--- title: "Arraignment and Pretrial Disclosure" module_id: "MOD-ARRAIGNMENT-PRETRIAL-DISCLOSURE" url: "https://jason93.com/legal/federal-process/modules/20-pretrial/arraignment-and-pretrial-disclosure/" current_through: "2026-08-26" legal_review: "2026-08-25" links_checked: "2026-10-15" links_available: 11 links_checked_count: 11 license: "CC BY 4.0" --- # Arraignment and Pretrial Disclosure ## Verification boundary This module separates five sources that are often collapsed into “discovery”: Rule 16 party discovery, the constitutional *Brady* line, the Jencks Act, Rule 26.2 witness-statement production, and Rule 17 subpoenas. It supplies their nationwide text and Supreme Court boundaries. It does not set a universal *Brady* production date, decide whether a particular item is favorable or material, define the prosecution team for a specific investigation, resolve privilege or classified-information procedure, apply local discovery orders, or decide circuit-specific remedies and standards of review. ## Arraignment under Rule 10 Rule 10 requires an arraignment in open court at which the court ensures that the defendant has the indictment or information, reads it or states the substance of the charge, and asks the defendant to plead. [Fed. R. Crim. P. 10(a)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) A defendant charged by indictment or misdemeanor information may waive presence at arraignment only through a written waiver signed by the defendant and defense counsel that affirms receipt of the charging document and a not-guilty plea, and only if the court accepts it. [Fed. R. Crim. P. 10(b)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) Rule 10(c) permits arraignment by video teleconference only with the defendant's consent. [Fed. R. Crim. P. 10(c)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) ## Rule 16 party discovery Rule 16(a)(1) creates specified government-disclosure duties upon a defendant's request; it is not a general command to open every government file. [Fed. R. Crim. P. 16(a)(1)–(2)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) The statement provisions distinguish a relevant oral statement made in known-agent interrogation that the government intends to use at trial from the broader specified written, recorded, recorded-oral, and grand-jury statements covered by Rule 16(a)(1)(B). [Fed. R. Crim. P. 16(a)(1)(A)–(B)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) On request and subject to the rule's possession, knowledge, materiality, intended-use, and ownership conditions, Rule 16(a)(1) also covers the defendant's prior record, documents and objects, examination and test reports, and expert-witness information. [Fed. R. Crim. P. 16(a)(1)(D)–(G)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) For Rule 16 expert disclosures, the court by order or local rule must set a time sufficiently before trial to give the opposing side a fair opportunity to meet the evidence, and the current rule specifies the required opinions, bases, reasons, qualifications, prior publications, prior testimony, approval, signature, and supplementation information. [Fed. R. Crim. P. 16(a)(1)(G), (b)(1)(C)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) Rule 16(a)(2) ordinarily excludes internal government reports and memoranda and does not authorize discovery of prospective government-witness statements except as 18 U.S.C. § 3500 provides; Rule 16(a)(3) separately limits discovery of recorded grand-jury proceedings. [Fed. R. Crim. P. 16(a)(2)–(3)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf); [18 U.S.C. § 3500](https://www.govinfo.gov/link/uscode/18/3500) The defendant's reciprocal document, report, and expert duties arise only under the conditions stated in Rule 16(b), including a qualifying defense request followed by government compliance or the expert-disclosure request specified in the rule. [Fed. R. Crim. P. 16(b)(1)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) Rule 16(c) imposes a continuing duty to disclose newly discovered evidence or material before or during trial when it is subject to Rule 16 and the opposing party previously requested, or the court ordered, production. [Fed. R. Crim. P. 16(c)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) For good cause, Rule 16(d)(1) permits a court to deny, restrict, or defer discovery, or grant other appropriate relief, including on an ex parte written showing whose complete text the court must preserve under seal if relief is granted. [Fed. R. Crim. P. 16(d)(1)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) For a Rule 16 violation, the court may order discovery on just terms, grant a continuance, prohibit use of undisclosed evidence, or enter another order just under the circumstances; the rule does not make one sanction automatic for every violation. [Fed. R. Crim. P. 16(d)(2)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) No later than 14 days after arraignment, Rule 16.1(a) requires government and defense counsel to confer and try to agree on a timetable and procedures for Rule 16 disclosure; after that conference, either or both may ask the court to determine or modify disclosure arrangements. [Fed. R. Crim. P. 16.1](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) Rule 45(a) supplies federal criminal time computation, and Rule 45(b)(1) permits extension before expiration for good cause or after expiration for excusable neglect; Rule 16.1 is not among Rule 45(b)(2)'s listed no-extension provisions. [Fed. R. Crim. P. 45(a)–(b)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) ## Constitutional disclosure is a separate analysis Rule 16, the Jencks Act, and the *Brady* line are separate sources with different triggers and coverage, so an item may require independent classification under more than one source rather than treatment under a single generic “discovery” rule. [Fed. R. Crim. P. 16](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf); [18 U.S.C. § 3500](https://www.govinfo.gov/link/uscode/18/3500); [*Brady v. Maryland*, 373 U.S. 83, 86–88 (1963)](https://www.govinfo.gov/content/pkg/USREPORTS-373/pdf/USREPORTS-373-83.pdf) A true *Brady* violation has three components: evidence favorable to the accused, suppression by the government willfully or inadvertently, and resulting prejudice. [*Strickler v. Greene*, 527 U.S. 263, 281–82 (1999)](https://www.govinfo.gov/content/pkg/USREPORTS-527/pdf/USREPORTS-527-263.pdf); [*Brady*, 373 U.S. at 87](https://www.govinfo.gov/content/pkg/USREPORTS-373/pdf/USREPORTS-373-83.pdf) Evidence may be favorable because it is exculpatory or because it impeaches a prosecution witness; impeachment evidence is not categorically outside the constitutional disclosure rule. [*Strickler*, 527 U.S. at 281–82](https://www.govinfo.gov/content/pkg/USREPORTS-527/pdf/USREPORTS-527-263.pdf); [*United States v. Bagley*, 473 U.S. 667, 676–78 (1985)](https://www.govinfo.gov/content/pkg/USREPORTS-473/pdf/USREPORTS-473-667.pdf) The constitutional disclosure duty is not eliminated by the absence of a specific defense request: *Bagley* applies its materiality formulation to no-request, general-request, and specific-request nondisclosure. [*Bagley*, 473 U.S. at 682–83](https://www.govinfo.gov/content/pkg/USREPORTS-473/pdf/USREPORTS-473-667.pdf) The prosecution's good faith does not defeat a *Brady* claim, because suppression may be willful or inadvertent; prejudice and the other constitutional components remain required. [*Brady*, 373 U.S. at 87](https://www.govinfo.gov/content/pkg/USREPORTS-373/pdf/USREPORTS-373-83.pdf); [*Strickler*, 527 U.S. at 281–82](https://www.govinfo.gov/content/pkg/USREPORTS-527/pdf/USREPORTS-527-263.pdf) Suppressed favorable evidence is material under *Bagley* when there is a reasonable probability that disclosure would have produced a different result, meaning a probability sufficient to undermine confidence in the outcome. [*Bagley*, 473 U.S. at 682](https://www.govinfo.gov/content/pkg/USREPORTS-473/pdf/USREPORTS-473-667.pdf) *Kyles* requires materiality to be assessed collectively, not item by item, and makes clear that the inquiry is not a sufficiency-of-the-remaining-evidence test or a constitutional open-file mandate. [*Kyles v. Whitley*, 514 U.S. 419, 434–37 (1995)](https://www.govinfo.gov/content/pkg/USREPORTS-514/pdf/USREPORTS-514-419.pdf) The individual prosecutor must learn of favorable evidence known to others acting on the government's behalf in the case, including police, but determining who falls within that case-specific group requires the actual investigative relationships and controlling law. [*Kyles*, 514 U.S. at 437–38](https://www.govinfo.gov/content/pkg/USREPORTS-514/pdf/USREPORTS-514-419.pdf) *Giglio* treats an undisclosed promise of nonprosecution to a key government witness as credibility evidence within the due-process rule when the witness's reliability may determine guilt or innocence; it does not require a new trial for every item that might have been useful to the defense. [*Giglio v. United States*, 405 U.S. 150, 153–55 (1972)](https://www.govinfo.gov/content/pkg/USREPORTS-405/pdf/USREPORTS-405-150.pdf) For the promise at issue in *Giglio*, the prosecutor's office was treated as the government entity, so a promise by one assistant was attributable to the government despite the trial prosecutor's lack of personal knowledge. [*Giglio*, 405 U.S. at 154](https://www.govinfo.gov/content/pkg/USREPORTS-405/pdf/USREPORTS-405-150.pdf) The distinct *Napue* rule forbids the government from knowingly using false testimony or allowing known false testimony to go uncorrected, including falsehoods bearing on witness credibility; the materiality question asks whether there is any reasonable likelihood that the false testimony could have affected the jury's judgment. [*Napue v. Illinois*, 360 U.S. 264, 269–72 (1959)](https://www.govinfo.gov/content/pkg/USREPORTS-360/pdf/USREPORTS-360-264.pdf); [*Giglio*, 405 U.S. at 153–54](https://www.govinfo.gov/content/pkg/USREPORTS-405/pdf/USREPORTS-405-150.pdf) The Supreme Court authorities above do not supply one calendar date for every constitutional disclosure. The governing discovery order, local rule, trial schedule, proposed use of the evidence, and controlling circuit timing law must be checked without confusing *Bagley*'s post hoc materiality standard with a license to delay disclosure. ## Jencks Act and Rule 26.2 witness statements In a federal criminal prosecution, § 3500(a) bars subpoena, discovery, or inspection of a government or prospective government witness's statement in United States possession until that witness has testified on direct examination at trial. [18 U.S.C. § 3500(a)](https://www.govinfo.gov/link/uscode/18/3500) After a government witness testifies on direct, § 3500(b) requires the court, on the defendant's motion, to order production of a United States-possessed statement that relates to the testimony's subject matter and permits a reasonable recess for examination and preparation. [18 U.S.C. § 3500(b)](https://www.govinfo.gov/link/uscode/18/3500) If the government claims that part of a statement is unrelated to the testimony, § 3500(c) requires in camera inspection, excision of unrelated matter, delivery of the remainder, and preservation of withheld text for appellate review if the defendant objects. [18 U.S.C. § 3500(c)](https://www.govinfo.gov/link/uscode/18/3500) If the United States elects not to obey a § 3500 production order, subsection (d) requires striking the witness's testimony and continuing trial unless the court determines that the interests of justice require a mistrial. [18 U.S.C. § 3500(d)](https://www.govinfo.gov/link/uscode/18/3500) Section 3500(e) limits “statement” to a witness-signed or adopted writing, a substantially verbatim contemporaneous recording or transcription of the witness's oral statement, or the witness's grand-jury statement. [18 U.S.C. § 3500(e)](https://www.govinfo.gov/link/uscode/18/3500) Rule 26.2(a) is reciprocal: after a nondefendant witness testifies on direct, the court must, on motion by a party who did not call the witness, order the calling side to produce a possessed statement relating to the testimony's subject matter. [Fed. R. Crim. P. 26.2(a)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) Rule 26.2 governs production at trial, at a Rule 12 suppression hearing, and in the additional proceedings specified by Rules 5.1, 8.1, 32, 32.1, 46, and 50; disobedience requires striking the witness's testimony, with a mistrial if a government attorney disobeys and justice requires it. [Fed. R. Crim. P. 26.2(e), (g)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) ## Rule 17 subpoenas Rule 17(a) provides the form for a witness subpoena, and Rule 17(b) requires issuance on an indigent defendant's ex parte showing that the named witness is necessary to an adequate defense, with process costs and witness fees paid as for government witnesses. [Fed. R. Crim. P. 17(a)–(b)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) Current Rule 17(c) permits a subpoena to designate documents or objects for production, permits prompt quashing or modification if compliance would be unreasonable or oppressive, and requires a court order plus ordinarily victim notice before a post-charge third-party subpoena for a victim's personal or confidential information. [Fed. R. Crim. P. 17(c)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) Current Rule 17(h) prohibits using Rule 17 to subpoena a witness or prospective witness's statement and directs the parties to Rule 26.2 instead. [Fed. R. Crim. P. 17(h)](https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf) For pretrial production under current Rule 17(c), *United States v. Nixon* holds that the subpoena is not a general criminal-discovery device and requires the proponent to clear relevance, admissibility, and specificity hurdles, together with the case's additional good-faith, necessity, and reasonable-availability considerations. [*United States v. Nixon*, 418 U.S. 683, 698–702 (1974)](https://www.govinfo.gov/content/pkg/USREPORTS-418/pdf/USREPORTS-418-683.pdf) A substantially revised Rule 17 is projected for December 1, 2027 after the Standing Committee approved final proposed amendments in June 2026 for submission to the Judicial Conference, but it is not current law and may still be delayed, changed, rejected, or withdrawn through the rulemaking process. [U.S. Courts Rule 17 status record](https://www.uscourts.gov/forms-rules/records-rules-committees/suggestions/new-york-city-bar-association-22-cr-a); [Pending Rules and Forms Amendments](https://www.uscourts.gov/forms-rules/pending-rules-and-forms-amendments) ## Proof and record checklist Before applying any branch, collect the charging document and arraignment record; every discovery request and response; the district's local criminal rules and discovery order; the government's exhibit and witness notices; the allegedly suppressed item and evidence of who possessed it when; the relationship among prosecutors, agents, police, and other investigators; witness agreements, benefits, promises, payments, and correction history; the proposed use and admissibility of subpoenaed material; the exact witness statement and direct testimony; all production, protective, continuance, exclusion, mistrial, and preservation orders; and the governing circuit's timing, remedy, and standard-of-review cases. ## Common failure points - Treating Rule 16, *Brady*, § 3500, Rule 26.2, and Rule 17 as interchangeable. - Calling every favorable nondisclosure a completed constitutional violation without proving suppression and prejudice. - Applying *Bagley* item by item rather than cumulatively. - Assuming the trial prosecutor's lack of personal knowledge ends the prosecution-team inquiry. - Treating impeachment nondisclosure and known false testimony as the same materiality branch. - Demanding Jencks Act statements before the statutory trigger without separately analyzing constitutional disclosure. - Using Rule 17(c) as an unspecific document-discovery request. - Applying the proposed 2027 Rule 17 text as if already effective. - Missing the Rule 16.1 conference date, local deadlines, preservation objections, or a remedy-specific motion. ## Open questions requiring narrower authority The following remain outside this nationwide module: circuit-specific constitutional disclosure timing; circuit definitions of the prosecution team; treatment of evidence known to state, foreign, civil, intelligence, or separate investigative bodies; consequences of delayed but pre-use disclosure; preservation and waiver; classified-information and privilege procedure; grand-jury disclosure; electronic-data production protocols; local expert schedules; ex parte subpoena practice beyond current Rule 17(b); interlocutory review; and appellate standards for each sanction or constitutional disposition. ## Primary authorities - Fed. R. Crim. P. 10, 16, 16.1, 17, 26.2, and 45. - 18 U.S.C. § 3500. - *Brady v. Maryland*, 373 U.S. 83 (1963). - *Giglio v. United States*, 405 U.S. 150 (1972). - *Napue v. Illinois*, 360 U.S. 264 (1959). - *United States v. Bagley*, 473 U.S. 667 (1985). - *Kyles v. Whitley*, 514 U.S. 419 (1995). - *Strickler v. Greene*, 527 U.S. 263 (1999). - *United States v. Nixon*, 418 U.S. 683 (1974). Last verified: **August 25, 2026**. ## Authorities - [Fed. R. Crim. P. 10, 16, 16.1, 17, 26.2](https://jason93.com/legal/federal-process/authorities/AUTH-FRCRIM-P-10-16-17-26-2.md) · official source: https://www.uscourts.gov/sites/default/files/document/federal-rules-of-criminal-procedure.pdf - [Fed. R. Crim. P. 45](https://jason93.com/legal/federal-process/authorities/AUTH-FRCRIM-P-45.md) · official source: https://www.govinfo.gov/content/pkg/USCODE-2024-title18/pdf/USCODE-2024-title18-app.pdf - [18 U.S.C. § 3500](https://jason93.com/legal/federal-process/authorities/AUTH-USC-18-3500.md) · official source: https://www.govinfo.gov/link/uscode/18/3500 - [Brady v. Maryland, 373 U.S. 83 (1963)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-BRADY-373-US-83.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-373/pdf/USREPORTS-373-83.pdf - [Giglio v. United States, 405 U.S. 150 (1972)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-GIGLIO-405-US-150.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-405/pdf/USREPORTS-405-150.pdf - [Napue v. Illinois, 360 U.S. 264 (1959)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-NAPUE-360-US-264.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-360/pdf/USREPORTS-360-264.pdf - [United States v. Bagley, 473 U.S. 667 (1985)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-BAGLEY-473-US-667.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-473/pdf/USREPORTS-473-667.pdf - [Kyles v. Whitley, 514 U.S. 419 (1995)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-KYLES-514-US-419.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-514/pdf/USREPORTS-514-419.pdf - [Strickler v. Greene, 527 U.S. 263 (1999)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-STRICKLER-527-US-263.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-527/pdf/USREPORTS-527-263.pdf - [United States v. Nixon, 418 U.S. 683 (1974)](https://jason93.com/legal/federal-process/authorities/AUTH-SCOTUS-NIXON-418-US-683.md) · official source: https://www.govinfo.gov/content/pkg/USREPORTS-418/pdf/USREPORTS-418-683.pdf - [Proposed Fed. R. Crim. P. 17 amendment (Standing Committee approval, June 2026)](https://jason93.com/legal/federal-process/authorities/AUTH-FRCRIM-PROP-17-2026.md) · official source: https://www.uscourts.gov/forms-rules/records-rules-committees/suggestions/new-york-city-bar-association-22-cr-a