WASHINGTON, DC - Criminal justice reform has been a hotly debated topic in the public arena lately. One critical area of possible reform is the requirements for pretrial discovery of expert witness testimony in criminal trials. Womble Bond Dickinson white collar criminal defense attorney Mark E. Schamel is working with a blue ribbon panel charged with examining such potential reforms.

Currently, Federal Rule of Criminal Procedure 16 only requires prosecutors to submit a written summary of expert witness testimony they plan to use at trial. The summary does not have to include specific facts, data or exhibits the expert intends to use and the disclosure dates vary.

Many practitioners feel this requirement is too vague and does not give the defense adequate time or opportunity to prepare a response, thus impeding the ability to defend in complex federal cases. A number of federal jurists and elected officials have suggested a requirement more in line with the civil rule, which requires expert witnesses to produce a more detailed report ahead of trial.

Schamel was an invited participant in the Advisory Committee on Criminal Rules Rule 16 Mini-Conference, which took place May 6 in Washington, DC. The Criminal Rules Committee Chair is United States District Court Judge Donald Molloy and the Subcommittee is chaired by Raymond Kethledge of the United States Circuit Court for the Sixth Circuit. The subcommittee is made up of other federal judges and law professors. Schamel was one of the six defense attorneys chosen from around the country to complement a number of United States Attorneys, First Assistant United States Attorneys and Senior Department of Justice prosecutors selected to address such questions as:

  • problems with pretrial disclosure of expert forensic information before trial?
  • problems with disclosure of non-forensic expert information before trial?
  • changes or practices that would prevent the problems you identify in (1) or (2) above? Examples of cases where such problems were avoided using particular changes or practices?
  • Should the requirements for disclosure of defense expert information to the government be the same or different than the government’s disclosure obligations to the defense? Why or why not?

Mark E. Schamel handles bet-the company investigations and white collar criminal defense litigation. He has represented individuals in some of the largest fraud cases in history, as well as a wide array of traditional criminal cases. Mark’s practice also involves all manner of enforcement matters, including representing clients before the Securities and Exchange Commission and other government regulatory agencies.