(a) Definition. Exculpatory information is information that is material and favorable to the
accused and includes, but is not necessarily limited to, information that tends to:
(1) cast doubt on defendant’s guilt as to any essential element in any count in the
indictment or information;
(2) cast doubt on the admissibility of evidence that the government anticipates using in
its case-in-chief, that might be subject to a motion to suppress or exclude, which
would, if allowed, be appealable pursuant to 18 U.S.C. § 3731;
(3) cast doubt on the credibility or accuracy of any evidence that the government
anticipates using in its case-in-chief; or
(4) diminish the degree of the defendant’s culpability or the defendant’s Offense Level
under the United States Sentencing Guidelines.
(b) Timing of Disclosure by the Government. Unless the government invokes the declination
procedure under L.R. 116.6, the government must produce to the defendant exculpatory
information in accordance with the following schedule:
(1) within the time period designated in L.R. 116.1(c)(1), or by any alternative date
established by the court:
(A) information that would tend directly to negate the defendant’s guilt
concerning any count in the indictment or information;
(B) information that would cast doubt on the admissibility of evidence that the
government anticipates using in its case-in-chief and that could be subject
to a motion to suppress or exclude, which would, if allowed, be appealable
pursuant to 18 U.S.C. § 3731; and
(C) a statement whether any promise, reward, or inducement has been given to
any witness whom the government anticipates calling in its case-in-chief,
identifying by name each such witness and each promise, reward, or
inducement, and a copy of any promise, reward, or inducement reduced to
writing
(D) a copy of any criminal record of any witness whom the government
anticipates calling in its case-in-chief, identifying by name each such
witness;
(E) a written description of any criminal cases pending against any witness
whom the government anticipates calling in its case-in-chief, identifying by
name each such witness.
(F) a written description of the failure of any percipient witness identified by
name to make a positive identification of a defendant, if any identification
procedure has been held with such a witness with respect to the crime at
issue.
(2) Not later than 21 days before the trial date established by the judicial officer who
will preside at the trial:
(A) any information that tends to cast doubt on the credibility or accuracy of any
witness or evidence that the government anticipates calling or offering in its
case-in-chief,
(B) any inconsistent statement, or a description of such a statement, made orally
or in writing by any witness whom the government anticipates calling in its
case-in-chief, regarding the alleged criminal conduct of the defendant;
(C) any statement or a description of such a statement, made orally or in writing
by any person, that is inconsistent with any statement made orally or in
writing by any witness the government anticipates calling in its case-inchief,
regarding the alleged criminal conduct of the defendant;
(D) information reflecting bias or prejudice against the defendant by any
witness whom the government anticipates calling in its case-in-chief;
(E) a written description of any prosecutable federal offense known by the
government to have been committed by any witness whom the government
anticipates calling in its case-in-chief;
(F) a written description of any conduct that may be admissible under Fed. R.
Evid. 608(b) known by the government to have been committed by a
witness whom the government anticipates calling in its case-in-chief; and
(G) information known to the government of any mental or physical impairment
of any witness whom the government anticipates calling in its case-in-chief,
that may cast doubt on the ability of that witness to testify accurately or
truthfully at trial as to any relevant event.
(3) No later than the close of the defendant’s case: exculpatory information regarding
any witness or evidence that the government intends to use in rebuttal.
(4) Before any plea or to the submission by the defendant of any objections to the
PreSentence Report, whichever first occurs: a written summary of any information
in the government’s possession that tends to diminish the degree of the defendant’s
culpability or the defendant’s Offense Level under the United States Sentencing
Guidelines.
(5) If an item of exculpatory information can reasonably be deemed to fall into more
than one of the foregoing categories, it shall be deemed for purposes of determining
when it must be produced to fall into the category which requires the earliest
production.
Adopted September 8, 1998; effective December 1, 1998; amended effective February 1, 2012.
