to call at trial and which have not previously been disclosed, together with all recorded statements of any such witness that are within the possession or control of the defense and that relate to the subject matter of the testimony of the witness. Disclosure of the identity and statements of a person who will be called for the sole purpose of impeaching a prosecution witness should not be required until after the prosecution witness has testified at trial.

(ii) Any tangible objects, including books, papers, documents, photographs, electronically stored information, buildings, or places that the defense intends to introduce as evidence at trial.  Disclosure of tangible objects that will be used for the sole purpose of impeaching a prosecution witness should not be required until after the prosecution witness’s direct testimony has concluded.

(iii) Any results or reports of tests or examinations of persons or physical evidence made in the case that the defense intends to introduce as evidence at trial, and all related data, calculations, and documentation created in the case, including chain of custody documents, preliminary test or screening results, bench notes, and underlying raw data produced during testing.  Additionally, where results or reports of tests or examinations of persons or physical evidence are disclosed, the defense should disclose to the prosecution related documents such as laboratory protocols and manuals, if the prosecution requests the documents and the documents are not publicly available.   

(iv) With respect to each expert whom the defense intends to call as a witness at trial, the defense should also furnish to the prosecution a curriculum vitae and a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the underlying basis of that opinion, to the extent not previously disclosed pursuant to Standard 11-2.2(a)(ii).  If the substance of the proposed testimony, the expert’s opinion, and the basis of that opinion are contained in a disclosed expert report, the defense attorney is not required to create a written description.

(v) Notification of the intent to use, and the substance of, any character, reputation, or other-act evidence the defense intends to use at trial, unless the evidence would reveal testimony of the defendant.  Disclosure of character, reputation, or other-act evidence that will be used for the sole purpose of impeaching a prosecution witness should not be required until after the prosecution witness’s direct testimony has concluded.

(vi) A list of exhibits the defense intends to offer as evidence or use at trial.  Disclosure of exhibits that will be used for the sole purpose of impeaching a prosecution witness should not be required until after the prosecution witness has testified at trial.

(d) The defense attorney’s obligation to make pre-sentencing disclosures to the prosecution.  The defense attorney should disclose to the prosecution the following additional information and material prior to sentencing:

            (i) A list of any persons the defense intends to call as witnesses at sentencing and, to the extent not previously disclosed, information sufficient to contact the witnesses together with all recorded statements of the witnesses that are within the possession or control of the defense and that relate to the subject matter of the testimony of the witness.

            (ii) Any results or reports of tests or examinations of persons or physical evidence made in the case that the defense intends to introduce as evidence at sentencing to the extent not previously disclosed, and all related data, calculations, and documentation created in the case, including chain of custody documents, preliminary test or screening results, bench notes, and underlying raw data produced during testing.  Additionally, where results or reports of tests or examinations of persons or physical evidence are disclosed, the defense should disclose to the prosecution related documents such as laboratory protocols and manuals, if the prosecution requests the documents and the documents are not publicly available.

(iii) With respect to each person from whom the defense intends to elicit expert testimony at sentencing, a curriculum vitae and a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the basis of that opinion, to the extent not previously disclosed.  If the substance of the proposed testimony, the expert’s opinion, and the basis of that opinion are contained in a disclosed expert report, the defense attorney is not required to create a written description.

(iv) A list of any exhibits the defense intends to offer as evidence or use at sentencing, and any tangible objects, including books, papers, documents, photographs, electronically stored information, buildings, or places that the defense intends to introduce as evidence at sentencing, to the extent not previously disclosed.

(v) Notification of the intent to use, and the substance of, any character, reputation, or other-act evidence the defense intends to use at sentencing.

(vi) Any material or information provided by the defense to an individual responsible for conducting a pre-sentence investigation or preparing a pre-sentence report, in connection with that pre-sentence investigation or pre-sentence report. 

 Standard 11-2.3 Timing of discovery

(a) Discovery initiation and time limits.  Discovery should be initiated as early as practicable.  Each jurisdiction should adopt time limits within which discovery should be performed at each stage of a criminal case.  

(b) Motion to change timing of disclosure. Upon motion by either party, if the court finds that there is good cause to extend or shorten any specified time limits, the court should enter an order doing so.  The court’s order should consider any agreements made as described in Standard 3.1.  However, in all cases, disclosures should be made in sufficient time for each party to use the disclosed information to adequately prepare for hearings, the entry of a plea, trial, or sentencing.

(c) Disclosure in stages for pre-trial, trial, and post-trial use.  Unless the court otherwise orders, disclosure should occur within the following time frames. 

            (i) Disclosure of information to the defense.  Notwithstanding other timing provisions, the prosecutor should disclose to the defense information that tends to negate the guilt of the accused, mitigate the offense charged or sentence as soon as practicable after the items have been identified and gathered.

(ii) Disclosure at first appearance.  At the first appearance before a judicial officer where a prosecutor is present, the prosecutor should disclose information and material relating to the release determination that are in the prosecutor’s possession.  If a plea occurs at first appearance the prosecutor should make the disclosures described in subsection (ix) of this Standard.

            (iii) Prosecution general disclosure.  Within [14 days] of the filing of the formal charging document, the prosecutor should disclose to the defense all items listed in Standard 11-2.1(c).  However, if the defendant is in custody, such disclosure should occur within [28 days] of the custody determination or [14] days of filing of the formal charging document, whichever is sooner.

            (iv) Defense disclosure of defenses.  Within [21 days] of the prosecutor’s disclosure under subsection (c)(iii), the defense attorney should disclose to the prosecutor all items listed in Standard 11-2.2(b).   

(v) Prosecution responsive disclosure.  Within [14 days] of the defense’s disclosure under subsection (iv) of this Standard, the prosecutor should disclose any previously undisclosed information or material the prosecution intends to use, or witnesses it intends to call, all recorded statements of the witnesses, and, if known, information sufficient to contact those witnesses, to respond to defenses disclosed.

            (vi) Prosecution and defense pre-hearing disclosure. As soon as practicable after a pre-trial hearing is ordered, the party bearing the initial burden at the hearing should disclose to the opposing party all items listed in Standard 11-2.1(d) or 11-2.2(d) to the extent not previously disclosed.  As soon as practicable but in all cases prior to the hearing, the opposing party should disclose all items listed in Standard 11-2.1(d) or 11-2.2(a) to the extent not previously disclosed.

(vii) Prosecution pre-trial disclosure.  No later than [21 days] prior to trial, the prosecutor should disclose to the defense all items listed in Standard 11-2.1(e).

            (viii) Defense pre-trial disclosure.  Within [7 days] of the prosecution’s disclosure under Standard 11-2.3(c)(vii), the defense attorney should disclose to the prosecutor all items listed in Standard 11-2.2(c).

            (ix) Prosecution disclosure before plea.  Prior to the entry of a guilty plea, the prosecutor should disclose to the defense information or material sufficient to support the charges in the proposed agreement, and information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense charged or sentence.

            (x) Sentencing disclosure.  Prior to sentencing, the prosecutor should disclose to the defense all previously undisclosed items listed in Standard 11-2.2(g). Following the prosecutor’s disclosure and prior to sentencing, the defense attorney should disclose to the prosecutor all previously undisclosed items listed in Standard 11-2.3(d) that are relevant to sentencing.

Standard 11-2.4 The person of the defendant

 (a) After first appearance and upon motion by the prosecutor, with reasonable notice and opportunity to be heard to the defense, the court should, upon an appropriate showing, order the defendant to appear for the following purposes:

(i) to permit the taking of fingerprints, photographs, handwriting exemplars, or voice exemplars from the defendant;

(ii) to permit the taking of specimens of blood, urine, saliva, breath, hair, nails, or other materials of the body of the defendant;

(iii) for the purpose of having the defendant appear, move, or speak for identification in a lineup or try on clothing or other articles;

(iv) to submit to a reasonable physical or medical inspection of the body;

(v) to submit to a reasonable mental health examination; or

(vi) to participate in other reasonable and appropriate procedures.

(b) The motion and order pursuant to subsection (a) should specify the following information where appropriate: the authorized procedure, the scope of the defendant’s participation, and the scope, if any, of defense counsel’s participation, the name or job title of the person who is to conduct the procedure, and the time, duration, place, and other conditions under which the procedure is to be conducted.

(c) The court should issue the order sought pursuant to subsection (a) above if it finds that:

(i) the procedure specified may produce evidence that is material to the determination of the issues in the case;

(ii) the procedure is reasonable and will be conducted in a manner which does not involve an unreasonable intrusion of the body or an unreasonable affront to the dignity of the defendant; and

(iii) the request is reasonable and comports with applicable law.

Standard 11-2.5.  Additional disclosure upon motion       

The court in its discretion may, upon motion, require disclosure to the prosecution or defense of information or material related to the case but not specified in Standard 11-2.1 or 11-2.2, on a showing by the requesting party that the request is reasonable.

Standard 11-2.6 Continuing obligation to disclose

Each party has a continuing obligation to produce discoverable material to the other side. 

(a) If counsel discovers additional information or material that is subject to disclosure subsequent to the date when that disclosure was due, it should promptly notify opposing counsel of the existence of, and should promptly disclose, the additional information or material. 

(b) If counsel discovers that information or material that is subject to disclosure has been destroyed, lost, or otherwise have become unavailable before disclosure was made, it should promptly notify opposing counsel of the destruction, loss, or unavailability.  Nothing in this Standard requires disclosure that would violate state or federal constitutions or ethical rules. 

Standard 11-2.7. Disclosure of intended use inadmissible

The fact that a party has disclosed an intention to offer a specified defense or evidence or to call a specified witness should not be admissible against that party in any civil or criminal case.

PART III.  SPECIAL DISCOVERY PROCEDURES

Standard 11-3.1 Counsel should confer regarding substantial, complex, or non-routine discovery

In cases involving substantial, complex, or non-routine discovery, counsel should meet and confer about the nature, volume, and procedures for producing discovery. After conferring, counsel should notify the court of discovery production issues or problems that they reasonably anticipate will significantly affect the case.

Standard 11-3.2 Procedures for Electronically Stored Information

(a)        Definitions. For purposes of this Standard:                

(i) “ESI discovery” is Electronically Stored Information (“ESI”) that is discoverable.

            (ii) “Format“ is the structure of a file that defines the manner in which data is created, used or saved within a digital file.

            (iii) “Media“ are devices used to store and transmit electronically stored information, including CDs, DVDs, USB storage devices, and hard drives.

(iv) “Process” or “processing“ is any action taken to convert the format of, or otherwise alter a native file.  For purposes of this definition, “native file” is a digital file in its native format, including metadata, “native format” is the original format in which a digital file is created by a software application, and “metadata” is structured, system-generated data that provides information about the digital file.

(b)        Objectives of procedures for ESI discovery. In addition to the objectives listed in Standard 11-1.2, objectives of procedures for ESI discovery include:

            (i) To realize the benefits of ESI in discovery;

            (ii) To reduce unnecessary conflict and litigation over ESI;  

(iii) To avoid unnecessary duplication of time and expense for the parties in the handling and using of ESI;

(iv) To protect a producing party from an unreasonable expenditure of resources, beyond expenditure for its own case preparation, in processing ESI;

(v) To ensure the reasonable usability of ESI;

(vi) To ensure the reasonable integrity of ESI;

(vii) To prevent unauthorized or unlawful dissemination of ESI that is confidential, private, privileged, or sensitive;

(viii) To avoid unnecessary burdens on third parties.

(c)        Format of discovery. 

(i) A party should where practicable, and subject to subsections (c)(ii), (iii), and (iv), and subsection (e) of this Standard, select a reasonably usable format for production.

(ii) ESI received from third parties should ordinarily be produced in the format in which it was received.

(iii) ESI from the prosecution’s or defense’s records should ordinarily be produced in the format in which it was maintained.

(iv) Where a producing party elects to process ESI, including processing to create a more usable format, the results of that processing should, unless it constitutes information or material that may be withheld under Standard 11-6.1, be produced in discovery along with the underlying ESI. 

(d)        Transmitting discovery.  The party producing ESI discovery should provide the receiving party with a general description of what is being transmitted, and should maintain a record of what was transmitted. Any media should be labeled to identify, at least, the case name and number, the producing party, a general description of what the media contain, and a production date.

(e)        No unreasonable extra cost, time, or burden.  When producing ESI discovery, a party should not be required to take on unreasonable additional processing costs, time, or burden beyond what the party has already incurred or will incur for its own case preparation or discovery production.

(f)         Informal resolution of ESI discovery issues.  Before filing any motion addressing an ESI discovery issue, the moving party should confer with opposing counsel as described in Standard 11-4.3.  If resolution of the dispute requires technical knowledge beyond what the parties possess, the parties should involve individuals with sufficient knowledge to understand the technical issues. 

(g)        Security.  The parties should be mindful that ESI raises special security concerns because of its volume and ease of dissemination.  Dissemination of ESI discovery should be limited to the parties and individuals necessary to the case.  The parties should take reasonable measures to secure ESI against unauthorized access or disclosure. If ESI potentially includes confidential, private, or sensitive information, the parties should enter into an agreement to protect the ESI.  Absent agreement, the producing party should seek a protective order from the court before producing the ESI.  Any agreement or protective order should specify steps for handling confidential, private, or sensitive ESI materials after the matter has concluded.

(h)       Substantial or complex ESI discovery. 

(i) As soon as practicable after the start of discovery in a case involving substantial or complex ESI , the parties should confer about the nature, volume, and procedures for producing ESI.  The parties should discuss the following matters:

                        (1) What types of ESI exist;

(2) Formats of production and the need, if any, for preservation of data and formats;

                        (3) Transmission methods;

(4) Confidentiality and security of ESI; and

(5) Any other issues identified by the parties.

(ii) After they confer, the parties should notify the court of unresolved issues concerning ESI.

(iii) The parties should involve individuals with sufficient technical knowledge regarding ESI as needed in the discovery process

(iv) If a party disclosing substantial ESI has created an organizing tool such as a table of contents or index for the ESI, the party should disclose the organizing tool unless it constitutes information or material that may be withheld under Standard 11-6.1. 

Standard 11-3.3 Obtaining nontestimonial information from a third party

(a) A party seeking information or material in the possession or control of a third party should, when practicable, make a good faith effort to obtain the information or material from the third party voluntarily. 

(b) If information or material in control of a third party cannot be obtained voluntarily, either party may move the court for compulsory process.  Upon motion by either party, if the court finds that there is good cause to believe that the information or material sought may be material to the determination of the issues in the case, the court should, in advance of trial, issue compulsory process for the following purposes:

(i) To obtain documents and other tangible objects in the possession of a third party.

(ii) To allow the entry upon property owned or controlled by a third party. Such process should be issued if the court finds that the party requesting entry has met the applicable legal standard.

(iii) To obtain from a third party fingerprints, photographs, handwriting exemplars, or voice exemplars, or to compel a third party to appear, move or speak for identification in a lineup, to try on clothing or other articles, to permit the taking of specimens of blood, urine, saliva, breath, hair, nails, or other materials of the body, to submit to a reasonable physical or medical inspection of the body, or to participate in other reasonable and appropriate procedures. Such process should be issued if the court finds that:

(1) the procedure is reasonable and will be conducted in a manner which does not involve an unreasonable intrusion of the body or an unreasonable affront to the dignity of the individual; and

(2) the request is reasonable and comports with applicable law.

(c) The motion and the order should specify the following information where appropriate: the authorized procedure; the scope of participation of the third party; the name or job title of the person who is to conduct the procedure; and the time, duration, place and other conditions under which the procedure is to be conducted.

(d) The court should be sensitive to the interests of third parties in issuing compulsory process.  A person whose interests would be affected by the compulsory process sought should have the right and a reasonable opportunity to move to quash or modify the order on the ground that compliance would subject the person to an undue burden, or would require that disclosure of material that is privileged, personal, confidential, otherwise protected from disclosure, or would otherwise be unreasonable. 

Standard 11-3.3 Testing or evaluation by experts and preservation of evidence

(a) Upon motion, either party should be permitted to conduct evaluations or tests of physical evidence in the possession or control of the other party which is subject to disclosure. The motion should specify the nature of the test or evaluation to be conducted, the names and qualifications of the experts designated to conduct evaluations or tests, and the material upon which such tests will be conducted. The court may make such orders as are necessary to make the material to be tested or examined available to the designated expert.

(b) Where feasible, the court should condition an order under subpart (a) so as to preserve the integrity of the material to be tested or evaluated.

(c) If the material on which evaluations or tests is requested is contraband material or a controlled substance, the entity having custody of the material may elect to have a representative present during the testing of the material.

 (d) If either party intends to destroy or transfer out of its possession any objects or information otherwise discoverable under these standards, the party should give notice to the other party sufficiently in advance to afford that party an opportunity to object or take other appropriate action.

 

PART IV.  MANNER OF CONDUCTING DISCOVERY

Standard 11-4.1 Manner of performing disclosure

Disclosure may be accomplished in any manner mutually agreeable to the parties. Absent agreement, counsel for the party having the burden of production should:

(a) notify opposing counsel that material and information, described in general terms, may be disclosed, received, inspected, obtained, tested, copied, or photographed during specified reasonable times; and

(b) make available to opposing counsel at the time specified such material and information and suitable facilities or other arrangements for disclosure, receipt, inspection, testing, copying, and photographing of such material and information.

Standard 11-4.2 Motion concerning the manner or place of production.

When, after conferring with opposing as described in Standard 11-4.3, a dispute concerning the manner of place of production, or any other arrangements for disclosing, receiving, inspecting, testing, copying, or photographing material and information has not been resolved between the parties, either party may make a motion seeking an order determining those discovery arrangements.

Standard 11-4.3  Informal resolution of discovery requests or disputes

Before filing any motion addressing a request or dispute, the moving party should confer with opposing counsel in a good-faith effort to resolve the request or dispute.   Any motion addressing a discovery request or dispute should include a statement of counsel for the moving party relating that after consultation with the attorney for the opposing party the parties have been unable to resolve the request or dispute without court action.

Standard 11-4.4 Investigations not to be impeded

Attorneys for the parties and their staff should not advise persons (other than the defendant) who have relevant information or material to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor should they otherwise impede opposing counsel’s investigation of the case.

 

PART V.  DEPOSITIONS

Standard 11-5.1 Depositions necessary to preserve testimony

(a) Witnesses should testify in person at a hearing or trial whenever possible.  After an indictment or information is filed, upon motion of either party, the court should order a deposition taken to preserve the testimony of a prospective witness other than the defendant, if the court finds that there is a substantial likelihood that the witness will be unavailable to testify and that it is necessary in the interest of justice to take the witness’s deposition.

(b) In the order for the deposition, the court may also require that any tangible objects, including books, papers, documents, photographs, or electronically stored information, not privileged, be produced by the deponent at the time and place of the deposition.

(c) The court should make provision for the defendant to be present at the taking of the deposition and should make such other provisions as are necessary to preserve the rights of the defendant, including the defendant’s right to confront witnesses and right to counsel.

(d) A deposition so taken and any evidentiary material produced at such deposition may later be introduced in evidence, subject to applicable rules of evidence. However, no deposition taken under this section should be used or read in evidence when the attendance of the deposed witness can be procured, except for the purpose of impeaching the testimony of the deponent.

(e) Depositions under this Standard should be taken before a judicial officer under oath, transcribed, preserved by video recording or if that is impracticable by audio recording, and conducted in accordance with such other rules for criminal depositions as a jurisdiction or the judge in the case may impose.

Standard 11-5.2 Depositions necessary to prevent unjust surprise at trial

(a) After an indictment or information is filed, upon motion of either party, the court should order the taking of a deposition upon oral examination of any person other than the defendant, concerning information relevant to the offense charged, but only on a substantial showing that:

(i) the name of the person sought to be deposed has been disclosed to the movant by the opposing party through the exchange of names of witnesses or has been discovered during the movant’s investigation of the case;

(ii) other information or materials disclosed to the movant in discovery do not summarize the relevant knowledge of the person to an extent adequate to prevent surprise at trial;

(iii) the person proposed to be deposed has refused to cooperate in giving a voluntary statement, despite reasonable efforts by the moving party; and

(iv) the taking of a deposition is necessary in the interest of justice.

(b) In determining whether to order the taking of a deposition under this Standard, the court should be sensitive to the interests of the person sought to be deposed. 

(c) The order issued pursuant to subsection (a) should limit the scope of the deposition to information necessary to avoid unjust surprise at trial.

(d) The defendant may be present at the deposition unless the court orders otherwise for good cause shown.

(e) A deposition under this Standard should be admissible at a trial or hearing only for the purpose of contradicting or impeaching the testimony of the deponent as a witness, unless otherwise stipulated by the parties, ordered by the court, or admissible under governing rules of evidence.

(f) Depositions under this Standard should be taken before a judicial officer under oath, transcribed, and conducted in accordance with such other rules for criminal depositions as a jurisdiction or the judge in the case may impose.

Standard 11-5.3  Deponent opportunity to quash

A person whose deposition is sought under this Part should have the right to move to quash on the ground that compliance would subject the person to an undue burden, would require the disclosure of material that is privileged, confidential, personal, or otherwise protected from disclosure, or would otherwise be unreasonable.

Standard 11-5.4  Deposition procedures

Depositions under this Part should be taken before a judicial officer under oath, transcribed, and conducted in accordance with such other rules for criminal depositions as a jurisdiction or the judge in the case may impose.  Depositions taken under Standard 11-5.2 should also be preserved by video and audio recording unless impracticable.

 

PART VI.  LIMITATIONS ON DISCLOSURE

Standard 11-6.1 Automatic limitations

(a) A party may withhold the following information and material from disclosure under these Standards, unless the party whose obligation it is to disclose intends to offer the information and material at a hearing or trial:

i. Legal research, records, correspondence, reports, or memoranda made by the prosecutor or any defense attorney in the case, or members of their legal or investigative staff, to the extent that they contain the opinions, theories, or conclusions of the prosecutor, the defense attorney, or members of those attorneys’ legal or investigative staff;

ii. Personal identifying information of witnesses or victims except information sufficient to contact a witness as required by Standards 11-2.1(c) and 11-2.2(b), (c), and (d);

iii. Any information or material that is protected from disclosure by the state or federal constitutions, statutes, or other law; and

iv. The identity of a witness who provided information to the government in the case under a promise of confidentiality, and whose identity has been kept confidential.

(b) If a party withholds information or material from disclosure on the basis of 11-6.1(a)(iii) or (iv), counsel for the party should disclose to opposing counsel the category of information or material that is withheld, and the basis for the withholding.

(c) Nothing in this Standard permits the withholding of information or material required to be disclosed under other laws or where withholding will infringe the rights of the defendant.

(d) Nothing in this Standard prohibits a party from voluntarily disclosing information or material that is not subject to disclosure under these Standards, if such disclosure is otherwise permitted by law.

Standard 11-6.2 Protective orders. 

(a) Upon motion of a party, or of any affected person, or on its own motion, and, except as provided below in subsection (d), after the opportunity for any non-moving party or affected person to be heard, the court may order that information or material otherwise subject to disclosure under these Standards be deferred, conditioned upon compliance with protective measures, or withheld, or make such other protective order as is appropriate. 

(b) Before issuing a protective order under subsection (a), the court should balance the potential harm of disclosure to any person or entity against the potential prejudice that the proposed protective order would cause to a party or affected person.  The court should issue a protective order only if the potential harm of disclosure is greater than the prejudice caused by the proposed protection, and should impose only those restrictions that are reasonable and necessary in relation to an articulated harm.

(c) Any showing under subsection (b) should, where feasible, be preserved in the record.  The court may permit any evidentiary showing for a protective order, or any portion of such showing, to be made in camera (i.e., not in open court) or under seal.

(d) Upon request of a party, the court may permit any showing for a protective order to be made ex parte (i.e., without the other party present or served with the material supporting the showing in whole or in part), but only on a showing that such a procedure is necessary to fulfill the purpose of the requested limitation on discovery.  A record should be made of an ex parte proceeding, and upon the entry of an order granting relief following an ex parte showing, all confidential portions of the record should be sealed, preserved in the records of the court, and made available to the appellate court in the event of an appeal.

Standard 11-6.3 Redaction

Even if parts of material or information are not subject to disclosure under these Standards, the parts subject to disclosure should be disclosed. The disclosing party should notify the opposing party that parts have been redacted, and those parts should be sealed, preserved in the records of the court, and made available to the appellate court in the event of an appeal.  A redacting party should redact parts not subject to disclosure in a way that does not cause confusion to the opposing party, and if the basis for the redaction is not clear the redacting party should communicate the basis to the opposing party.

Standard 11-6.4 Use of materials

Any materials furnished to an attorney pursuant to these Standards, unless publicly disclosed at a hearing or trial, should be used only for the purposes of performing the attorney’s professional obligations or for such other purposes as the parties agree or the court orders, and should be subject to such other terms and conditions as the court may provide.

 

PART VII.NON-COMPLIANCE AND REMEDIES

Standard 11-7.1 Objectives of discovery remedies

Objectives of remedies for failure to comply with an applicable discovery obligation include:

(a)  Ensuring prompt and full compliance with discovery obligations;

(b)  Mitigating prejudice to a party, victim, witnesses, or the administration of justice;

(c)   Minimizing disruption to the case and criminal proceeding; and

(d)  Avoiding or remedying infringement of the rights of the defendant.

Standard 11-7.2 Motion to determine compliance

After conferring with opposing counsel as described in Standard 11-4.3, either party may move for a determination from the court that the opposing party’s withholding, redaction, or other limitation on disclosure is in violation of an applicable discovery obligation.

Standard 11-7.3 Available remedies

If a party fails to comply with a discovery obligation, the court should take such action as the interest of justice in the case requires.  Any action taken should be preserved in the record of the proceedings.  Remedies may include:

(a) cautioning the party that failed to comply;

(b) ordering compliance with the rule or order;

(c) ordering additional discovery;

(d) granting a continuance;

(e) reconsidering a pretrial detention decision;

(f) permitting a party to call or recall a witness;

(g) providing a curative instruction to the jury;

(h) prohibiting the party from calling a witness or introducing evidence;

(i) declaring a mistrial; or

(j) dismissing the charge with or without prejudice.

Standard 11-7.4 Considerations in selecting remedies

(a) Prior to ordering a remedy for failure to comply with an applicable discovery obligation, the court should consider:

(i)    the effect of the failure to comply on the opposing party or the administration of justice;

(ii)   the reason(s) for the failure to comply;

(iii) the potential for additional failures to comply by the same party in the case;

(iv) the feasibility of mitigating prejudice caused by the failure to comply;

(v)  prejudice to the interests of the parties, victims, witnesses, or others from a particular remedy; and

(vi) any other relevant circumstances.

(b) The court should select the least severe remedy sufficient to accomplish the objectives of this Part.

 

PART VIII  SANCTIONS FOR NON-COMPLIANCE

 

Standard 11-8.1 Objectives of discovery sanctions

Objectives of sanctions for failure to comply with applicable discovery obligations are:

(a)  Punishing blameworthy disregard of discovery obligations; and

(b)  Deterring disregard of discovery obligations.

Standard 11-8.2 Imposing sanctions on individuals

After notice and an opportunity for any non-moving party or affected person to be heard, the court may, consistent with its jurisdiction and authority under law, subject an individual responsible for a violation of a discovery obligation in the case to appropriate sanctions upon a finding on the record that the violation was intentional, knowing, or reckless.  No sanction should be imposed for an attorney’s failure to disclose information or material in the custody of another individual or entity if the attorney has diligently sought to identify and gather the information or material, and has diligently advised the individual or entity of the continuing duty to identify, preserve, and disclose discoverable information and material.

 

Standard 11-8.3 Imposing sanctions on entities

After notice and an opportunity for any non-moving party or affected person to be heard, the court may, consistent with its jurisdiction and authority under law, subject an office or other entity to appropriate sanctions upon a finding on the record that an entity’s policy, custom, or pattern of practice, including the entity’s failure to supervise or train, caused a failure to comply with a discovery obligation in the case.

Standard 11-8.4 Sanctions Not to Disrupt Criminal Proceeding

(a) The court should avoid disruption of the case in considering or imposing sanctions.

(b) The court should ordinarily delay considering and imposing sanctions until the conclusion of the case. 

Standard 11-8.5 Considerations in Selecting Sanctions

(a) In addition to the requirements of Standard 11-8.2 and 11-8.3, in deciding whether to order a sanction and selecting a sanction for failure to comply with an applicable discovery obligation, the court should consider:

(i) the reason(s) for the failure to comply;

(ii) the effect of the failure to comply on the opposing party or the administration of justice;

(iii) other incidents of failure to comply by the same individual or entity in the case or in other cases;

(iv) the rights of the individual or entity; and

(v) any other relevant circumstances.

(b) The court should select the least severe sanction sufficient to accomplish the objectives of this Part. 

Return to the home page of the Criminal Justice Standards