New Rule 16 Expert Notice Requirements

Amendments to Federal Rule of Criminal Procedure Rule 16 take effect this Thursday, December 1, 2022. These broad changes bring the rule “closer to civil practice” by expanding the scope of the required notice and imposing an enforceable deadline for disclosure. Here are some of the significant changes:

• The government must disclose in writing any expert testimony that it intends to use at trial in its case-in-chief or in rebuttal to counter timely disclosed defense evidence. The rule also now requires a “complete statement” of the witness’s opinions rather than just a summary.
• Predicated on certain mutual notice and requests, the government must disclose in writing evidence that it intends to use at trial on the “issue of the defendant’s mental condition.”
• The content of the disclosure requires a “complete statement of all opinions” the government will elicit in its case-in-chief or in rebuttal; the bases and reasons; and the witness's qualifications, including
  • A list of all publications authored in the previous 10 years;
  • A list of all other cases in which the witness testified as an expert at trial or deposition for the last 4 years.
• The witness must approve and sign the disclosure, with limited exceptions.  

Redlined version is available here at pp. 172-185.

In Kansas, the triggering requests listed in the amended rule are automatic in D. Kan. Pretrial and Criminal Case Management Order at ¶ 5, but may vary among the judges. (The defense can still opt out of reciprocal discovery if it chooses to do so.) Similarly, the new rule does not set a certain disclosure deadline, but requires that the court or a local rule “must set a time” for disclosure. (Also covered, for now, in our D. Kan. standard pretrial order, ¶ 9 (within 30 days after arraignment) & ¶ 10.)

The government must satisfy these new notice requirements for any FRE 702 expert, including law-enforcement officers who testify as experts. The rule is not limited to “forensic experts.” The Tenth Circuit recognizes that law-enforcement officers may testify as experts under F.R.E. 702 and 704, and that this triggers the notice requirements under Rule 16. See, e.g., United States v. Medina-Copete, 757 F.3d 1092, 1098, 1101, 1109 (10th Cir. 2014). That should stand under the amendments.

Rule 16(b)(1)(C) imposes reciprocal obligations for defense expert testimony that will be used in the defendant’s case-in-chief. We have the same obligations to disclose prior testimony and publications, as well as to have our expert approve and sign the notice. This may raise some interesting issues. For example, if we are using a government witness as our own expert (say, a police officer or DEA lab chemist), this may mean we need additional discovery from the government in order to comply with our obligations to the government.