7/1/01 Letter to U.S. Senator Leahy Requesting Change in Federal Criminal Rules Concerning Expert Discovery

First Published 8/7/01 - Last Update: 8/7/01 17:15

Relevant Text of 7/1/01 Letter to U.S. Senator Leahy Requesting a Change in the Federal Criminal Rules to Permit Criminal Defendants to Obtain Expert Discovery Comparable to Discovery Available in Federal Civil Actions:


Carl E. Person

Attorney at Law

325 W. 45th St. - Suite 201

New York NY 10036-3803

(212) 307-4444

Fax (212) 307-0247


July 1, 2001

Senator Patrick Leahy, D-VT

Chairman, Senate Judiciary Committee

226 Dirksen Senate Office Building

Washington, DC 20510

Re: An Omitted Area - A Criminal Defendant's Right to Pre-Trial Discovery of the Prosecution's Expert Witnesses

Dear Senator Leahy:

Your Senate Judiciary Commitee hearing on Due Process and the Death Penalty (C-Span 7/1/01) was one of the best I've seen.

I am a plaintiff's attorney in antitrust litigation, and recently got involved in a federal criminal proceeding, preparing a 2,500-page habeas corpus (28 U.S. Section 2255) petition for a defendant convicted of mail fraud and mail forgery.

* * *

The federal prosecution allegedly committed serious abuses and misconduct (allegedly described in my website on prosecutorial abuse at www.lawmall.com/abuse as well as in the attached reply memorandum); and the criminal trial attorney allegedly rendered wholly ineffective assistance of counsel (see the attached 2255 reply memorandum).

The problems concerning unjust and unlawful prosecutions exist throughout the federal (and presumably state) prosecutorial system and should be addressed as well.

A copy of the defendant's reply memorandum in further support of his 2255 petition is attached in HTML form, which outlines the unbelievable alleged abuse, misconduct and ineffective assistance of counsel which resulted in the defendant's unlawful conviction.

More importantly for your Committee's present purposes, you should know that the Federal Rules of Criminal Procedure [particularly FRCrP 16(a)(1)(E), 16(a)(2) and 18 USC 3500 - set forth in full text below] do not provide the defendant with expert pre-trial discovery which the Federal Rules of Civil Procedure provide in civil cases, involving merely money. Thus, when a criminal defendant runs the risk of losing his life or his liberty for a lifetime or less, he/she is not permitted to obtain pretrial depositions and documents to help understand the future trial testimony of the prosecution's expert witnesses (needed for obtaining rebuttal expert reports and for purposes of cross examination during trial), and is at a major disadvantage in cases involving expert testimony (which cases are expanding with technological expansion).

The prosecution, however, can obtain all it wants from various non-defendant witnesses and the defendant himself through the subpoena process. At a minimum, the federal criminal rules relating to discovery of expert witnesses should be as available to a criminal defendant as to a civil plaintiff or defendant. This presently constitutes a major advantage of the federal prosecutor which undoubtedly contributes to the 95% plea rate in federal criminal cases.

Why bother to try a case when the odds (caused by unjust rules written when expert testimony was not so prevalent) are overwhelmingly against you?

Expert witnesses tend to be known and hired as prosecutorial experts, or by defendants as defendants' experts, and both sides should be able to obtain discovery on the prior reports and testimony of the experts chosen to given his/her opinion, for a large fee, in matters of life and liberty, as well as money, to expose the bias inherent in selling one's services to the same prosecutors in case after case. The unfairness to criminal defendants of the present discriminatory system is manifest.

Very truly yours,

Carl E. Person

Plaintiff's Antitrust Attorney

c.v. at www.lawmall.com\files\res_cep3.html

Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure:

(E) Expert witnesses. At the defendant's request, the government shall disclose to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b)(1)(C)(ii) of this rule and the defendant complies, the government shall, at the defendant's request, disclose to the defendant a written summary of testimony the government intends to use under Rules 702, 703, or 705 as evidence at trial on the issue of the defendant's mental condition. The summary provided under this subdivision shall describe the witnesses' opinions, the bases and the reasons for those opinions, and the witnesses' qualifications.

Rule 16(a)(2) of the Federal Rules of Criminal Procedure:

(2) Information not subject to disclosure. Except as provided in paragraphs (A), (B), (D), and (E) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by the attorney for the government or any other government agent investigating or prosecuting the case. Nor does the rule authorize the discovery or inspection of statements made by government witnesses or prospective government witnesses except as provided in 18 U.S.C. Section 3500.

18 U.S.C. Section 3500 provides in relevant part:

Section 3500. Demands for production of statements and reports of witnesses

(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

[end of 7/1/01 letter to Sen. Leahy]

Carl E. Person, Director, LawMall, carlpers@ix.netcom.com
For the c.v. (resume) of Carl E. Person, click on Carl E. Person C.V.

Criminal Law Reform Website Copyright 2001 by Carl E. Person