(a) Disclosure of evidence by the state.
(1) Information subject to disclosure. –
(A) Statement of defendant. – Upon request of a defendant the state shall disclose to the defendant and make available for inspection, copying, or photographing: any relevant written or recorded statements made by the defendant or a codefendant (whether or not charged as a principal, accomplice or accessory in the same or in a separate proceeding) , or copies thereof, within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the attorney general; that portion of any written record containing the substance of any relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a state agent; and recorded testimony of the defendant before a grand jury which relates to the offense charged. The state shall also disclose to the defendant the substance of any other relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defendant to be a state agent if the state intends to use that statement at trial. Where the defendant is a corporation, partnership, association or labor union, the court may grant the defendant, upon its motion, discovery of relevant recorded testimony of any witness before a grand jury who (1) was, at the time of that testimony, so situated as an officer or employee as to have been able legally to bind the defendant in respect to conduct constituting the offense, or (2) was, at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been able legally to bind the defendant in respect to that alleged conduct in which the witness was involved.(B) Defendant’s prior record.- Upon request of the defendant, the state shall furnish to the defendant such copy of the defendant’s prior criminal record, if any, as is within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the attorney general.(C) Documents and tangible objects. – Upon request of the defendant the state shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the state, and which are material to the preparation of the defendant’s defense or are intended for use by the state as evidence in chief at the trial, or were obtained from or belong to the defendant.(D) Reports of examinations and tests. – Upon request of a defendant the state shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the state, and which are material to the preparation of the defense or are intended for use by the state as evidence in chief at the trial.(E) Expert witnesses. – Upon request of a defendant, the state shall disclose to the defendant any evidence which the state may present at trial under Rules 702, 703, or 705 of the Delaware Uniform Rules of Evidence. This disclosure shall be in the form of a written response that includes the identity of the witness and the substance of the opinions to be expressed.(2) Information not subject to disclosure. – Except as provided in paragraphs (A) , (B) , (D) and (E) of subdivision (a) (1) , this rule does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the attorney general or other state agents in connection with the investigation or prosecution of the case, or of statements by state witnesses or prospective state witnesses.(3) Grand jury transcripts. – Except as provided in Rules 6 and 26.2, and subdivision (a) (1) (A) of this rule, these rules do not relate to discovery or inspection of recorded proceedings of a grand jury.(b) Disclosure of evidence by the defendant. –
(1) Information subject to disclosure. –
(A) Documents and tangible objects. – If the defendant requests disclosure under subdivision (a) (1) (C) , (D) or (E) of this rule, upon compliance with such request by the state, the defendant, on request of the state, shall permit the state to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in chief at the trial.(B) Reports of examination and tests. – If the defendant requests disclosure under subdivision (a) (1) (C) , (D) or (E) of this rule, upon compliance with such request by the state, the defendant, on request of the state, shall permit the state to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to that witness’ testimony.(C) Expert witnesses. – If the defendant requests disclosure under subdivision (a) (1) (E) of this rule, upon compliance with the request by the state, the defendant, on request of the state, shall disclose to the state any evidence the defendant may present at trial under Rules 702, 703, or 705 of the Delaware Uniform Rules of Evidence. This disclosure shall be in the form of a written response that includes the identity of the witness and the substance of the opinions to be expressed.(2) Information not subject to disclosure. – Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or the defendant’s attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by state or defense witnesses, or by prospective state or defense witnesses, to the defendant, the defendant’s agents or attorneys.(c) Continuing duty to disclose. – If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under this rule, such party shall promptly notify the other party or that other party’s attorney or the court of the existence of the additional evidence or material.(d) Regulation of discovery. –
(1) Protective and modifying orders. – Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party’s statement shall be sealed and preserved in the records of the court to be made available to the Supreme Court in the event of an appeal.(2) Failure to comply with a request. – If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. However, failure of the state to comply with paragraph (B) of subdivision (a) (1) of this rule shall not prohibit the introduction or consideration of a defendant’s prior conviction in a sentencing proceeding. The court may specify the time, place and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.(3) Procedure.
(A) Request. – The defendant may serve a request under subdivision (a) after the filing of an indictment or information but not later than ten days after arraignment or such other time as ordered by the court. The state may serve a request under subdivision (b) not later than ten days after service on the attorney general of a request by the defendant or such other time as ordered by the court. The request shall set forth the items sought with reasonable particularity and shall specify a reasonable time, place and manner of compliance with the request.(B) Response. – The party upon whom the request is served shall serve a response within 20 days after service of the request or at such other time as ordered by the court. The response shall comply with the request or specify any objection to it. The response may specify a reasonable alternative time, place and manner of compliance not later than ten days before trial.(C) Motion to compel. – If a party fails to comply with a request the opposing party may move for an order compelling compliance with the request. A motion to compel shall be filed within ten days after the time for response or at such other time as ordered by the court.(4) Service and filing. – All requests for discovery under this rule and responses thereto shall be served on other counsel or parties but shall not be filed with the court. In lieu thereof, the party requesting discovery and the party responding shall file with the court a “Notice of Service” certifying that a request or response was served and the date and manner of service. The party responsible for service shall retain custody of the original. In cases involving out-of-state counsel, local counsel shall be the custodian. When a party uses any part of a request or response at trial or in proceedings on a motion, that party shall file it with the court. When a discovery request or anything produced in response to such a request is needed for any reason, the court, on its own motion, on motion by any party, or by stipulation of counsel, shall order the custodian to deliver it to the court. When a party files discovery material with the court other than during trial, the party shall file a notice stating, in no more than one page, the reason for filing the material and setting forth an itemized list thereof.
