Order — In re: Federal Rule of Criminal Procedure 5(f) (S.D.N.Y., Dkt. 6, October 28, 2021)

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United States District Judge Alison J. Nathan of the Southern District of New York entered this order on October 28, 2021, as Document 6 in Case 1:21-cr-00617-AJN, under Federal Rule of Criminal Procedure 5(f) and the Due Process Protections Act. It confirms that the Government must disclose to the defense all information "favorable to an accused" that is "material either to guilt or to punishment," including information that can be used to impeach a Government witness, promptly and on a continuing basis. The Government may apply to the Court for a modification if a disclosure would compromise witness safety or another substantial government interest. If the Government fails to comply, the Court may, among other things, grant a continuance, impose evidentiary sanctions, or dismiss charges before trial.

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Case 1:21-cr-00617-AJN Document 6 Filed 10/28/21 Page 1 of 2

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #;

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

IN RE: FEDERAL RULE OF CRIMINAL PROCEDURE 5(F) : ORDER

ALISON J. NATHAN, United States District Judge:

This Order is entered, pursuant to Federal Rule of Criminal Procedure 5(f) and the Due
Process Protections Act, Pub. L. No 116—182, 134 Stat. 894 (Oct. 21, 2020), to confirm the
Government’s disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), and its
progeny, and to summarize the possible consequences of violating those obligations.

The Government must disclose to the defense all information “favorable to an accused” that
is “material either to guilt or to punishment” and that is known to the Government. /d. at 87. This
obligation applies regardless of whether the information would itself constitute admissible evidence.
The Government shall disclose such information to the defense promptly after its existence becomes
known to the Government so that the defense may make effective use of the information in the
preparation of its case.

As part of these obligations, the Government must disclose any information that can be used
to impeach the trial testimony of a Government witness within the meaning of Giglio v. United
States, 405 U.S. 150 (1972), and its progeny. Such information must be disclosed sufficiently in
advance of trial in order for the defendant to make effective use of it at trial or at such other time as
the Court may order.

The foregoing obligations are continuing ones and apply to materials that become known to
the Government in the future. Additionally, if information is otherwise subject to disclosure, it

must be disclosed regardless of whether the Government credits it.
Case 1:21-cr-00617-AJN Document 6 Filed 10/28/21 Page 2 of 2

In the event the Government believes that a disclosure under this Order would compromise
witness safety, victim rights, national security, a sensitive law-enforcement technique, or any other
substantial government interest, it may apply to the Court for a modification of its obligations,
which may include in camera review or withholding or subjecting to a protective order all or part of
the information otherwise subject to disclosure.

For purposes of this Order, the Government includes all current or former federal, state, and
local prosecutors, law-enforcement officers, and other officers who have participated in the
prosecution, or investigation that led to the prosecution, of the offense or offenses with which the
defendant is charged. The Government has an affirmative obligation to seek from such sources all
information subject to disclosure under this Order.

If the Government fails to comply with this Order, the Court, in addition to ordering
production of the information, may:

(1) specify the terms and conditions of such production;

(2) grant a continuance;

(3) impose evidentiary sanctions;

(4) impose sanctions on any responsible lawyer for the Government;

(5) dismiss charges before trial or vacate a conviction after trial or a guilty plea; or

(6) enter any other order that is just under the circumstances.

SO ORDERED. Mie iste

Dated: October 28, 2021
New York, New York ALISON J. NATHAN
United States District Judge


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