Text of 6/16/01 Letter to Reporter, Criminal Rules Advisory Committee, Requesting a Change in the Federal Criminal Rules to Permit Defendants to Obtain Expert Discovery Comparable to Discovery Available in Federal Civil Actions:
June 16, 2001
Professor David Schlueter, Reporter
...Criminal Rules Advisory Committee
St. Mary's University School of Law
One Camino Santa Maria
San Antonio, Texas 78228-8602
Re: Matter for Criminal Rules Advisory Committee
Dear Prof. Schlueter:
I met Kenneth J. Withers, Research Associate (Federal Judicial Center) on a BNA panel (relating to discovery costs of data processing discovery) and raised with him the problem which I see (as an antitrust litigator, and as someone trying to go through a 28 USC 2255 proceeding for an obviously wrongfully-convicted defendant).
I spend much of my time in civil litigation dealing with experts, and obtaining discovery relating to defendants' experts, including documents upon which their opinions were based, other cases in which they were involved, and pre-trial depositions of the opponents' experts to try to establish matters for use at trial to impeach or disqualify the expert for various reasons.
The problem I see is that this level of discovery guided by adversarial requests (in document requests, interrogatories, requests to admit, and depositions) is not available to persons whose lives or years are on the line as criminal defendants, but is available for civil litigants trying to ward off a $10,000 liability.
I do not understand why the civil rules and practice relating to pre-trial discovery of experts is not granted to defendants.
I believe Rule 16(a)(1)(E) and 16(a)(2) of the criminal rules should be changed to permit the same discovery of experts (see FRE 702, 703, 706) (including government experts) as is permitted under the civil rules and decisions thereunder, and not just limit the defendant as the limitations are set forth in Rule 16(a)(1)(E) / 16(a)(2).
Also, the defendant today should be getting the expert disclosure automatically, without requesting it, to enable the attorney and defendant to see the evidence and evaluate it. I'm sure many cases would have come out differently if full disclosure of this evidence was mandated. The requirement of automatic disclosure would assist counsel who subsequently prepare 2255 motions, to show where the original counsel was derelict. When the original counsel fails to request this expert information, it probably is not obtainable subsequently to help in making a 2255 motion.
Also, there should be no exemption for government-employee experts - see 16(a)(2). Anyway, I thought I would present this to you, for the purpose of trying to offset the huge and growing advantage that the criminal prosecution has, which undoutedly results in the high rate of pleas, and convictions when cases go to trial, and the incarceration and related disenfranchisement of the poor and middle class.
The injustice being permitted by the present criminal rule 16(1)(a)(E) -- from the viewpoint of someone who has litigated under the civil rules for 30 years -- is unconscionable and should be reviewed by your group.
Many thanks for listening to me.
Carl E. Person
Member of the New York Bar
[end of 6/16/01 letter]
Carl E. Person, Director, LawMall, email@example.com