TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 14. Pretrial Discovery
Procedures for Discovery.
Automatic Discovery.
Mandatory Discovery for the Defendant. The prosecution shall disclose to the defense, and permit the defense to discover, inspect and copy, each of the following items and information at or prior to the pretrial conference, provided it is relevant to the case and is in the possession, custody or control of the prosecutor, persons under the prosecutor’s direction and control, or persons who have participated in investigating or evaluating the case and either regularly report to the prosecutor’s office or have done so in the case:
Any written or recorded statements, and the substance of any oral statements, made by the defendant or a co-defendant.
The grand jury minutes, and the written or recorded statements of a person who has testified before a grand jury.
Any facts of an exculpatory nature.
The names of the State’s prospective witnesses other than law enforcement witnesses.
The names of the State’s prospective law enforcement witnesses.
Intended expert opinion evidence.
Material and relevant police reports, photographs, tangible objects, all intended exhibits, reports of physical examinations of any person or of scientific tests or experiments, and statements of persons the party intends to call as witnesses.
A summary of identification procedures, and all statements made in the presence of or by an identifying witness that are relevant to the issue of identity or to the fairness or accuracy of the identification procedures.
Disclosure of all promises, rewards or inducements made to witnesses the party intends to present at trial.
Any body-worn camera recording, in-car camera recording, dispatch recording, or law enforcement radio transmission relating to the incident, arrest, or investigation, where such a recording exists and has been retained.
Any record generated or maintained by the in-game systems of this State relating to the defendant or to the incident, including arrest, booking, citation, detention, warrant, dispatch, and property records, and any entry made in the in-game warrants system under Rule 6(a)(3) or Rule 44(a)(2).
The criminal record of the defendant, and the criminal record of any person the State intends to call as a witness, and any pending charge, probation, or community control status of such a witness.
Any electronically stored information within Rule 14(a)(9) that falls within any other item of this subdivision.
Reciprocal Discovery for the Prosecution. Following the State’s delivery of all discovery required pursuant to subdivision (a)(1)(A) or court order, and on or before a date agreed to between the parties, or in the absence of such agreement a date ordered by the court, the defendant shall disclose to the prosecution and permit the State to discover, inspect, and copy any material and relevant evidence discoverable under subdivision (a)(1)(A)(vi), (vii), (ix), (x), (xi), and (xiii) which the defendant intends to offer at trial, including the usernames and statements of those persons whom the defendant intends to call as witnesses at trial.
Time for Automatic Discovery. The periods prescribed by this subdivision are fixed so that discovery is completed within the seventy-two (72) hour pre-trial period allowed by Rule 46.
The State shall make the disclosures required by subdivision (a)(1)(A) not later than twenty-four (24) hours after arraignment, and in every case at or before the pretrial conference ordered under Rule 11(a).
The defendant shall make the disclosures required by subdivision (a)(1)(B) not later than twenty-four (24) hours after the State files its Certificate of Compliance, and in every case at or before the pretrial hearing ordered under Rule 11(b).
Every period prescribed by this rule runs continuously in hours from the timestamp recorded for the triggering event, in Coordinated Universal Time. There is no court-day calendar, no filing cutoff hour, and no exclusion for any day of the week. The electronic filing system computes no period under this rule and gives no notice that a period has run; each period is self-executing and is enforced only on the motion of a party or on the court’s own motion.
Where a period is keyed to a filing, it runs from the moment the electronic filing system records the complete set of documents comprising that filing as received. A submission that remains tendered and incomplete has not been filed and starts no period.
Motions for Discovery. The defendant may move, and following its filing of the Certificate of Compliance the State may move, for discovery of other material and relevant evidence not required by subdivision (a)(1) within the time allowed by Rule 13(d)(1).
Contents. A motion under this subdivision shall describe each item or category sought with particularity, state the facts showing its relevance and materiality, state that the item is not obtainable under subdivision (a)(1), and state what efforts the moving party has made to obtain it from the adverse party.
Response. The adverse party shall respond within twenty-four (24) hours of service, stating as to each item whether it is in that party’s possession, custody, or control, whether it will be produced, and the ground of any objection. A general objection is no objection.
Hearing. The motion shall be heard as provided in Rule 13(e)(1).
Order. An order granting discovery shall identify each item ordered produced, fix the time and manner of production, and state whether production is subject to a protective order under subdivision (a)(6).
Certificate of Compliance. When a party has provided all discovery required by this rule or by court order, it shall file with the court a Certificate of Compliance. The certificate shall state that, to the best of its knowledge and after reasonable inquiry, the party has disclosed and made available all items subject to discovery other than reports of experts, and shall identify each item provided. If further discovery is subsequently provided, a supplemental certificate shall be filed with the court identifying the additional items provided.
Contents. The certificate shall identify each item by a description sufficient to distinguish it, shall state the date and time in Coordinated Universal Time on which it was produced and the manner of production, and, where the item was produced by filing, shall state the Bates number of the filing through which it was produced.
Filing. The certificate is filed through the electronic filing system as provided in Rule 32. It is filed when the system records the complete set of documents comprising the filing as received, and it is served upon the other participants in the case by the system upon the clerk’s acceptance of the filing. No separate transmission by the filer and no certificate of service is required.
Effect. A Certificate of Compliance is not a substitute for production. A certificate that identifies an item not in fact produced is a violation of this rule and subjects the certifying party and counsel to sanctions under subdivision (c) and Rule 48.
Time. Each party shall file its certificate within twenty-four (24) hours of completing the production it certifies, and in every case at or before the compliance hearing held under Rule 11(c).
Continuing Duty. If either the defense or the prosecution subsequently learns of additional material which it would have been under a duty to disclose or produce pursuant to any provisions of this rule at the time of a previous discovery order, it shall promptly notify the other party of its acquisition of such additional material and shall disclose the material in the same manner as required for initial discovery under this rule.
What Is Prompt. Notice and disclosure are prompt if made within twenty-four (24) hours of acquiring the material. If trial has commenced, notice and disclosure shall be made immediately upon acquisition, and the party shall bring the matter to the court’s attention before the material is used.
Exculpatory Material. The duty to disclose facts of an exculpatory nature under subdivision (a)(1)(A)(iii) is not discharged by the filing of a Certificate of Compliance, is not conditioned upon a request, and is not excused by the prosecutor’s assessment of the weight or credibility of the material.
Work Product. This rule does not authorize discovery by a party of those portions of records, reports, correspondence, memoranda, or internal documents of the adverse party which are only the legal research, opinions, theories, or conclusions of the adverse party or its attorney and legal staff, or of statements of a defendant, signed or unsigned, made to the attorney for the defendant or the attorney’s legal staff.
Facts Not Protected. This subdivision protects no fact. The identity of a witness, the existence and location of physical evidence or of electronically stored information, and the underlying facts known to a party are not work product, however recorded.
Substantially Verbatim Recitals. A writing prepared by counsel or an agent of counsel is not work product to the extent that it is a substantially verbatim recital of an oral declaration of a person other than the party or its counsel, and to that extent it is a statement within subdivision (d).
Waiver. A party who offers work product in evidence, or who relies upon it to support a motion, waives the protection of this subdivision as to the subject matter disclosed.
In Camera Determination. Where a claim of work product is disputed, the court may examine the material and shall enter findings identifying the material withheld by description. Material withheld shall be described sufficiently to permit the claim to be tested, without disclosing the protected content.
Protective Orders. Upon a sufficient showing, the judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. The judge may alter the time requirements of this rule. The judge may, for cause shown, grant discovery to a defendant on the condition that the material to be discovered be available only to counsel for the defendant. This provision does not alter the allocation of the burden of proof with regard to the matter at issue, including privilege.
Available Terms. An order under this subdivision may, among other terms, (i) limit disclosure of the material to counsel of record and to persons counsel identifies to the court as necessary to the preparation of the case; (ii) forbid the copying, transmission, republication, or posting of the material outside the case’s proceeding communications; (iii) forbid disclosure of the username, contact information, or other identifying data of a victim or witness upon a showing of a risk of harm, intimidation, or interference; (iv) defer disclosure until a stated event; and (v) require the return or destruction of the material at the conclusion of the case.
The Order Binds Persons. An order under this subdivision operates against the persons it names and against counsel of record. It is enforced by contempt under Rule 43 and by sanctions under Rule 48. It does not and cannot seal, redact, unfile, or withdraw any document, and it does not remove a filing from the docket.
Confidentiality of the Record. The electronic filing system provides no document-level sealing and no redaction. Confidentiality attaches to a case by its type and to no document individually. A filing accepted for filing in a case that is not of a confidential type is public. A protective order is therefore not a substitute for withholding sensitive material from a filed document.
Discovery Is Exchanged, Not Filed. Material produced under this rule is delivered to the adverse party as provided in subdivision (a)(9)(D) and shall not be filed with the court, except when offered in evidence, when appended to a motion to which it is material, or when the court orders it filed. A party who files material subject to a protective order without leave violates the order.
Amendment of Discovery Orders. Upon motion of either party made subsequent to an order of the judge pursuant to this rule, the judge may alter or amend the previous order or orders as the interests of justice may require. The judge may, for cause shown, affirm a prior order granting discovery to a defendant upon the additional condition that the material to be discovered be available only to counsel for the defendant.
Waiver; Agreement of the Parties. A party may waive the right to discovery of an item, or to discovery of the item within the time provided in this Rule. The parties may agree to reduce or enlarge the items subject to discovery pursuant to subsections (a)(1)(A) and (a)(1)(B). Any such waiver or agreement shall be in writing and signed by the waiving party or the parties to the agreement, shall identify the specific items included, and shall be served through the proceeding communications. No waiver or agreement shall enlarge the period allowed for pre-trial proceedings by Rule 46 or the period prescribed by Rule 19 except as Rule 19(h) provides.
Electronically Stored Information.
Definition. “Electronically stored information” means information created, transmitted, or stored in an electronic medium and retrievable in perceivable form, and includes:
messages, replies, attachments, images, embedded links, pinned content, and channel or direct-message logs on the Discord platform, whether in the case’s proceeding communications or in any other channel or conversation;
records generated or maintained by the in-game systems of this State, including arrest, booking, citation, detention, dispatch, property, vehicle, and warrant records, and entries in the in-game warrants system;
body-worn camera, in-car camera, dispatch, and law enforcement radio recordings, where such recordings exist and have been retained, including the transmission clearing a search warrant under Rule 44(c)(2);
photographs, screen captures, screen recordings, and video recordings of any kind; and
account records identifying a username, including records of account creation, name changes, and prior usernames.
Duty to Preserve. Upon the arrest of a person, or upon the return of an indictment or the authorization of a criminal information, whichever is earlier, each party, and every agency whose records are within the possession, custody, or control of the prosecution as defined in subdivision (a)(1)(A), shall take reasonable steps to preserve electronically stored information relevant to the case. Reasonable steps include preserving channel and conversation logs against deletion, preserving recordings against routine overwriting or expiration, and instructing persons under the party’s direction not to delete or alter such information. Loss of such information is governed by Rid. R. Evid. 1101 and by subdivision (c) of this rule.
Form of Production.
A party shall produce electronically stored information in the form in which it is ordinarily maintained or in a form that is reasonably usable.
Material from the Discord platform shall be produced as a complete and unedited export or transcript of the channel or conversation for the range disclosed, identifying the channel or conversation, the account of each speaker by username, and the date and time of each message in Coordinated Universal Time. Where an export or transcript can be obtained, a screen capture alone is not a sufficient production. Where only a screen capture can be obtained, the producing party shall so state and shall identify the account from which and the time at which the capture was made.
A recording shall be produced in the form in which it was recorded, without editing, and with any accompanying metadata the producing party possesses. Where the producing party has prepared a transcript or summary, the transcript or summary shall be produced in addition to and not in place of the recording.
Records of the in-game systems shall be produced in the form in which those systems render them, identifying the system, the record, and the time of retrieval.
A party need not produce the same electronically stored information in more than one form.
Manner of Delivery. Production is made to the adverse party through the proceeding communications or by a means the parties agree upon in writing. Where an item is transmitted through the electronic filing system, no document shall exceed fifty (50) megabytes; there is no limit on the number of documents in a filing. Where an item cannot be transmitted because of its size or format, the producing party shall so state in its Certificate of Compliance and shall make the item available for inspection, stating where, when, and by what means it may be inspected, and shall permit the adverse party a reasonable opportunity to inspect it.
Information Not Reasonably Accessible. A party need not produce electronically stored information that it identifies as not reasonably accessible because of undue burden or because the information is no longer retained by the system that generated it. The party shall identify the category of information withheld and state the reason. On motion, the court may nevertheless order production or an equivalent form of proof, on such terms as are just.
Certification. A Certificate of Compliance covering electronically stored information shall state, as to each export or extraction, the source, the range of dates and times covered, and the date and time of extraction, in Coordinated Universal Time.
Discovery and the Public Record. Material produced under this rule does not become part of the record of the case unless it is filed and accepted for filing. Filings that have been filed or accepted for filing on a case that is not of a confidential type are public; filings that remain tendered, and filings that have been rejected, are not shown publicly, and the reason for a rejection is not shown publicly. A party shall not include in any filed document the residential address, contact information, telephone number, electronic mail address, or other sensitive identifying data of a victim or witness beyond the username necessary to identify that person. The electronic filing system provides no redaction, no document-level sealing, and no means of amending or withdrawing a document once received. The clerk may reject a filing that contains such material. The only cure for a filed document that contains such material is a corrected refiling, which bears its own later filing date, and the original filing remains in the record.
Special Procedures.
Notice of Alibi.
Notice by Defendant. The judge may, upon written motion of the State filed pursuant to subdivision (a)(2) of this rule, stating the time, date, and place at which the alleged offense was committed, order that the defendant serve upon the prosecutor a written notice, signed by the defendant, of his or her intention to offer a defense of alibi. The notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the usernames of the witnesses upon whom the defense intends to rely to establish the alibi.
Disclosure of Information and Witness. Within seventy-two hours of service of the defendant’s notice of alibi, the State shall serve upon the defendant a written notice stating the names and addresses of witnesses upon whom the prosecutor intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant’s alibi witnesses.
Continuing Duty to Disclose. If prior to or during trial a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subdivision (b)(1)(A) or (B), that party shall promptly notify the adverse party or its attorney of the existence and identity of the additional witness.
Failure to Comply. Upon the failure of either party to comply with the requirements of this rule, the judge may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at the scene of the alleged offense. This rule shall not limit the right of the defendant to testify.
Exceptions. For cause shown, the judge may grant an exception to any of the requirements of subdivisions (b)(1)(A) through (D) of this rule.
Inadmissibility of Withdrawn Alibi. Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with that intention, is not admissible in any civil or criminal proceeding against the person who gave notice of that intention.
Notice of the Defense of Lack of Criminal Responsibility.
Notice by Defendant. A defendant who intends to offer a defense of lack of criminal responsibility, or to offer expert evidence of a mental condition bearing upon guilt or upon the existence of a state of mind that is an element of the offense, shall serve written notice upon the prosecutor and shall file the notice with the court, not later than the pretrial conference or, for cause shown, at such later time as the judge allows.
Contents. The notice shall state the defense relied upon, identify by username each expert the defendant intends to call, and state the substance of the opinion each expert is expected to give.
Examination. Upon the filing of a notice under this subdivision, the court on motion of the State may order the defendant to submit to an examination. The defendant retains the right to refuse to answer any question during a court-ordered examination for criminal responsibility, as provided by Rid. R. Evid. 505(a)(3).
Reciprocal Disclosure. Within twenty-four (24) hours of service of the defendant’s notice, the State shall disclose the username of each expert it intends to call in rebuttal and the substance of the opinion each is expected to give.
Failure to Comply. Upon the failure of either party to comply with this subdivision, the judge may exclude the testimony of any undisclosed expert. The judge shall not exclude the testimony of the defendant.
Inadmissibility of Withdrawn Notice. Evidence of an intention to rely upon a defense of lack of criminal responsibility, later withdrawn, or of statements made in connection with that intention, is not admissible in any civil or criminal proceeding against the person who gave notice of that intention.
Notice of Other Affirmative Defense. A defendant who intends to rely at trial upon justification as provided by 6 R. Stat. § 122.001, duress as provided by 6 R. Stat. § 121.501, consent as provided by 6 R. Stat. § 121.504, entrapment as provided by 6 R. Stat. § 121.702, or any other affirmative defense as to which the defendant bears a burden of proof or of production, shall so notify the prosecutor in writing at or before the pretrial conference, identifying the defense and the usernames of the witnesses upon whom the defendant intends to rely. The remedy for a failure to give notice is a continuance or such other order as is just; the judge shall not exclude the testimony of the defendant, and shall not exclude evidence of an affirmative defense unless the failure was in bad faith and the State is prejudiced. Where the defense is entrapment, the issue shall be tried by the court in the absence of the jury, as 6 R. Stat. § 121.702 requires.
Sanctions for Noncompliance.
Relief for Nondisclosure. For failure to comply with any discovery order issued or imposed pursuant to this rule, the court may make a further order for discovery, grant a continuance, or enter such other order as it deems just under the circumstances.
Exclusion of Evidence. The court may in its discretion exclude evidence for noncompliance with a discovery order issued or imposed pursuant to this rule. Testimony of the defendant and evidence concerning the defense of lack of criminal responsibility which is otherwise admissible cannot be excluded except as provided by subdivision (b) of this rule.
Factors. In selecting a sanction the court shall consider the reason for the noncompliance, whether it was wilful, the degree of prejudice to the adverse party, whether the prejudice can be cured by a lesser remedy, the effect upon the periods prescribed by Rule 19 and Rule 46, and the interest in the just determination of the proceeding.
Nondisclosure of Exculpatory Material. Where the State has failed to disclose material within subdivision (a)(1)(A)(iii), the court shall order immediate disclosure and shall grant such further relief as the prejudice requires, which may include a continuance, the striking of testimony, the exclusion of related evidence, an instruction to the fact finder, a new trial where the failure is discovered after verdict, or dismissal where no lesser remedy will cure the prejudice.
Loss or Destruction of Evidence. Where evidence, including electronically stored information subject to subdivision (a)(9)(B), has been lost or destroyed, the court may impose sanctions as provided by Rid. R. Evid. 1101. Where the court finds that a party acted with the intent to deprive the adverse party of the use of the information, the court may presume that the lost information was unfavorable to that party, may so instruct the fact finder in a trial by jury, and in the case of the State may dismiss the charge affected.
Sanctions Against Counsel. A wilful violation of this rule by counsel subjects counsel to sanctions under Rule 48, including citation for contempt or the imposition of costs or a fine, in addition to any order entered under this subdivision.
Findings. The court shall state on the record the noncompliance found and the reason for the sanction imposed.
Definitions.
Statement. The term “statement,” as used in this rule, means:
a writing made by a person having percipient knowledge of relevant facts and which contains such facts, other than drafts or notes that have been incorporated into a subsequent draft or final report; or
a written, stenographic, mechanical, electrical, or other recording, or transcription thereof, which is a substantially verbatim recital of an oral declaration and which is recorded contemporaneously with the making of the oral declaration except that a computer assisted real time translation, or its functional equivalent, made to assist a deaf or hearing impaired person, that is not transcribed or permanently saved in electronic form, shall not be considered a statement.
A message transmitted on the Discord platform, and a transmission on a law enforcement radio channel that has been recorded, is a statement within subdivision (d)(1)(B).
Possession, Custody, or Control. An item is within a party’s possession, custody, or control if the party holds it, or has the practical ability to obtain it from a person or agency described in subdivision (a)(1)(A), whether or not the party has previously requested it.
Produce. To “produce” means to deliver the item, or a copy of it in the form required by subdivision (a)(9)(C), to the adverse party, or where the item cannot be delivered, to make it available for inspection as provided in subdivision (a)(9)(D).