PRIORITY CAMPAIGN
Rule 15: Level the Discovery Field
One rule change. The single highest-leverage reform available in federal criminal procedure today.
Federal Rule of Criminal Procedure 15 governs pretrial depositions in criminal cases. Under the current rule, they are treated as exceptional — allowed almost only to preserve testimony a witness will not be available to give at trial. The result is that defendants routinely go to trial without ever having questioned the government’s key witnesses under oath.
Our proposal expands Rule 15 so that, in appropriate cases, both sides can take depositions of material witnesses before trial — the same tool that has been routine in federal civil litigation for a century.
This is not a rewrite of criminal procedure. It is a targeted, procedural fix that makes federal criminal practice look more like federal civil practice, where the stakes are lower.
What This Means
Discovery symmetry
Both parties can depose material witnesses on the same terms, subject to the court’s protective authority.
Earlier disclosure
In practice, depositions force earlier production of witness statements that today can be withheld under the Jencks Act until the moment of testimony.
Fewer surprise cases
When both sides see the same evidence, the plea-vs-trial decision is made on the facts, not on information asymmetry.
No new rights invented
Every element already exists in the Federal Rules of Civil Procedure. The proposal transposes established practice into the criminal context.
Where the Proposal Stands
The Justice Restoration Foundation is preparing an organizational suggestion letter to the Judicial Conference Advisory Committee on the Federal Rules of Criminal Procedure. Our target window is early September, in order to land in the fall agenda book ahead of the October committee date.
The letter is drafted with input from former federal prosecutors, current defense counsel, and academics on both sides of the political spectrum. It is deliberately narrow so that the reform can survive committee review on its procedural merits, without becoming a proxy for larger arguments about criminal law.
The Discovery Gap It Closes
| YOUR RIGHT TO… | CIVIL CASEMONEY AT STAKE | FEDERAL CRIMINAL CASEYOUR FREEDOM AT STAKE |
|---|---|---|
| Depose the key witnesses | Yes | No |
| Written interrogatories | Yes | No |
| See witness statements before trial | Yes | No — sometimes the morning the witness testifies |
| Know what a witness will say before you cross-examine | Yes | No |
| Keep your bank accounts during the case | Usually | Often not — an indictment alone can close them |
| Recover your legal fees if the government was wrong | Routinely | Almost never |
| Standard the government must meet to avoid paying you | “Substantially justified” | “Vexatious, frivolous, or in bad faith” |
| Share of cases decided by a jury | — | Under 3% |
- CIVIL
- Yes
- CRIMINAL
- No
- CIVIL
- Yes
- CRIMINAL
- No
- CIVIL
- Yes
- CRIMINAL
- No — sometimes the morning the witness testifies
- CIVIL
- Yes
- CRIMINAL
- No
- CIVIL
- Usually
- CRIMINAL
- Often not — an indictment alone can close them
- CIVIL
- Routinely
- CRIMINAL
- Almost never
- CIVIL
- “Substantially justified”
- CRIMINAL
- “Vexatious, frivolous, or in bad faith”
- CIVIL
- —
- CRIMINAL
- Under 3%
Related — the Jencks Act problem
The Jencks Act allows the government to withhold a witness’s prior statements until after that witness testifies. Depositions would, as a practical matter, force earlier disclosure — which is a large part of why Rule 15 is the highest-leverage single change available to us.
STAY IN THE LOOP
Track the Rule 15 filing
Get notified when we file the organizational suggestion letter, when the Advisory Committee posts the agenda, and when the public hearing date lands. No sales pitch — just filings and dates.