FEDERAL COURTS CAN ORDER EARLY DISCOVERY
In an en banc decision, the 9th Circuit Court of Appeal (Fisher) upheld a district court's discretion, pursuant to Fed. R. Crim. P. 2 and 16, and its inherent authority, to order disclosure of the government's witness list and to hold the government to it.
The court can do so to allow for orderly trial.
The 9th Circuit therefore joins other circuits that have so held. The 9th Circuit also spent a lot of time discussing whether the governement could appeal the district court's order interlocutorily by only citing the barest of justifications ("not for delay" and "substantial proof" is material) under 3731. The 9th Circuit decides that following the sparse language, so long as it is certified by the U.S. Attorney is good enough. Concurring in judgment, Hawkins, Pregerson and Wardlaw would require more than the government's "say so."
U.S. v. W.R. Grace et al., No. 06-30192 (5-15-08) (en banc).
