NCJ Number
82284
Journal
University of Cincinnati Law Review Volume: 50 Issue: 3 Dated: (1981) Pages: 495-557
Date Published
1981
Length
63 pages
Annotation
The application of work product rules in contemporary Federal criminal procedure is assessed, and a model work product rule is proposed.
Abstract
The work product rule holds that an attorney's trial preparation materials retain a qualified immunity during pretrial discovery. The Federal Rule of Criminal Procedure 16 contains such a work product rule, imposing an absolute prohibition on discovery of reports, memoranda, witness statements, and other internal documents made by an attorney or his/her agents in connection with the investigation, prosecution, or defense of a case. This article analyzes the essential aspects of the rule during pretrial discovery in Federal criminal cases and then examines the recent issues of work product protection at trial and at grand jury. It is argued that the work product rules in Federal criminal procedure provide overboard coverage for both prosecution and defense. Because of the societal interest in maximizing reciprocal pretrial discovery, it is recommended that the courts and Congress apply a more discriminating analysis to safeguard only those materials necessary for thorough preparation and presentation of the attorney's case. The model work product rule proposed offers a flexible compromise between the societal interest in maximizing pretrial criminal discovery and the attorney's interest in professional privacy. A total of 344 footnotes are listed. (Author summary modified)