The rules of discovery also incorporate ethical considerations and sanctions for the failure to disclose information as required. Failure to disclose required information may result in:

• A court order directing the disclosure or production.
• A motion to continue the case.
• A court order that limits or prohibits the party from introducing the undisclosed evidence.
• An order precluding the expert from testifying.
• Any other order authorized or deemed appropriate under the circumstances.

The U.S. Supreme Court decision, Brady v. Maryland, 373 U.S. 83 (1963), significantly impacts the discovery process. In Brady, the Court imposed a constitutional duty on prosecutors to disclose evidence that is favorable to the accused.

Withholding of exculpatory evidence by prosecutors may violate the due process clause of the Fifth Amendment to the Constitution and could result in a mistrial, retrial or dismissal. The obligation under Brady extends to laboratory and law enforcement personnel as well.

For witnesses testifying for the government in federal court, the cases of Giglio and Henthorn impose a duty to produce any information that supports the veracity of the witness or could be used to impeach the witness. States may also have similar obligations. Instead, the expert should always ask the retaining attorney what statutory rules or guidelines may apply in the relevant jurisdiction.

Back Forward