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REPORTS OF EXAMINATIONS AND TESTS

Rule 16(a)(1)(D) places a mandatory duty upon the Government to disclose the following, upon request of the defendant:

1. Any result or reports of physical or mental examination, and
2. Any results of reports of scientific tests or experiments made in connection with the particular case.

Scientific Tests and

The obligation of disclosure applies only to scientific tests or experiments made in connection with a particular case. “Limited mandatory disclosure is justified, because: (1) it is difficult to test expert trial testimony without advance notice and preparation; (2) it is not likely that such evidence will be distorted or misused if disclosed prior to trial; and (3) to the extent that a test may be favorable to the defense its disclose is mandated under Brady,” 1975 Advisory Committee Note to Subdivision (a)(1)(D).

Field

Standard field tests used by DEA to identify controlled substances and internal memoranda relating to such tests, were not discoverable in a cocaine prosecution because not made in connection with that particular case. US v. Orzechowski, 547 F.2d 978 (8^th Cir. 1976); or where the defendant had the use of such memoranda during trial US v. Umentum, 547 F.2d 987 (8^th Cir. 1976), cert. den., 430 US 983.

Failure to

Even if the government fails to produce the results or reports of scientific tests in violation of Rule 16(a)(1)(D), the defendant still must demonstrate prejudice. US

1. Deweese, 632 F.2d 1267 (5^th Cir. 1980). In Gorham v. Wainwright, 588 F.2d 178 (5^th Cir. 1979), the government did not deliver defendant’s counsel, a F.B.I. lab report which was conclusive of guilt until after the trial had begun. The court affirmed the conviction finding no prejudice because defendant’s counsel asked for and received a ten minute recess to stuffy the report and did not request a continuance. See also US v. Eisler, 567 F.2d 814 (8^th Cir. 1977); US v. Phillips, 585 F.2d 745 (8^th Cir. 1978) (holding Government’s failure to disclose handwriting analyst’s report did not prejudice defendant); Norris v. Slayton, 540 F.2d 1241 (4^th Cir. 1976); US v. Beaver, 524 F.2d 963 (5^th Cir. 1975), cert. den., 425 US 963 (5^th

Cir. 1975), cert. den., 425 US 905 (1976).

 

DISCOVERY OF LAW ENFORCEMENT REPORTS AT PRE-TRIAL SUPPRESSION HEARING

 FED. R. CRIM. P. Rule 41(f) specifically provides for the filing of a Motion to Suppress and a pretrial hearing thereon as the appropriate remedy for enforcing a defendant’s Fourth Amendment protection against unreasonable search and seizure.

A recent amendment to FED. R. CRIM. P. Rule 12(i) provides for the disclosure of witness statements under FED. R. CRIM. P. Rule 26.2 [reciprocal Jencks] at the pre-trial motion to suppress hearing.

“Rule 12. Pleadings and Motions Before Trial; Defenses and Objections

(i)        PRODUCTION OF STATEMENTS AT SUPPRESSION HEARING.

Except as herein provided, Rule 26.2 shall apply at a hearing on a motion to suppress evidence under subdivision (b)(3) of this rule. For purposes of this subdivision, a law enforcement officer shall be deemed a witness called by the government, and upon a claim of privilege the court shall excise the portions of the statement containing privilege matter.”

And “law enforcement” officers are “deemed” to have been called by the government even if subpoenaed and put on the stand by the defendant.

The Advisory Committee notes to new Rule 12(i) expressly provide that when “a federal, state or local officer has testified at a suppression hearing, the defendant will be entitled to any statement of the officer in the possession of the government and relating to the subject matter concerning which the witness has testified, without regard to whether the officer was in fact called by the government or the defendant.”

Accordingly, standard field tests used by D.E.A. to identify controlled substances and internal memoranda relating to such tests were not discoverable in a cocaine prosecution because they were not made in connection with that particular case. US v. Orzechowski, 547 F.2d 978 (8^th Cir. 1976); or where the defendant had the use of such memoranda during trial, US v. Umentum, 547 F.2d 987 (8^th Cir. 1976), cert. den., 430 US 983.

However, pursuant to the mandatory disclosure provisions of the Freedom of Information Act [5 U.S.C. § 552(a)(2)(C)- requiring agencies to make public “administrative staff manuals”] DEA has been required to disclose portions of their agents’ manuals dealing with informants and search warrants. And the so-called “law enforcement exception” [5 U.S.C. 552(b)(7)] is inapplicable since that provision relates only to records compiled in the course of an investigation directed at specific persons, and then only if disclosure would reveal investigative techniques and procedures. Those portions dealing with planning prior to entry, however, were exempted from disclosure as same constituted an “internal personnel” matter in which the general public could not reasonably be expected to have an interest [§ 552(b)(2)]. Sladek v. Bensinger, 605 F.2d 899 (5^th Cir. 1979). See also Jordan v. U.S. Department of Justice, 591 F.2d 753 (D.C. Cir. 1978), overruled on other grounds by Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1053 (D.C. Cir. 1981); Contra v. Bureau of Alcohol, Tobacco and Firearms, 587 F.2d 544 (2d Cir. 1978).

Even in cases where the government fails to produce the results or reports of scientific tests in violation of Rule 16(a)(1)(D), many courts have still required that the accused demonstrate prejudice. US v. Deweese, 632 F.2d 1267 (5^th Cir. 1980). In Gorham v. Wainwright, 588 F.2d 178 (5^th Cir. 1979), the government did not deliver defendant’s counsel a F.B.I. lab report which was conclusive of guilt until after the trial had begun. The court affirmed the conviction finding no prejudice because defendant’s counsel asked for and received a ten-minute recess to study the report and did not request a continuance. See also US v. Eisler, 567 F.2d 814 (8^th Cir. 1977); US

1. Phillips, 585 F.2d 745 (5^th Cir. 1978) (noting Government’s failure to disclose handwriting analyst’s report did not prejudice defendant); Norris v. Slayton, 540 F.2d 1241 (4^th Cir. 1976); US
2. Beaver, 524 F.2d 963 (5^th Cir. 1975), cert. den., 425 US 905 (1976).