Federal Rule of Criminal Procedure 16(b) imposes discovery requirements on the defense which are triggered when the government complies with its own, initial disclosure obligations. Some defense counsel treat the reciprocal obligation as more or less voluntary, betting that they will be spared the district court’s wrath and will avoid the sanction of evidence preclusion due to the defendant’s transcendent Sixth Amendment rights. In at least one recent case that bet proved to be a resounding loser.

In United States v. Hardy, 586 F.3d 1040 (6th Cir. 2009), the defendant had been charged with embezzling $250,000 from her employer, a box manufacturer, by transferring funds under her control to another company. Hardy’s defense was that the transfers amounted to a repayment of loans she had earlier caused to be made to the box company, and sought to introduce at trial check stubs in her possession documenting the alleged, earlier loan. Defense counsel had not supplied the government with copies of those defense exhibits prior to trial, and explained the omission by saying that he had not intended to use them and was only obliged to do so when a duces tecum subpoena served on the box company failed to yield original documentary evidence of the loans. The government objected, and the trial court precluded use of the defense check stubs because of a failure to comply with FRCP 16(b).

The Sixth Circuit affirmed the resulting conviction. Under FRCP 16(b), the defense was required to produce in discovery papers and documents in the possession of the defense which are intended for use in the defense’s case-in-chief. Under FRCP 16(c), the obligation is a continuing one. The appeals court viewed the non-disclosure as willful, making exclusion a proper remedy. To the defense counsel’s strained argument that the requirements of FRCP 16(b) apply only to admissible records and the admissibility of the defense’s copies could only be determined when the subpoena seeking original versions proved unavailing, the Sixth Circuit had an emphatic response: the disclosure obligation exists when (a) the defense possesses the document and (b) intends to offer it, regardless of the outcome of any anticipated dispute over admissibility. The Sixth Amendment’s guaranteed right to present exculpatory evidence was not absolute, and could be overcome by the countervailing interests represented here by FRCP 16(b).

The Hardy case is a useful reminder that, while a risk-benefit analysis may justify delaying disclosure until as late in the pre-trial process as possible, that analysis may tilt unalterably against defense counsel if disclosure is not finally made at some point prior to the actual start of the trial.