IV. ARRAIGNMENT AND PRETRIAL

217

Rule 16: Discovery and Inspection.

(a) Disclosure of Evidence by the State.

(1) Information Subject to Disclosure.

(A) Defendant’s Oral Statement. Upon a defendant’s request, the state shall disclose to the defendant the substance of any of the defendant’s oral statements made before or after arrest in response to interrogation by any person the defendant knew was a law-enforcement officer if the state intends to offer the statement in evidence at the trial;

(B) Defendant’s Written or Recorded Statement. Upon a defendant’s request, the state shall disclose to the defendant, and make available for inspection, copying, or photographing, all of the following:

(i) the defendant’s relevant written or recorded statements, or copies thereof, if:

(I) the statement is within the state’s possession, custody, or control; and

(II) the district attorney general knows–or through due diligence could know–that the statement exists; and

(ii) the defendant’s recorded grand jury testimony which relates to the offense charged.

(C) Organizational Defendant. Upon a defendant’s motion, if the defendant is a corporation, limited liability company, limited liability partnership, partnership, association, or labor union, the court may grant the defendant discovery of relevant recorded testimony of any witness before a grand jury who was:

(i) at the time of the testimony, so situated as an officer or employee as to have been able legally to bind the defendant regarding conduct constituting the offense; or

(ii) at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been able legally to bind the defendant regarding that alleged conduct in which the witness was involved.

(D) Codefendants. Upon a defendant’s request, when the state decides to place codefendants on trial jointly, the state shall promptly furnish each defendant who has moved for discovery under this subdivision with all information discoverable under Rule 16(a)(1)(A), (B), and (C) as to each codefendant.

(E) Defendant's Prior Record. Upon a defendant’s request, the state shall furnish the defendant with a copy of the defendant's prior criminal record, if any, that is within the state’s possession, custody, or control if the district attorney general knows–or through due diligence could know–that the record exists.

(F) Documents and Objects. Upon a defendant’s request, the state shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, if the item is within the state’s possession, custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

(G) Reports of Examinations and Tests. Upon a defendant’s request, the state shall permit the defendant to inspect and copy or photograph the results or reports of physical or mental examinations, and of scientific tests or experiments if:

(i) the item is within the state’s possession, custody, or control;

(ii) the district attorney general knows–or through due diligence could know–that the item exists; and

(iii) the item is material to preparing the defense or the state intends to use the item in its case-in-chief at trial.

(2) Information Not Subject to Disclosure. Except as provided in paragraphs (A), (B), (E), and (G) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney general or other state agents or law enforcement officers in connection with investigating or prosecuting the case. Nor does this rule authorize discovery of statements made by state witnesses or prospective state witnesses.

(3) Grand Jury Transcripts. This rule does not apply to the discovery or inspection of a grand jury’s recorded proceedings, except as provided in Rule 6 and Rule 16(a)(1)(A), (B), and (C).

(4) Failure to Call Witness. The fact that a witness's name is furnished under this rule is not grounds for comment on a failure to call the witness.

(b) Disclosure of Evidence by the Defendant.

(1) Information Subject to Disclosure.

(A) Documents and Tangible Objects. If a defendant requests disclosure under subdivision (a)(1)(F) or (G) of this rule and the state complies, then the defendant shall permit the state, on request, to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions of these items if:

(i) the item is within the defendant’s possession, custody, or control; and

(ii) the defendant intends to introduce the item as evidence in the defendant’s case-in-chief at trial.

(B) Reports of Examinations and Tests. If the defendant requests disclosure under subdivision (a)(1)(F) or (G) of this rule and the state complies, the defendant shall permit the state, on request, to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, if:

(i) the item is within the defendant’s possession, custody, or control; and

(ii) the defendant intends to introduce the item as evidence in the defendant’s case-in-chief at trial; or

(iii) the defendant intends to call as a witness at trial the person who prepared the report, and the results or reports relate to the witness's testimony.

(2) Information Not Subject to Disclosure. Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of:

(A) reports, memoranda, or other internal defense documents made by the defendant or the defendant's attorneys or agents in connection with the investigation or defense of the case; or

(B) a statement made by the defendant to the defendant’s agents or attorneys or statements by actual or prospective state or defense witnesses made to the defendant or the defendant’s agents or attorneys.

(3) Failure to Call Witness. The fact that a witness's name is on a list furnished under this rule is not grounds for comment on a failure to call the witness.

(c) Continuing Duty to Disclose. A party who discovers additional evidence or material before or during trial shall promptly disclose its existence to the other party, the other party’s attorney, or the court if:

(1) the evidence is subject to discovery or inspection under this rule, and

(2) the other party previously requested, or the court ordered, its production.

(d) Regulating Discovery.

(1) Protective and Modifying Orders. At any time, for good cause shown, the court may deny, restrict, or defer discovery or inspection, or grant other appropriate relief. On a party’s motion, the court may permit the party to make such showing, in whole or in part, by written statement that the court will inspect ex parte. If relief is granted following an ex parte submission, the court shall preserve under seal in the court records the entire text of the party’s written statement.

(2) Failure to Comply with a Request. If a party fails to comply with this rule, the court may:

(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms or conditions;

(B) grant a continuance;

(C) prohibit the party from introducing the undisclosed evidence; or

(D) enter such other order as it deems just under the circumstances.

(e) Alibi Witnesses. Discovery of alibi witnesses is governed by Rule 12.1.

(3) Procedure in Child Pornography Cases. In any criminal history proceeding relating to the sexual exploitation of minors under title 39, chapter 17, part 10 that involves documents or objects discoverable pursuant to Rule 16(a)(1)(F), the court shall, on motion of the state:

             (A) Deny any request by the defendant to copy or photograph any documents or
             objects depicting sexual exploitation of minors under title 39, chapter 17, part 10,
             so long as the state shows that the documents or objects will be made reasonably
             available to the defendant throughout the proceeding.

             (B) For the purposes of subdivision(d)(3)(A), documents or objects shall be
             deemed to be reasonably available to the defendant if the state provides ample
             opportunity for inspection, viewing, and examination at a state facility of the
             documents or objects by the defendant, the defendant's attorney, and any
             individual the defendant may seek to qualify to furnish expert testimony at
             trial. The Court may, in its discretion, permit other individuals to have access to the
             documents or objects if necessary to protect the rights of the defendant.

             (C) If the state fails to demonstrate that the documents or objects will be made
             reasonably available to the defendant throughout the proceeding, or fails to make
             the documents or objects reasonably available to the defendant at any time during
             the proceeding, the trial court may order the state to permit the defendant to copy
             or photograph any documents or objects subject to terms and conditions set by
             the court in an appropriate protective order.

[Amended by order filed January 8, 2018, effective July 1, 2018.]    

Advisory Commission Comment.

This rule substantially conforms to the new federal discovery Rule 16, and was adopted by the commission as a middle-ground reciprocal rule.

The reference in (a)(1)(B) to the discovery of recorded grand jury testimony of a defendant will not have the same utility in state court, because under state procedure a prospective defendant seldom is required to testify before a grand jury. The commission left this language in the rule because it might be useful in connection with the operation of Rule 6(j)(5) and (6), the immunity provisions. Grand jury proceedings in Tennessee are not presently regularly recorded, but could be.

The rule is always triggered by the defendant; where the defendant requests disclosure, the reciprocal rights of the state come into play.

The commission agrees that the defendant shall still receive advance notice of the names of the state's witnesses, as is now provided by T.C.A. §§ 40-13-107, 40-17-106.

It is intended that section (a)(1)(F), as it relates to the inspection of tangible objects, shall mean that in controlled substance cases the defendant upon request must be furnished a sufficient quantity of the substance to permit a scientific examination for identification purposes. The defendant has this right under existing case law. The commission considers that a meaningful "inspection" of a controlled substance means a scientific testing of a sample thereof. Results are subject to discovery by the state under section (b)(1)(B).

The continuing duty to disclose set out in section (c), and the flexibility of the court's regulation of discovery as set out in section (d), are deemed to be very important.

Rules 12.1 and 12.2, although not technically discovery rules, are closely related.

While we have heretofore had a substantial body of statutory and case law providing for discovery by the defendant, this rule for the first time provides the state with reciprocal discovery.

This rule is not the exclusive procedure for obtaining discovery, since discovery required by due process is not expressly structured into the rule. For example, for the rule as to the state's duty to disclose exculpatory evidence, see Brady v. Maryland, 373 U.S. 83 (1963). The voluntary disclosure of evidence not within the ambit of this rule is encouraged by the commission. Under section (a)(1)(A), the commission originally provided that the defendant might obtain all of his or her statements, whether made to a law-enforcement official or to a lay witness. However, this was amended to conform to the federal rule, being limited by the language, "in response to interrogation by any person then known to the defendant to be a law-enforcement officer."

The statements of a codefendant discoverable by the codefendant are likewise made discoverable by the defendant, if the codefendant and the defendant are scheduled to be tried jointly. Such statements of a codefendant may be reviewed to determine whether or not a severance under Rule 14(c) need be sought.

The procedure provided in 16(a)(1)(E) conforms to T.C.A. § 40-17-120. It is similar to the federal Jencks Act (18 U.S.C. § 3500), but broader. This rule allows the defendant and the state to request a witness's statement from the presenting adverse party after the witness has testified on direct examination. Although it is technically a discovery device, its most important function is to promote the integrity of the fact-finding process, and is related to the due process requirements of Brady and its progeny. The commission deliberately did not incorporate that provision of subdivision (e)(3) of the federal Jencks Act, which applies to statements of witnesses before a grand jury, and such statements are not meant to be obtainable hereunder simply because a grand jury witness testifies for the state. Such statements may only be obtained under the limited provisions of existing law now embodied in Rule 6(k)(2).

Advisory Commission Comment 2018.

Title 39, chapter 17, part 10 of the Tennessee Code Annotated prohibits conduct that involves child pornography. See Sentencing Commission Comment to Tenn. Code Ann. § 39-17-1001. Consequently, evidence in those cases often will be material that constitutes child pornography. The amendment conforms Tennessee discovery practice to federal law concerning the reproduction of material constituting child pornography under 18 U.S.C. § 3509(m). Tennessee courts face this situation on a routine basis, and the absence of a clear procedural rule can lead to delay in a defendant’s defense, time-consuming proceedings, and the expenditure of judicial resources. See, e.g., State v. Re’Licka Dajuan Allen, No. E2007-01018-CCA-R3-CD (Tenn. Crim. App., Feb. 12, 2009). The amendment provides the procedural means for trial courts to control the reproduction and dissemination of material constituting child pornography, while protecting a defendant’s right to access the information for the purpose of a defense.  A form for a protective order under section (d)(3)(C) is provided below as part of this comment.

 

State of Tennessee Circuit / Criminal Court

 

County

PROTECTIVE ORDER PURSUANT TO TENN. R. CRIM. P. 16(d)(3)

Case Number

 

STATE OF TENNESSEE   vs.                                                                                     

[Defendant’s Name]

 

This matter is before the Court upon the motion of the State of Tennessee pursuant to Tenn. R. Crim. P. 16(d)(3) for a protective order governing the production in discovery of documents and objects relating to the sexual exploitation of minors under title 39, chapter 17, part 10. It is, therefore, ORDERED, that the following provisions of this Order shall control the disclosure, dissemination, and use of information in this action:

1. The state of Tennessee has failed to demonstrate that the documents or objects subject to discovery pursuant to Tenn. R. Crim. P. 16(a)(1)(F) will be made reasonably available to the defendant throughout the proceeding or has failed to make the property or material reasonably available to the defendant at any time during the proceeding. Therefore, the trial court orders the state to permit the defendant to copy or photograph any documents or objects that constitute “material” (hereinafter “Prima Facie Contraband”) as defined in Tenn. Code Ann. § 39-17-1002 and prohibited by Tenn. Code Ann. §§ 39-17-1003, -1004, and -1005, subject to the following conditions.

2. Defendant and Defendant’s counsel acknowledged that the material that is subject to this order is prima facie contraband the possession of which is otherwise prohibited. Defendant and Defendant’s counsel shall be authorized to possess the Prima Facie Contraband during the pendency of this proceeding as long as Defendant and Defendant’s counsel comply with the terms of this order.

3. Defendant and Defendant’s counsel may possess and use the Prima Facie Contraband only for purposes of this litigation and not for any personal, business, commercial, scientific, competitive, or any other purpose whatsoever.

4.  Except as permitted by Paragraph 5, Defendant and Defendant’s counsel shall not disclose the Prima Facie Contraband to any person. Any unauthorized disclosure shall be treated as contempt of this order and may result in criminal prosecution.

5. Defendant and Defendant’s counsel may disclose the Prima Facie Contraband to the following Authorized Persons: (a) counsel of record for the parties; (b) the permanent or temporary attorneys, paralegals, clerical, and secretarial staff employed by or in practice with Defendants’ counsel; (c) non-party experts or consultants (together with their associates, consultants and clerical and secretarial staff) retained to assist in the defense, settlement, or other disposition of this action; (d) court reporter(s) employed in this action; (e) court personnel; (f) a witness at any deposition or other proceeding in this action and counsel for that witness; and (g) third-party contractors engaged in one or more aspects of organizing, copying, imaging, filing, coding, converting, storing or retrieving data, documents, or other information, or designing programs for handling data connected with this litigation, including the performance of such duties in relation to a computerized litigation support system.

6. Before making any disclosure authorized by Paragraph 5, Defendant and Defendant’s counsel shall deliver a copy of this Order to the Authorized Persons, shall explain its terms to the Authorized Persons, shall instruct the Authorized Persons to comply with this Order, and shall require the Authorized Persons to acknowledge receipt of a copy of this Order in writing.

7. Within 30 days of the final disposition of this action in the highest court to which an appeal is taken, or if no appeal is taken within 30 of entry of the judgment, Defendant, Defendant’s counsel, and each Authorized Person shall return the Prima Facie Contraband to the state or certify under oath that the Prima Facie Contraband has been destroyed.

8. Defendant, Defendant’s counsel, and each Authorized Person who receives Prima Facie Contraband shall maintain the Prima Facie Contraband in a safe and secure area consistent with the provisions of this Order to prevent unauthorized disclosure or dissemination.

9. This Order shall remain in effect after the final determination of this action, unless otherwise ordered by the Court.

10. Each person to whom any Prima Facie Contraband is disclosed agrees to be subject to the jurisdiction of this Court for the purpose of proceedings relating to compliance with or violation of this Order.

 

IT IS SO ORDERED.

 

                                                  _______________________________________
                                                                Judge

                                                                      
 

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