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Idaho Criminal Rule 16. Discovery and Inspection.

(a)  Automatic disclosure of evidence and material by the prosecution. As soon as practicable following the filing of charges against the accused, the prosecuting attorney shall disclose to defense counsel any material or information within the prosecuting attorney's possession or control, or which thereafter comes into the prosecuting attorney's possession or control, which tends to negate the guilt of the accused as to the offense charged or which would tend to reduce the punishment therefor. The prosecuting attorney's obligations under this paragraph extend to material and information in the possession or control of members of prosecuting attorney's staff and of any others who have participated in the investigation or evaluation of the case who either regularly report, or with reference to the particular case have reported, to the office of the prosecuting attorney. In addition, the office of the prosecuting attorney shall disclose the general nature of evidence of other crimes, wrongs, or acts, it intends to introduce at trial in accordance with the provisions of Rule 404(b) of the Idaho Rules of Evidence.

    

(b)  Disclosure of evidence and materials by the prosecution upon written request. Except as otherwise hereinafter provided in this rule, the prosecuting attorney shall at any time following the filing of charges, upon written request by the defendant, disclose the following information, evidence and material to the defendant, which shall not be filed with the court, unless otherwise ordered. 

    

(1)  Statement of defendant. Upon written request of a defendant the prosecuting attorney shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the state, the existence of which is known or is available to the prosecuting attorney by the exercise of due diligence; and also the substance of any relevant, oral statement made by the defendant whether before or after arrest to a peace officer, prosecuting attorney or the prosecuting attorney's agent; and the recorded testimony of the defendant before a grand jury which relates to the offense charged. 

    

(2)  Statement of a co-defendant. Upon written request of a defendant the prosecuting attorney shall permit the defendant to inspect and copy or photograph any written or recorded statements of a co-defendant; and the substance of any relevant oral statement made by a co-defendant whether before or after arrest in response to interrogation by any person known by the co-defendant to be a peace officer or agent of the prosecuting attorney. 

    

(3)  Defendant's prior record. Upon written request of the defendant, the prosecuting attorney shall furnish the defendant such copy of the defendant's prior criminal record, if any, as is then or may become available to the prosecuting attorney. 

    

(4)  Documents and tangible objects. Upon written request of the defendant, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, which are in the possession, custody or control of the prosecuting attorney and which are material to the preparation of the defense, or intended for use by the prosecutor as evidence at trial, or obtained from or belonging to the defendant. 

    

(5)  Reports of examinations and tests. Upon written request of the defendant the prosecuting attorney shall permit the defendant 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, within the possession, custody or control of the prosecuting attorney, the existence of which is known or is available to the prosecuting attorney by the exercise of due diligence. 

    

(6)  State witnesses. Upon written request of the defendant the prosecuting attorney shall furnish to the defendant a written list of the names and addresses of all persons having knowledge of relevant facts who may be called by the state as witnesses at the trial, together with any record of prior felony convictions of any such person which is within the knowledge of the prosecuting attorney. The prosecuting attorney shall also furnish upon written request the statements made by the prosecution witnesses or prospective prosecution witnesses to the prosecuting attorney or the prosecuting attorney's agents or to any official involved in the investigatory process of the case unless a protective order is issued as provided in Rule 16(k).

 

(7)  Expert witnesses.  Upon written request of the defendant the prosecutor shall provide a written summary or report of any testimony that the state intends to introduce pursuant to Rules 702, 703 or 705 of the Idaho Rules of Evidence at trial or hearing. The summary provided must describe the witnessís opinions, the facts and data for those opinions, and the witness's qualifications. Disclosure of expert opinions regarding mental health shall also comply with the requirements of I.C. § 18-207. The prosecution is not required to produce any materials not subject to disclosure under paragraph (f) of this Rule. This subsection does not require disclosure of expert witnesses, their opinions, the facts and data for those opinions, or the witness's qualifications, intended only to rebut evidence or theories that have not been disclosed under this Rule prior to trial. 

    

(8)  Police reports. Upon written request of the defendant the prosecuting attorney shall furnish to the defendant reports and memoranda in possession of the prosecuting attorney which were made by a police officer or investigator in connection with the investigation or prosecution of the case. 

    

(9)  Disclosure by order of the court. Upon motion of the defendant showing substantial need in the preparation of the defendant's case for additional material or information not otherwise covered by this Rule 16(b), and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means, the court in its discretion may order the additional material or information to be made available to the defendant. The court may, upon the request of any person affected by the order, vacate or modify the order if compliance would be unreasonable or oppressive. 

    

(c)  Disclosure of evidence by the defendant upon written request.  Except as otherwise hereinafter provided in this rule, the defendant shall at any time following the filing of charges against the defendant, upon written request by the prosecuting attorney, disclose the following information, evidence and material to the prosecuting attorney, which shall not be filed with the court, unless otherwise noted.

    

(1)  Documents and tangible objects. Upon written request of the prosecuting attorney, the defendant shall permit the prosecutor to inspect and copy or photograph books, papers, documents, photographs, tangible objects or copies or portions thereof, which are within the possession, custody or control of the defendant, and which the defendant intends to introduce in evidence at the trial. 

    

(2)  Reports of examinations and tests. Upon written request of the prosecuting attorney, the defendant shall permit the state 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, within the possession or control of the defendant, which the defendant intends to introduce in evidence at the trial, or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to testimony of the witness. 

    

(3)  Defense witness. Upon written request of the prosecuting attorney, the defendant shall furnish the state a list of names and addresses of witnesses the defendant intends to call at trial.

 

(4)  Expert witnesses.  Upon written request of the prosecutor the defendant shall provide a written summary or report of any testimony that the defense intends to introduce pursuant to Rules 702, 703 or 705 of the Idaho Rules of Evidence at trial or hearing.  The summary provided must describe the witness’s opinions, the facts and data for those opinions and the witness’s qualifications.  Disclosure of expert opinions regarding mental health shall also comply with the requirements of I.C. § 18-207.  The defense is not required to produce any materials not subject to disclosure under paragraph (g) (h) of this Rule, or any material otherwise protected from disclosure by his constitutional rights. 

    

(d) Redacting protected information from responses to discovery.  The party providing discovery may redact protected information from the information or material provided.

 

(1) Protected information means:

 

A.  Contact information.  The  home addresses, business addresses, telephone numbers (including cell phones), and email addresses of an alleged victim, or of a witness, or of the spouse, children, or other close family members of the alleged victim or witness, and the places where any of such persons regularly go, such as schools and places of employment and worship. 

 

B.  Personal identifying information.  The dates of birth and social security numbers of any persons other than the defendant.

 

C.  Private information.  Personal identification numbers (PINs), passwords, financial account numbers, information relating to financial transaction cards, and medical information protected by federal law that is not directly related to the crime charged.

     

(2) A prosecuting attorney who redacts protected information shall follow the following procedure:

 

A.  If the defendant is represented by counsel, the prosecuting attorney shall serve defendant's counsel with a redacted copy of the discovery printed on white paper simultaneously with an unredacted copy of the discovery printed on paper of a color that is clearly distinguishable from white.  The defendant's attorney, including appellate counsel, shall not disclose the protected information to the defendant or to a member of the defendant's family without the consent of the prosecuting attorney or an order of the court upon a showing of need.

 

B.  If the defendant is not represented by counsel, the prosecuting attorney shall serve the defendant with a redacted copy of the discovery and, within seven (7) days of doing so, even if the disclosure was not in response to a discovery request, shall file with the court and serve upon the defendant a motion for a protective order with respect to the redacted information.

     

(3) A defense attorney or defendant who redacts protected information shall serve the prosecuting attorney with a redacted copy of the discovery printed on white paper simultaneously with an unredacted copy of the discovery printed on paper of a color that is clearly distinguishable from white.  The state's attorney, including appellate counsel, shall not disclose the protected information to the alleged victim or to a member of the alleged victimís family without the consent of the defendant or an order of the court upon a showing of need.

 

(e)  Failure to make written request, waiver.  

    

(1)  Any request by a party for information, evidence or material under subsections (b) and (c) of this rule must be in writing with the original document filed with the court and a copy served upon the prosecuting attorney or the defense attorney. Failure to so file and serve such request in writing, shall constitute a waiver of the right to discovery under subsections (b) and (c) of this rule. If no written request for discovery is so filed and served by the defendant, the defendant shall not be permitted to raise as error in any subsequent proceeding the failure of the prosecution to disclose the information described in subsection (b) of this rule. 

    

(2)  Form of request. A request for the information, evidence and material under subsection (b) of this rule shall be in substantially the following form: 

Click here for form.    

     

(f)  Response to request, failure to file a response.  

    

(1)  Response to request. The party upon whom a request has been served shall file and serve a written response within fourteen (14) days of service of the request by filing the original copy with the court and serving a copy upon the opposing party which shall state one or more of the following: 

    

A.  That the response has already been complied with and that the inquiring party has been furnished the information, evidence and material listed in the request. 

    

B.  That there is no objection to the discovery of the information, evidence and materials sought by the request and that the opposing party shall be permitted discovery at a time and place certain. 

    

C.  That the responding party objects to part or all of the information, evidence and materials sought to be discovered in the response, which objection shall be specific and shall state the grounds for the objection. 

    

(2)  Failure to comply. Unless otherwise ordered by the court upon the showing of good cause or excusable neglect, the failure to file and serve a response within the time prescribed by this rule shall constitute a waiver of any objections to the request and shall be grounds for the imposition of sanctions by the court. 

    

(3)  A response to a request shall be in substantially the following form: 

              

Click here for form.

      

(g)  Prosecution information not subject to disclosure.  

    

(1)  Work product. Disclosure shall not be required of legal research or of records, correspondence, reports of memoranda to the extent that they contain the opinions, theories or conclusions of the prosecuting attorney or members of the prosecuting attorney's legal staff. 

    

(2)  Informants. Disclosure shall not be required of an informant's identity unless such informant is to be produced as a witness at a hearing or trial, subject to any protective order under Rule 16(k) or a disclosure order under Rule 16(b)(8). 

    

(h)  Defense information not subject to disclosure. Except as to scientific or medical reports, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or defendant's attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant or state or defense witnesses, or prospective state or defense witnesses to the defendant, defendant's agents or attorneys. 

    

(i)  Failure to call witnesses. The fact that a witness's name is on a list furnished under this rule and that witness is not called shall not be commented upon at the trial. 

    

(j)  Continuing duty to disclose. If, subsequent to compliance with a request issued pursuant to this rule, and prior to or during trial, a party discovers additional evidence or the evidence of an additional witness or witnesses, or decides to use additional evidence, witness or witnesses, such evidence is automatically subject to discovery and inspection under such prior request and such party shall promptly notify the other party or that party's attorney and the court of the existence of such additional evidence or the names of such additional witness or witnesses in order to allow the other party to make an appropriate request for additional discovery or inspection. 

    

(k)  Orders for discovery. If a party has failed to comply with a request for discovery under this rule, the court upon motion of a party, may, order a party to permit the discovery or inspection, prohibit the discovery of part or all of the information, evidence or material sought to be discovered, or enter such other order as it deems just in the circumstances. An order of the court granting discovery under this rule shall specify the time, place and manner of making the discovery and inspection permitted and prescribe such terms and conditions as are just. 

    

(l)  Protective orders. Upon a sufficient showing, after notice and hearing, the court may at any time order that the discovery or inspection be denied, restricted or deferred, or make such other order as is appropriate, including an order denying a request for disclosure of names and addresses of witnesses or others who may be subjected to economic, physical or other harm or coercion. The court may permit a party to make such showing in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief after such showing, the entire text of the party's statement shall be sealed and preserved in the record of the court to be made available to the appellate court in the event of an appeal. 

 

(m) Sexually exploitative material.

(1) Any property or material that constitutes or is alleged to constitute sexually exploitative material as defined in I.C. § 18-1505B or I.C. § 18-1507 shall remain in the care custody, and control of either the court or a law enforcement agency.

 

(2) A court shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes or is alleged to constitute sexually exploitative material as defined in I. C. § 18-1505B or I. C. § 18-1507, so long as the state makes the property or material reasonably available to the defendant.

 

(3) For purposes of subsection (m)(2) of this rule, property or material shall be deemed to be reasonably available to the defendant if the state provides amply opportunity for inspection, viewing, and examination of the property or material by the defendant, defense counsel, and any individual the defendant may seek to qualify to furnish expert testimony at trial.

    

(Adopted December 27, 1979, effective July 1, 1980; am. February 20, 1980, effective July 1, 1980; amended March 27, 1989, effective July 1, 1989;amended March 9, 1999, effective July 1, 1999; amended March 28, 2007, effective July 1, 2007; amended February 9, 2012, effective July 1, 2012; amended November 20, 2012, effective January 1, 2013; amended October 6, 2013, effective January 1, 2014.)

As the Third Branch of Government, we provide access to justice through the timely, fair, and impartial resolution of cases.

 

Members of the
Idaho Supreme Court



Members of the
Idaho Court of Appeals

 

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