3. In cases that do not require extensive discovery, the parties shall
propose to the Court a schedule for the exchange of Rule 16 discovery and a
schedule for pretrial motions following the completion of discovery. (A sample
form of Order for use in such cases is Exhibit 1 to this Standing Order,
attached).
4. In cases that will require more extensive discovery, the parties
shall propose a discovery schedule and order that takes into account the
nature and extent of the discovery in the case, including circumstances that
may delay the completion of discovery. In some cases, for example, it may be
appropriate to schedule the production of discovery in stages. In all such cases,
however, the order proposed by the parties shall provide for at least one status
conference (either in person or by telephone) at which the Court will assess the
progress of discovery and determine whether a schedule for pretrial motions
should be set or whether another conference, or conferences, should be
scheduled prior to setting a schedule for pretrial motions. (A sample form of
Order for use in such cases is Exhibit 2 to this Standing Order, attached.)
5. The parties shall provide their proposed scheduling order to the
Court prior to arraignment. That proposed scheduling order will be discussed,
modified if deemed necessary by the Court, and entered at the arraignment.
6. If the parties cannot agree on the details of a proposed scheduling
order prior to arraignment, each party shall submit a proposed order along
with any justification. After hearing the parties at the arraignment, the Court
will enter an appropriate scheduling order.
7. In cases in which there is no counsel for the defendant prior to
arraignment, or if counsel changes at arraignment, the Court shall direct the
parties to take the above actions within two weeks following the arraignment. If
the parties cannot reach an agreement with regard to scheduling, the parties
shall submit their respective proposed scheduling orders within two weeks
following the arraignment. The Court should thereafter hold a brief conference
(in person or by telephone) to set the schedule and enter the appropriate order.
(A sample form of Order for use in such cases is Exhibit 3 to this Standing
Order, attached.)
8. If the parties agree that the ends of justice would be served by
holding the trial more than 70 days after the indictment or arraignment, the
parties should also propose an order excluding time for purposes of the Speedy
Trial Act. (Sample forms of order for use in such cases are Exhibits 4 and 5 to
this Standing Order, attached.)
2
The Discovery Period and Non Binding Goals of Discovery
9. The Federal Rules of Criminal Procedure and federal case law
prescribe the discovery that must be provided by the Government and the
defense. The goal of this scheduling protocol, however, is to encourage but
not require both the Government and the defense to provide discovery beyond
that which is required by law, as discussed below.
10. In appropriate cases, the Government should describe for the
defendant and counsel the nature of the Government=s evidence and should
consider disclosing some Jencks material that could assist the defense in
evaluating the case.
11. The defense should consider advising the Government of what may
constitute Brady material in the case and the reasons for that position. In
appropriate cases, the defense should also consider describing for the
Government its defense in sufficient detail so that the Government can better
assess what material may fall within the ambit of Brady. This should be done
as early in the discovery period as possible.
12. Both parties should consider entering into an agreement to provide
more information about witness statements and impeachment material than
that required by law and to provide that information in advance of the time
required by law.
13. Upon such an agreement, the Government should provide to the
defense, prior to the final pretrial conference, the Jencks and Giglio material
for its witnesses. If no such material exists for a witness, the Government
should also consider advising the defense of the general substance of the
witness’s anticipated testimony.
14. Upon such an agreement and the Government’s early disclosure of
witness material as described in the preceding paragraph, the defense should
provide reverse Jencks and impeachment material for its witnesses and, if no
such material exists for a witness, should advise the Government of the general
substance of the witness’s anticipated testimony. This should be done as close
to the final pretrial conference as possible and, in any event, well before the
start of trial.
15. These discovery goals will not create any rights or obligations
beyond those rights and obligations already existing under federal law.
Moreover, when either the Government or the defense discloses the general
3
substance of anticipated testimony because there is no Jencks material, the
party receiving this information will agree not to seek to (1) use such a
summary as an admission of a party opponent; or (2) admit such a summary
as a prior inconsistent statement pursuant to Rule 613(b) of the Federal Rules
of Evidence.
16. In all cases, regardless of complexity, the parties should advise the
Court of discovery issues as early as possible so that the Court can determine
whether to hold an additional conference to attempt to resolve them prior to the
conclusion of the discovery period and without the necessity of formal motion
practice.
THE FINAL PRETRIAL CONFERENCE
17. No sooner than two weeks following the disposition of pretrial
motions, the Court shall, in consultation with the parties, schedule a final
pretrial conference.
18. At the pretrial conference, the parties shall advise the Court
whether the case should be set for trial. The Court, in appropriate cases, may
wish to conduct a Frye inquiry to ensure that the defendant has been made
aware of all Government plea offers and has rejected them. (A sample Frye
inquiry is Exhibit 6 to this Standing Order, attached.)
19. If the parties have informed the Court that the case should be set
for trial, the Court, in consultation with counsel, shall set a schedule providing
for at least the following:
exchange of pre marked exhibits by the Government and the
defense;
production of Jencks and Giglio material by the Government;
production of reverse Jencks and impeachment material by the
defense;
production of Rule 404(b) material by the Government;
production of reverse Rule 404(b) material by the defense;
objections to the authenticity of exhibits, the chain of custody of
exhibits, and the scientific analysis of exhibits;
4
EXHIBIT 1
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA Criminal No.
SCHEDULING ORDER
vs.
[Defendant’s Name]
This matter having come before the Court for arraignment; and the
United States being represented by Paul J. Fishman, United States
Attorney for the District of New Jersey (by ____________________, Assistant
U.S. Attorney, appearing); and the Defendant being represented by
____________________; and the parties having met and conferred prior to
arraignment and having determined that this matter may be treated as a
criminal case that does not require extensive discovery within the
meaning of paragraph 3 of this Court’s Standing Order for Criminal Trial
Scheduling and Discovery; and the parties having agreed on a schedule
for the exchange of discovery and the filing and argument of pretrial
motions; and the Court having accepted such schedule, and for good
cause shown,
It is on this ___ day of ___, 20__, ORDERED that:
1. The Government shall provide all discovery required by Federal
Rule of Criminal Procedure 16(a)(1) on or before ________________________.
2. The Government shall provide exculpatory evidence, within the
meaning of Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, on or
before ____________________. Exculpatory evidence that becomes known
to the Government after that date shall be disclosed reasonably promptly
after becoming known to the Government.
3. If there is more than one defendant named in the indictment,
and if the Government intends to introduce into evidence in its case-in-
chief a confession made to law enforcement authorities by one defendant
that names or makes mention of a co-defendant, a copy of that statement
or confession shall be disclosed by the Government on or before
_______________________. The Government shall provide a proposed
redaction to that statement to conform with the requirements of Bruton v.
United States, 391 U.S. 123 (1968) and its progeny, on or before
___________________________.
4. The Defendant shall provide all discovery required by Federal
Rule of Criminal Procedure 16(b)(1) on or before ____________________.
5. The Defendant shall provide any and all notices required by
Federal Rules of Criminal Procedure 12.1, 12.2, and 12.3 on or before
_________________________.
6. The following shall be the schedule for pretrial motions in this
matter:
a) The Defendant shall file any and all pretrial motions,
pursuant to Federal Rules of Criminal Procedure 12(b) and 41(h), in the
manner set forth in L. Civ. R. 7.1, on or before ___________;
b) The Government shall file any response to the Defendant’s
pretrial motions on or before __________;
c) The Defendant shall file any reply on or before __________;
d) Oral argument on pretrial motions shall be held on
____________ at ____ a.m./p.m..
_____________________________
Honorable
United States District Judge
EXHIBIT 2
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA Criminal No.
SCHEDULING ORDER
vs.
[Defendant’s Name]
This matter having come before the Court for arraignment; and the United
States being represented by Paul J. Fishman, United States Attorney for the
District of New Jersey (by ____________________, Assistant U.S. Attorney,
appearing); and the Defendant being represented by ____________________; and
the parties having met and conferred prior to arraignment and having
determined that this matter may be treated as a criminal case that requires
extensive discovery within the meaning of paragraph 4 of this Court’s Standing
Order for Criminal Trial Scheduling and Discovery; and the parties having
agreed on a schedule for the initial exchange of discovery; and the Court having
accepted such schedule, and for good cause shown,
It is on this ___ day of ___, 20__, ORDERED that:
1. The Government shall provide any oral, written or recorded statement
of the Defendant or, in the case of an organizational defendant, of any person
who is legally able to bind the Defendant because of that person’s position as a
director, officer, employee or agent of the Defendant on or before
________________________.
2. The Government shall provide exculpatory evidence, within the
meaning of Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, on or before
_________________________. Exculpatory evidence that becomes known to the
Government after that date shall be disclosed reasonably promptly after
becoming known to the Government.
3. If there is more than one defendant named in the indictment, and if
the Government intends to introduce into evidence in its case-in-chief a
confession made to law enforcement authorities by one defendant that names or
makes mention of a co-defendant, a copy of that statement or confession shall
be disclosed by the Government on or before _______________________. The
Government shall provide a proposed redaction to that statement to conform
with the requirements of Bruton v. United States, 391 U.S. 123 (1968) and its
progeny, on or before ___________________________.
4. [The parties should make a good faith attempt to establish a
reasonable schedule for the remainder of discovery required by Federal Rule of
Criminal Procedure 16(a)(1), and to set forth that schedule in this paragraph.]
5. The defendant shall provide any and all notices required by Federal
Rules of Criminal Procedure 12.1, 12.2, and 12.3 on or before
__________________________.
6. [The parties should make a good faith attempt to establish a
reasonable schedule for the remainder of discovery required by Federal Rule of
Criminal Procedure 16(b)(1), and to set forth that schedule in this paragraph.]
7. A status conference shall be held on __________, at _______ a.m./p.m.,
in order to assess the progress of discovery; to determine a schedule for the
production of additional discovery if necessary; to consider any discovery
disputes if necessary; to set or consider setting a schedule for the next status
conference in this matter; and to set or consider setting a schedule for pretrial
motions if a date for the completion of discovery can be determined.
_____________________________
Honorable
United States District Judge
EXHIBIT 3
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA Criminal No.
SCHEDULING ORDER
vs.
[Defendant’s Name]
This matter having come before the Court for arraignment; and the
United States being represented by Paul J. Fishman, Unites States
Attorney for the District of New Jersey (by ________________________,
Assistant U.S. Attorney, appearing); and the Defendant being
represented by ___________________________; and the parties not having
had sufficient time to meet and confer with regard to a schedule for
discovery and inspection and for pretrial motions because defense
counsel has just been retained/appointed; and for good cause shown,
It is on this _____ day of _____, 20____, hereby ORDERED that:
1. Within two weeks from the date of this Order, that is, on or
before __________________________, the Government and the Defendant
shall take the actions described in paragraphs 2 through 6 of the Court’s
Standing Order for Criminal Trial Scheduling and Discovery; and
2. A status conference shall be held on _____________________, at
________ a.m./p.m., in order for the Court to confer with counsel and to
enter an appropriate Scheduling Order.
_____________________________
Honorable
United States District Judge
EXHIBIT 4
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA Criminal No.
ORDER FOR CONTINUANCE
vs.
[Defendant’s Name]
This matter having come before the Court on the joint application of the
United States, by Paul J. Fishman, United States Attorney for the District of
New Jersey (_______________________ Assistant U.S. Attorney, appearing), and
defendant _________________________ (__________________, Esq., appearing), for
an order granting a continuance of proceedings in the above-captioned matter;
and the defendant being aware that he has the right to have this matter
brought to trial within 70 days of the date of his appearance before a judicial
officer of this court pursuant to 18 U.S.C. § 3161(c)(1); and the defendant
having consented to such continuance and having waived such right; and for
good cause shown,
IT IS THE FINDING OF THIS COURT that this action should be
continued for the following reasons:
1. The failure to grant a continuance would deny counsel for the
defendant and counsel for the Government the reasonable time necessary for
effective preparation for trial, taking into account the exercise of due diligence.
2. As a result of the foregoing, pursuant to 18 U.S.C. § 3161(h)(7)(A)
and (h)(7)(B)(iv), the ends of justice served by the granting of this continuance
outweigh the best interests of the public and the defendant in a speedy trial.
IT IS, therefore, on this __________day of __________________, 20____,
ORDERED that this action be, and hereby is, continued until
_____________________, 20____; and it is further
ORDERED that the period from the date of this order through
_____________________, 20____ be and it hereby is excluded in computing time
under the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq.
__________________________________
Honorable
United States District Judge
Consented to as to form and entry:
____________________________________
Assistant U.S. Attorney
____________________________________
Counsel for defendant
EXHIBIT 5
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA Criminal No.
ORDER FOR CONTINUANCE
vs.
[Defendant’s Name]
This matter having come before the Court on the joint application of the
United States, by Paul J. Fishman, United States Attorney for the District of
New Jersey (_______________________ Assistant U.S. Attorney, appearing), and
defendant __________________________ (_______________________, Esq.,
appearing), for an order granting a continuance of proceedings in the above-
captioned matter; and the defendant being aware that he has the right to have
this matter brought to trial within 70 days of the date of his appearance before
a judicial officer of this court pursuant to 18 U.S.C. § 3161(c)(1); and the
defendant having consented to such continuance and having waived such
right; and for good cause shown,
IT IS THE FINDING OF THIS COURT that this action should be
continued for the following reasons:
1. This case is an unusual or complex case within the meaning of the
Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(B)(ii), in light of [REVISE AS
APPROPRIATE: the number of defendants, the nature of the prosecution,
and/or the existence of novel questions of fact or law] such that it is
unreasonable to expect adequate preparation for pretrial proceedings or for the
trial itself within 70 days.
2. The discovery in the case is expected to be voluminous, consisting of,
among other things, __________________________, and additional time is
necessary to ensure that, taking into account the exercise of diligence, defense
counsel have sufficient time to review and inspect discovery and further
investigate the charges in this matter.
3. As a result of the foregoing, pursuant to 18 U.S.C. § 3161(h)(7)(A)
and (h)(7)(B)(ii) and (iv), the ends of justice served by the granting of this
continuance outweigh the best interests of the public and the defendant in a
speedy trial.
IT IS, therefore, on this ___________day of ___________________, 20____,
(1) ORDERED that this action be, and hereby is, continued until
________________________, 20____; and it is further
(2) ORDERED that the period from the date of this order through
________________________, 20____ be and it hereby is excluded in computing
time under the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq.
__________________________________
Honorable
United States District Judge
Consented to as to form and entry:
____________________________________
Assistant U.S. Attorney
____________________________________
Counsel for defendant
EXHIBIT 6
SAMPLE FRYE COLLOQUY – ONE PLEA OFFER
1. Did you receive a proposed plea agreement dated [DATE]?
2. Did you provide a copy of that proposed plea agreement to your client?
3. Did you review the proposed plea agreement with your client [if
applicable: prior to the expiration date of the plea offer]?
4. Did your client reject the proposed plea agreement?
If defense counsel answers “yes” to all of those questions, and if defense
counsel agrees to the Court questioning the defendant, the Court should
address the defendant as follows:
I am going to ask you some questions. Do not disclose any
communications with your attorney. Do not tell me the terms of any plea offer
made by the Government. The Court is not involved in any plea negotiations,
and it has no opinion regarding your decision whether to plead guilty or
proceed to trial. The decision whether to accept or reject the proposed plea
agreement is exclusively yours to make, but you should make that decision in
consultation with your attorney. When I ask you these questions, please give
me a yes or no answer to each question – nothing more.
1. Do you understand what I have just told you?
2. Did you receive the proposed plea agreement dated [DATE]?
3. Did you have an opportunity to consult with your attorney about that
proposed plea agreement?
4. Did you, in fact, reject the proposed plea agreement?
SAMPLE FRYE COLLOQUY- MULTIPLE PLEA OFFERS
1. Did you receive the proposed plea agreements dated [DATES]?
2. Did you provide a copy of each of those proposed plea agreements to
your client?
3. Did you review each of the proposed plea agreements with your client
[if applicable: prior to the expiration date of the plea offer]?
4. Did your client reject each of the proposed plea agreements?
If defense counsel answers “yes” to all of those questions, the
Government suggests that the Court address the defendant as follows:
I am going to ask you some questions. Do not disclose any
communications with your attorney. Do not tell me the terms of any plea offer
made by the Government. The Court is not involved in any plea negotiations,
and it has no opinion regarding your decision whether to plead guilty or
proceed to trial. The decision whether to accept or reject any of the proposed
plea agreements is exclusively yours to make, but you should make that
decision in consultation with your attorney. When I ask you these questions,
please give me a yes or no answer to each question – nothing more.
1. Do you understand what I have just told you?
2. Did you receive each of the proposed plea agreements dated [DATES]?
3. Did you have an opportunity to consult with your attorney about each
of the proposed plea agreements?
4. Did you, in fact, reject each of the proposed plea agreements?
EXHIBIT 7
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA Criminal No.
SCHEDULING ORDER
vs.
[Defendant’s Name]
This matter having come before the Court for a final pretrial
conference; and the United States being represented by Paul J. Fishman,
United States Attorney for the District of New Jersey (by
_______________________, Assistant U.S. Attorney, appearing); and the
defendant being represented by ______________________; and the Court
having determined that this matter should be scheduled for trial; and for
good cause shown,
It is on this _____ day of _____, 20____, ORDERED that:
1. The Government shall provide its pre-marked exhibits on or
before _______________________.
a) The authenticity and chain of custody of the Government’s
pre-marked exhibits shall be deemed to have been accepted unless an
objection is asserted in accordance with paragraph 1(c).
b) If the Government discloses the scientific analysis of an
exhibit that it proposes to introduce at trial and that analysis has been
determined by an expert in the field of science involved, the scientific
analysis of the exhibit shall be deemed to have been accepted unless an
objection is asserted in the form set forth in paragraph 1(c).
c) If the defendant wishes to contest the authenticity, chain of
custody, or scientific analysis of an exhibit, counsel for the defendant
shall file, on or before _______________________, a notice that the
authenticity, chain of custody, and/or scientific analysis of the exhibit
will be contested at trial together with a statement delineating why the
authenticity, chain of custody, and/or scientific analysis of the exhibit is
being challenged and a certification that the challenge is being made in
good faith.
2. The Defendant shall provide its pre-marked exhibits on or
before ____________________.
a) The authenticity and chain of custody of the Defendant’s
pre-marked exhibits shall be deemed to have been accepted unless an
objection is asserted in accordance with paragraph 2(c).
b) If the Defendant discloses the scientific analysis of an
exhibit that the Defendant proposes to introduce at trial and that
analysis has been determined by an expert in the field of science
involved, the scientific analysis of the exhibit shall be deemed to have
been accepted unless an objection is asserted in the form set forth in
paragraph 2(c).
c) If the Government wishes to contest the authenticity, chain
of custody, or scientific analysis of an exhibit, counsel for the
Government shall file, on or before _______________________, a notice that
the authenticity, chain of custody, and/or scientific analysis of the
exhibit will be contested at trial together with a statement delineating
why the authenticity, chain of custody, and/or scientific analysis of the
exhibit is being challenged and a certification that the challenge is being
made in good faith.
3. The Government shall provide all material to be disclosed under
Giglio v. United States, 405 U.S. 150 (1972), and its progeny, on or
before ______________________ and shall, if it agrees to do so, provide any
material to be provided under the Jencks Act, 18 U.S.C. §3500, on or
before the same date.
4. The Defendant, if he/she agrees to do so, shall produce all
“reverse Jencks” that is required to be disclosed under Federal Rule of
Criminal Procedure 26.2 on or before _______________________.
5. If the Government intends to offer any Rule 404(b) evidence, the
Government shall provide notice of this evidence in the form delineated
in Federal Rule of Evidence 404(b)(2)(A) on or before
______________________.
6. If the defendant intends to offer any “reverse Rule 404(b)”
evidence, the defendant shall provide notice of this evidence in the form
delineated in Federal Rule of Evidence 404(b)(2)(A) on or before on or
before _____________________.
7. The parties shall file any in limine motions, addressed to the
admissibility of evidence, on or before _________________; responses to
such motions may be filed on or before __________________; replies, if any,
may be filed on or before _________________; and oral argument on such
motions shall be held on __________________ at _____ a.m./p.m..
8. The parties shall file any voir dire requests on or before
_______________________.
9. The Government shall file any requests to charge addressed to
(a) preliminary instructions to the jury, and (b) the elements of the
offenses at issue, on or before _____________________.
10. The Defendant shall file any requests to charge addressed to (a)
preliminary instructions to the jury, and (b) the elements of the offenses
at issue, on or before ______________________.
11. The parties shall file all other requests to charge on or before
_______________________.
12. Jury selection shall commence on _______________________, at
______ a.m..
13. Trial shall commence on _______________________, at _____ a.m..
_____________________________
Honorable
United States District Judge
EXHIBIT 8
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA Criminal No.
ORDER FOR CONTINUANCE
vs.
[Defendant’s Name]
This matter having come before the Court on the joint application of the
United States, by Paul J. Fishman, United States Attorney for the District of
New Jersey (_________________________ Assistant U.S. Attorney, appearing), and
defendant _________________________ (_____________________, Esq., appearing),
for an order granting a continuance of proceedings in the above-captioned
matter in order to allow the parties to fully prepare for trial following the final
pretrial conference; and the defendant being aware that he otherwise has the
right to have this matter brought to trial within 70 days of the date of his
appearance before a judicial officer of this court pursuant to 18 U.S.C. §
3161(c)(1), not including time that has been excluded from computation
pursuant to the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq.; and the
defendant having consented to such continuance and having waived such
right, and for good cause shown,
IT IS THE FINDING OF THIS COURT that this action should be
continued for the following reasons:
1. The parties require additional time to complete pretrial discovery,
including the exchange of exhibits, and to file appropriate pretrial motions,
voir dire requests, and proposed jury instructions, and to otherwise prepare for
trial.
2. The grant of a continuance will ensure that, taking into account
the exercise of due diligence, counsel, including defense counsel, have
sufficient time to complete these activities, including preparing for trial.
3. As a result of the foregoing, pursuant to 18 U.S.C. § 3161(h)(7)(A)
and (h)(7)(B)(iv), the ends of justice served by granting a continuance outweigh
the best interests of the public and the defendant in a speedy trial.
IT IS, therefore, on this ______ day of _____________________, 20____,
(1) ORDERED that this action be, and hereby is, continued until
__________________________, 20____; and it is further
(2) ORDERED that the period from the date of this order through
__________________________, 20____ be and it hereby is excluded in computing
time under the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq.
Honorable
United States District Judge
Consented to as to form and entry:
____________________________________
Assistant U.S. Attorney
____________________________________
Counsel for defendant
