Written by: Gloria Kosir

Alison K. Guernsey, the Herschel G. Langdon Clinical Professor of Trial Advocacy and director of the Federal Criminal Defense Clinic, and Megan Graham, clinical associate professor, managing attorney of the Clinical Law Program, and director of the Technology Law Clinic, co-wrote a letter in support of amending Rule 15 of the Federal Rules of Criminal Procedure to provide for discovery depositions in federal criminal cases.

The letter states that the current rule creates an informational asymmetry that disadvantages defendants.

“Amending Rule 15 is necessary to mitigate this asymmetry and to ensure that criminal trials function as genuine tests of the evidence rather than exercises in strategic surprise. Moreover, amending Rule 15 would help alleviate (1) ethical tensions concerning witness and evidence access and (2) substantial barriers to adequately assessing whether and how the technologies that are relied on in criminal investigations work—and thus whether the evidence they generate should be relied on—before trial,” Guernsey and Graham explained.

The Advisory Committee on Criminal Rules decided to create a subcommittee to study the proposals to amend Rule 15 of the Federal Rules of Criminal Procedure. Guernsey and Graham’s letter is one of dozens of suggestions submitted to the Committee.