The adversary system of trial is hardly an end in itself; it is not yet a poker game in
which players enjoy an absolute right always to conceal their cards until played.
— United States Supreme Court Justice Byron White, Williams v. Florida (1970)¹

[T]his Court looks with favor on full and reciprocal discovery in criminal cases, to the
maximum extent possible consistent with the constitutional rights of those accused of criminal acts.
— Tennessee Supreme Court Justice Joe Henry, State v. Gaddis (1975)²

Today, civil litigants routinely deploy — with little to no court oversight or involvement — a wide array of discovery tools to develop their claims or defenses. Civil lawyers routinely subpoena evidence from third parties, conduct depositions and serve/respond to written discovery requests. These tools help parties decide whether to settle or proceed to trial. What is at stake? Money, usually.

Criminal defendants have far fewer discovery tools at their disposal. The prosecution’s only real discovery obligation is to produce the limited items listed in the rules of criminal procedure and what it deems exculpatory. Absent extraordinary circumstances, those accused of a crime have no right to depose witnesses, compel production of specific information or documents, or issue third party subpoenas. What’s at stake in a criminal case? Almost everything: an individual’s personal liberty, reputation, family, steep fines and thousands of other “collateral consequences” that include loss of voting rights, employment disqualification and inability to hold public office.³

This article highlights these glaring disparities in criminal and civil discovery under Tennessee law and advocates for reform. While the civil rules allow litigants to freely investigate and gather evidence from a variety of sources to support their monetary claims or defenses, the criminal rules significantly limit the discovery available to individuals charged with a crime and often hinder their ability to prepare a defense.

This stark disparity defies logic, offends fundamental fairness and betrays the presumption of innocence that is supposedly the bedrock of our criminal justice system. When a person’s freedom is at stake, they should be afforded every reasonable opportunity to defend themselves. They should have access to the same discovery tools available to civil litigants. In Tennessee and many other states, they don’t. Why? Because despite the presumption of innocence, our criminal procedure rules systematically disadvantage the accused, leaving them to navigate a treacherous legal landscape where the prosecution controls the evidence, dictates the flow of information and decides what evidence defendants get to see before trial. How did we get here? The answer requires a brief history lesson.

Origins of the Federal Rules of Civil and Criminal Procedure

At common law, the civil and criminal procedural rules were largely the same but varied (sometimes wildly) by state.4 A federal court applied the procedural rules of the state where the court was located. The rules were restrictive and archaic, limiting cases to a single plaintiff presenting a single claim against a single defendant in accordance with “precise, unyielding language.”⁵ Cases had two phases: (1) presentation of claims/charges and (2) trial. There was no mechanism for pretrial discovery and this often led to the presentation of “surprise documents and witnesses” at trial.⁶ As society evolved and disputes became more complex, the legal community saw the need for procedural rules that allowed (1) multi-claim and multi-party litigation and (2) pretrial evaluation of the opponent’s evidence.⁷

The modern divergence in the discovery available in civil versus criminal cases began with the promulgation of the Federal Rules of Civil and Criminal Procedure. In 1934, Congress passed the Rules Enabling Act, paving the way for the Federal Rules of Civil Procedure, which took effect in 1938. The Federal Rules of Civil Procedure were drafted to address the limitations of common law and create a more uniform, efficient and fair process.⁸ An important change under the new rules was the addition of a third phase of civil litigation — discovery — which the drafters hoped would eliminate the previous “trial by ambush” regime and facilitate informed settlement discussions.⁹

Those tapped to write the Federal Rules of Criminal Procedure expected to model those rules on the civil rules enacted a few years before. The original draft of the Federal Rules of Criminal Procedure closely mirrored the Federal Rules of Civil Procedure and included a robust discovery phase.¹⁰ Among other things, the drafters hoped these new criminal rules would remove barriers to entry that had deterred civil litigators from serving as criminal defense attorneys.¹¹

This hope was quickly extinguished by the drafting committee, which was comprised almost entirely of prosecutors.¹² Not surprisingly, the drafting committee opposed expansive discovery and largely adopted only the civil rules that benefited federal prosecutors.¹³ The drafting committee rejected a broad criminal discovery rule that mirrored Federal Rules of Civil Procedure 26.¹⁴ Instead, the committee proposed a rule that would have required the defendant to waive his Fifth Amendment right against self-incrimination to conduct discovery.¹⁵ The end result was the vastly different civil and criminal discovery regimes that exist today. The final draft of the Federal Rules of Criminal Procedure closely resembled the common law regime, except for new pro-prosecution rules, such as the civil liberal pleading standard for indictments and rules of party and claim joinder.¹⁶ Rules that would have enabled defendants greater flexibility and avenues for pursuing evidence to aid in their defense (e.g., third party subpoenas, written discovery, depositions) were severely restricted or eliminated. Unfortunately for the accused, most states (including Tennessee), enacted near identical versions of the Federal Rules of Criminal Procedure, as they did with the Federal Rules of Civil Procedure.

Once enacted, the Federal and Tennessee Rules of Criminal Procedure effectively denied criminal defendants meaningful discovery and compelled many to plead guilty without seeing the strength or weaknesses of the government’s case and the exculpatory evidence, if any.¹⁷ Although prosecutors have a legal and ethical duty to turn over exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), defendants who enter early plea agreements (often at the prosecutor’s urging) may unknowingly waive their Brady rights and suffer harsher penalties than the evidence may have supported.¹⁸ Because there are over 40,000 collateral consequences that can result from criminal convictions in the United States, the informational asymmetry that inherently rises from a system that aggressively promotes early plea bargaining over individualized case assessment largely prevents criminal defendants from accessing all the relevant evidence needed to make informed decisions about whether to enter into plea negotiations or go to trial.¹⁹

Key Disparities Between Tennessee’s Civil and Criminal Rules of Procedure

Although not a carbon copy of the Federal Rules of Criminal Procedure, the Tennessee Rules of Criminal Procedure were, like the civil rules, largely based on the corresponding Federal Rules.²⁰ Accordingly, the disparities between the discovery rights afforded to civil and criminal litigants under the federal rules also exist under the Tennessee rules.

There are also significant differences in how criminal discovery is administered in Tennessee. Defense lawyers frequently file unnecessary “motions” for discovery and prosecutors file wholesale discovery responses with the clerk often injecting sensitive data into the public domain and potentially jeopardizing defendants’ rights to a fair trial.

Before 1963, Tennessee had no discovery procedures in criminal cases. In 1963, the defendant was afforded a statutory right to see his or her own confession.²¹ In 1968, discovery of certain physical evidence held by the prosecution was allowed.²²

The 1968 statute addressed the limited right of discovery in criminal cases and required the defendant to file a “motion” for discovery and the judge to issue an “order” granting the discovery motion.²³ Thus began the practice of lawyers filing motions for discovery, getting an order to comply from the judge and then the district attorney filing full discovery responses with the court showing compliance with the order.

These ancient discovery statutes were repealed when the new Tennessee criminal rules became effective in 1978. While not explicit, the new rules replaced the prior discovery motion requirement with the new procedure that simply dictated that discovery was to be available upon “request.” Thus, with the stroke of a pen, the new rules abolished the archaic practice of discovery “motions.” But old practices die hard and lawyers continue to file motions for discovery. Reform should explicitly abolish this practice.²⁴

The practice of prosecutors filing discovery responses with the clerk to “document” that discovery has been provided should also be abolished. The Tennessee rules, like their federal counterpart, are specific when certain pretrial documents (mostly notices) are to be filed with the clerk of court.²⁵ Rule 16 does not require or even contemplate that any discovery responses or other documents be lodged with the court unless or until there is a discovery dispute.

The proliferation of paper is not the main problem. The primary concern is that the advanced disclosure of evidence with the clerk can easily become part of the public domain and work to the prejudice of the defense and the state.²⁶ The authors do not suggest that discovery responses be routinely filed under seal. Instead, criminal — like civil — discovery should not be filed with the court absent a showing of need.

Yet, Rule 16 does not currently prohibit public dissemination of discovery by the prosecutor. This problem is virtually non-existent in federal courts. There, the prosecutor sends discovery directly to the defense attorney. Filing discovery with the clerk in federal court would probably result in serious, immediate sanctions because all filings (unless sealed) are electronic and publicly accessible. And parties do not file discovery with the clerk in civil cases. Criminal discovery reform in Tennessee should follow civil practice.²⁷

Under the Tennessee Rules of Civil Procedure, the parties have access to a wide array of discovery tools, including depositions, written discovery, physical and mental examinations and third party subpoenas, as well as enforcement mechanisms to secure compliance with the appliable rules.²⁸ The Tennessee Rules of Civil Procedure have ten rules (with various sub-parts) setting the parameters for the discovery tools at the parties’ disposal.²⁹ The Tennessee Rules of Criminal Procedure have half as many discovery rules as their civil counterpart and are much more restricted.³⁰ Depositions and third-party subpoenas for pretrial production are rare in criminal cases — both require court approval.³¹

Tennessee’s Civil and Criminal Rules on depositions highlight the stark contrast between the discovery rights in civil versus criminal cases. Rule 30 of the Tennessee Rules of Civil Procedure permits “any party” to “take the testimony of any person, including a party, by deposition upon oral examination.”³² The only time a civil party must seek court approval before taking a deposition is when the plaintiff wants to depose a witness between a defendant’s date of service and its Complaint response deadline.³³ But, witness depositions are rarely allowed in criminal cases. Unless both parties consent, the Tennessee Rules of Criminal Procedure require the party seeking to depose a witness (invariably the defendant) to seek court approval.³⁴ Court approval requires showing relevance and need, which creates a “Sophie’s Choice” for a defendant: convince the court the deposition is justified (by an early unveiling of the defendant’s trial strategy and/or theory of the case) or forego the deposition. These barriers mean defendants will have few opportunities to depose the prosecution’s witnesses and evaluate their testimony before trial.³⁵ The inability to assess the substance and credibility of witnesses’ testimony hamstrings defendants and their counsel and can preclude them from making fully informed decisions about how best to resolve their cases.

Written discovery is also very different under the civil and criminal rules. Under the Tennessee and Federal Rules of Civil Procedure, traditional written discovery requests allow either party to identify and ask the other side to produce information and documents that may relate to a claim or defense. Criminal defendants have no such rights. The Tennessee Rules of Criminal Procedure have just one rule addressing the parties’ documentary discovery obligations. Rule 16 lists the specific items that defendants can “request.”³⁶ Although civil litigants may seek to discover “any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party,” criminal defendants can only ask the prosecution to produce specifically delineated categories: the defendant’s oral, written and recorded statements; the defendant’s prior criminal record; and documents and objects and reports of examinations and tests.³⁷ Defendants who wish to inspect documents, objects, examinations or tests under Rule 16(a)(1)(F)-(G) must allow the prosecution to inspect documents and objects in the defendant’s possession or control and/or expert reports that the defendant may present at trial.³⁸ Thus, criminal defendants must carefully choose which expert reports to seek given the reciprocal discovery obligations that may be triggered thereby. The defense does not have to disclose its witnesses before trial, but it must give the prosecution advance notice if s/he intends to raise an alibi defense. The prosecution does not have to disclose a witness list under the Federal or Tennessee Rules of Criminal Procedure.³⁹ A Tennessee statute regarding the listing of witnesses has been interpreted as only directory, not mandatory.⁴⁰

Interrogatories and requests for admissions do not exist in criminal discovery. In civil litigation, these tools (along with document production requests) allow parties to ask their opponent to identify and produce evidence supporting their claims and to admit or deny relevant facts. In criminal cases, prosecutors get to decide how much (if any) evidence they will provide to defendants beyond the scope of Rule 16 and the prosecution’s Brady obligations.⁴¹ As a result, criminal defendants who choose to invoke their constitutional right to trial are at a much greater disadvantage and have far less information and evidence available to them than defendants in a civil case. “Trial by ambush” is the norm, rather than the exception, in criminal cases.

Little has changed since Tennessee adopted the criminal rules in 1978, apart from Rule 26.2. This rule, promulgated in 1985, requires a party to provide to the other side “statements” of a witness but only after the witness testifies. But Rule 26.2 provides neither the defendant nor the State with a general right to pretrial discovery of witness statements. Receiving critical statements for the first time with the jury in the box deprives defendants and their lawyers of the opportunity to properly investigate, develop impeachment materials or prepare for effective cross-examination and frequently delays the trial.⁴² Witness statements should be discoverable well in advance of trial.

Now, considering “truth in sentencing” laws, where many sentences are to be served at 100% and parole is abolished, the stakes cannot be higher. It is time for Tennessee’s criminal discovery deficiencies to be subject to wholesale reform by our Supreme Court.⁴³

North Carolina: a Model for Criminal Discovery Reform

As of 2019, at least 40 states had departed from Rule 16 of the Federal Rules of Criminal Procedure by allowing or requiring pre-trial disclosure of witness lists.⁴⁴ To varying degrees, these states either enable or require the government to participate in a more meaningful discovery process. Tennessee adheres closely to Federal Rule 16 and, as of 2026, does not require pretrial disclosure of witness lists.⁴⁵ North Carolina is a useful case study in criminal discovery reform. Before 2004, the North Carolina Rules of Criminal Procedure governing discovery mirrored Rule 16 under the Federal and Tennessee rules.⁴⁶ Defendants only had the right to receive copies of their own statements, the statements of any co-defendants and the reports of any examinations and tests conducted in relation to the case.⁴⁷ Some agencies in North Carolina had informally adopted “open-file discovery”; others rejected it.⁴⁸ In jurisdictions without open-file discovery, a defendant could only invoke their Brady decried rights and hope the prosecutor liberally defined exculpatory evidence.⁴⁹ Given substantial subjectivity inherent in a Brady review, this approach unsurprisingly yielded mixed and uneven results depending on the prosecutor assigned to the case. For this reason, Brady violations were and remain, common.⁵⁰

Brady obligations put prosecutors across the country in ethically conflicting roles.⁵¹ On the one hand, prosecutors are expected to secure criminal convictions and justice for victims, which may color a prosecutor’s determination of what evidence is considered “exculpatory.” After all, the ethical prosecutor would never seek an indictment without first convincing herself of the defendant’s guilt. But prosecutors are usually the primary source of evidence (favorable and unfavorable) for criminal defendants. These contradictory roles and the perverse incentives created for prosecutors to suppress — rather than reveal — potentially exculpatory evidence and ultimately led to criminal discovery reform in North Carolina.

In 2004, North Carolina changed its rules of criminal procedure to require open-file discovery by the prosecution.⁵² Open-file discovery allows criminal defendants to see non-privileged materials provided to the prosecution by law enforcement.⁵³ In theory, this system is designed to level the informational playing field between prosecutors and defendants and reduce the likelihood of a Brady violation. Open-file discovery is a good start, but it remains an imperfect solution. In an open-file discovery regime, defendants are only allowed to view what the prosecution and law enforcement put in their files.⁵⁴ Thus, prosecutors and law enforcement can still circumvent open-file discovery by choosing to keep certain information out of the open files.⁵⁵

The open-file regime in North Carolina does not eliminate the risk of Brady violations. But prosecutors who view their discovery obligations broadly and share evidence freely with defense counsel will significantly reduce the volume of such violations. Regardless, open-file discovery markedly enhances a criminal defendant’s discovery rights when compared to the current federal and Tennessee rules.

Recommendations for Reform to Tennessee Criminal Procedure Rules

Adopting an open-file discovery model and incorporating the civil discovery rules that promote quick and efficient resolution of cases will go a long way towards closing the sizable information gap that exists between prosecutors and criminal defendants in this state — a gap that prompts premature pleas and inhibits guilty pleas by defendants who lack enough information about their criminal exposure.

The practical implications of changing the criminal discovery rules cannot be ignored. More criminal cases are filed yearly than civil cases in Tennessee.⁵⁶ Defendants in criminal cases constitutionally have the right to counsel; civil defendants do not. Because most individuals accused of crimes are indigent and are appointed counsel, cost and efficiency are other valid considerations. Criminal cases are often resolved more quickly than civil cases and expanded discovery may affect the speed with which the former cases are resolved. But other parts of our criminal justice system will continue to prompt quick dispositions, such as the modest court-appointed counsel hourly rates (currently $60) and maximum fee caps for most felony cases.⁵⁷ These financial constraints alone will inhibit most criminal cases from devolving into multi-year litigation with extensive discovery. Individuals who wish to plead guilty and resolve their cases quickly will probably opt out of most discovery, while those accused of serious and complex crimes with possible defenses stand to benefit the most from expanded discovery.

The first, best step towards reform is a statewide open-file discovery rule.⁵⁸ Requiring prosecutors to reveal all the evidence gathered by law enforcement would help defendants and their attorneys make more educated decisions about whether to go to trial or negotiate a plea. Another simple but effective reform would be to amend Rule 16 to require the prosecution to reveal the names and addresses of the government’s expected witnesses to the defense.⁵⁹ A similar amendment to the Federal Rules of Criminal Procedure was proposed and ultimately rejected by Congress in 1974.⁶⁰ The federal criminal defense bar recently proposed this and other reforms aimed at closing the informational gap and trial by ambush common in federal criminal court.⁶¹

Disclosure of witness statements should not occur during the trial but well before, during open file discovery. Relaxing the stringent deposition requirements under Rule 15 likely also would help level the playing field and allow both sides to preview the testimony to be offered at trial. Amending Rule 15 to more closely mirror the civil deposition rules and allowing both sides to depose witnesses ahead of trial would allow defendants and their counsel to better evaluate the strengths and weaknesses of the prosecution’s case and the viability (or not) of certain defenses. The legal community has long recognized the mutual benefits inherent in pre-trial depositions and the idea had support when the Federal Rules of Criminal Procedure were first drafted.⁶² The prosecutorial majority/makeup of the drafting committee won the day, however, and renewed calls for reform have not yet succeeded. Tennessee should follow the lead of states like Florida, which changed its criminal rules in 1972 to allow depositions in criminal cases.⁶³

As addressed earlier, procedural reform should also include abolishing the notion of “discovery motions” and explicitly prohibiting wholesale discovery responses being filed with the clerk. These reforms could promote fairer trials and enhance significant advances in plea negotiations. This might lead to another improvement worth exploring: mediation in criminal cases.

Conclusion

The lopsided and prosecution-heavy makeup of the original committee responsible for drafting the Federal Rules of Criminal Procedure created a set of federal, then state, rules made in their image and set in stone. Since their enactment, these rules have hobbled the accused and helped with unequal and unjust federal and state criminal discovery rules that presume guilt rather than innocence.

Reform is urgently required. Exonerations of wrongly convicted people are due mainly because all the facts were not known to the defense. Convicting the innocent is intolerable. We should collectively push for reforms that help society, promote the rule of law and ensure fairness in civil and criminal proceedings.⁶⁴ |||

JOY BOYD LONGNECKER is a former prosecutor who defends individuals and companies in federal and state criminal and civil investigations, litigation and trials. She co-chairs Barnes & Thornburg LLP’s White-Collar, Compliance and Investigations Practice Group and is a member of the Criminal Justice Act panel of court-appointed attorneys for the Middle District of Tennessee.

MATTHEW LYBECK is an associate in Barnes & Thornburg LLP’s Nashville office. He received his law degree from Vanderbilt University Law School and his Bachelor of Arts degree in English from the University of South Carolina.

DAVID RAYBIN is a 1973 graduate of the University of Tennessee (now Winston) School of Law. He was the attorney general’s designee to the Tennessee Supreme Court’s Criminal Rules Commission, which drafted the initial version of the rules in 1978. He later chaired the commission for six years. Raybin is in private practice with Raybin & Weissman P.C. in Nashville.

NOTES
1. Williams v. Fla., 399 U.S. 78, 82 (1970).
2. State v. Gaddis, 530 S.W.2d 64, 70 (Tenn. 1975)
3. See niccc.nationalreentryresourcecenter.org, National Inventory of Collateral Consequences of Conviction and “How ‘Collateral Consequences’ Keep People Trapped in the Legal System,” www.vera.org/news/how-collateral-consequences-keep-people-trapped-in-the-legal-system. A felony renders a person infamous. Recall that in 1853, Gov. Andrew Johnson opposed the practice of teaching inmates stone masonry which enabled “the criminals to engrave names upon the tombs of the departed.” He requested that convicted felons be excluded from those persons having charge of the cemeteries because “if it is degrading to be associated with a felon while we are living, it must be more so to be associated with them after we are dead.” White, 4 Messages of the Tennessee Governors 656 (1957). And, thus, not surprisingly, funeral directors cannot be felons. Tenn. Code Ann. § 62-5-317.
4. Ion Meyn, Why Civil and Criminal Procedure Are So Different: A Forgotten History, 86 Ford. L. Rev. 697, 701 (2017).
5. Id. at 701-02 (noting that a pleading may have been dismissed as insufficient for failing to specify whether the underlying event occurred in 1855 B.C. or A.D.).
6. Id. at 703.
7. Id. at 702-03.
8. Id. at 703-05.
9. Id. at 706.
10. Id. at 707-10 (the drafters excluded inapplicable civil rules like interpleader, class actions and summary judgment).
11. Id. at 712.
12. Id. at 712-13, 727-29.
13. Id. at 712-20 (the drafting committee frequently rejected rules that would lessen the efficiency of criminal trials).
14. Id. at 720-24.
15. Id. (members opposing document requests without waiver feared that defendants would fabricate evidence to rebut any evidence produced by the government).
16. Id. at 726.
17. See 2023 Plea Bargain Task Force Report, American Bar Association Criminal Justice Section 1, 24 (2023).
18. Id.
19. Id. at 26.
20. State v. Readus, 764 S.W.2d 770, 773 (Tenn. Crim. Ct. App. 1988) (“The federal rules format was a useful subject matter structure for use as a guide; and some of the federal rules … seemed totally appropriate for Tennessee adoption. The same was true of many of the rules relating to discovery.”). As noted in the commission comments to Tennessee Rule 16, the “rule substantially conforms to the new federal discovery Rule 16 … .”
21. See Public Acts of 1963, Chapter 96.
22. See Public Acts of 1968, Chapter 415.
23. Anglin v. State, 553 S.W.2d 616, 622 (Tenn. Crim. App. 1977) (“It is essential that a party, by motion, obtain an order of the Court to entitle himself to the benefits of [discovery under the now-repealed statute].”)
24. The commission comments to the similar federal rule provide that “the rule provides that the parties themselves will accomplish discovery — no motion need be filed and no court order is necessary. The court will intervene only to resolve a dispute as to whether something is discoverable or to issue a protective order.”
25. Rule 12.2(a) provides that notice of insanity requires notice to the opposing party and a requirement that a copy be filed with the clerk of court. Similarly, notice of expert testimony of the defendant’s mental condition must be filed with the district attorney and a copy of the notice with the clerk. Rule 12.3 provides that notice of intent to seek an increased sentence or the death penalty must be in writing, served on the defense attorney and “filed with the court clerk.”
26. Matters filed with the clerk are presumptively matters of public record. See, State v. Johnson, ___ S.W.3d ___, No. M2024-00959-SC-R10-CO, 2026 WL 1433940, at *3 (Tenn. May 21, 2026) (“We reiterate that the presumption of openness extends not only to court proceedings, but also to judicial records.”).
27. Public disclosure of pre-trial discovery pursuant to Rule 16 during the pendency of a case was squarely rejected by the Tennessee Supreme Court in Tennessean v. Metro, 485 S.W.3d 857 (Tenn. 2016). The court reaffirmed that discovery in criminal proceedings is governed by Rule 16, but “Rule 16 does not provide for the release of any information to anyone not a party to the criminal proceeding.” Tennessean, 485 S.W.3d at 866. According to the Supreme Court, Rule 16 “minimizes these risks by limiting access to discovery materials to the State and the defendant.” Id. The court warned of the prospect of “potential jurors [learning] about the State’s case against the defendant by reading a newspaper or watching a television news broadcast,” which the court called an “absurd result” which would have a “negative impact on … a criminal defendant’s ability to obtain a fair trial.” Id. at 871.
28. Tenn. R. Civ. P. 26.01, 30.01, 30.02, 33.01, 33.02, 34.01, 34.02, 35.01, 36.01,37.01, 45.01, 45.02.
29. For example, depositions are governed by Tenn. R. Civ. P. 27, 28, 30, 31 and 32; interrogatories are governed by Tenn. R. Civ. P. 33; requests for document productions are governed by Tenn. R. Civ. P. 34; physical and mental examination of persons are governed by Tenn. R. Civ. P. 35; and requests for admissions are governed by Tenn. R. Civ. P. 36.
30. The relevant criminal rules govern depositions (Tenn. R. Crim. P. 15), discovery and inspection (Tenn. R. Crim P. 16) and subpoenas (Tenn. R. Crim. P. 17).
31. Tenn. R. Crim. P. 15; Tenn. R. Crim. P. 17.
32.Tenn. R. Civ. P. 30.01.
33. Id.
34. Tenn. R. Crim. P. 15(a).
35. A common rejoinder by the prosecution is that defendants can informally interview witnesses. Nonsense. The playing field for witness interviews is far from level. The prosecution frequently interviews government witnesses and decides who it will call to testify at trial. The prosecution can also compel a recalcitrant witness to appear and testify before a grand jury — under oath and without counsel. True, defense counsel can (and almost always do) attempt to interview witnesses informally. But if a witness declines, there is no mechanism for the defense to force a reticent witness to participate in an interview or be examined under oath before trial.
36. Tenn. R. Crim. P. 16(a).
37. Compare Tenn. R. Civ. P. 26.02 with Tenn. R. Crim. P. 16(a)(1).
38. Tenn. R. Crim. P. 16(b)(1).
39. See Tenn. R. Crim. P. 16; Fed. R. Crim. P. 16.
40. There are two Tennessee statutes that relate to the provision of witness lists before trial. See Tenn. Code Ann. §§ 40-13-107 and 40-17-106. The first statute, Tenn. Code Ann. § 40-13-107, relates to a duty imposed on the foreman of the grand jury to endorse the names of the witnesses who were sworn by the foreman. This statute does not impose a duty upon prosecutors to call the witnesses named by the grand jury foreman. The second statute, Tenn. Code Ann. § 40-17-106, provides that the district attorney must endorse “the names of witnesses” that the district attorney “intends shall be summoned in the cause” when the charging instrument is endorsed. Tennessee courts have interpreted Tenn. Code Ann. § 40-17-106 as “directory,” noting that failure to list a witness on the indictment “does not necessarily disqualify a witness whose name does not appear on the indictment from testifying.” State v. Allen, 976 S.W.2d 661, 667 (Tenn. Crim. App. 1997) (“Tenn. Code Ann. § 40–17–106 directs the State to list ‘the names of such witnesses as [it] intends shall be summoned in the cause’ on the charging indictment. The purpose of this statute is to prevent surprise to the defendant at trial and to permit the defendant to prepare his or her defense to the indictment. However, this duty is merely directory, not mandatory. … The State’s failure to include the name of a witness on the indictment will not automatically disqualify the witness from testifying. Id. A defendant will be entitled to relief for nondisclosure only if he or she can demonstrate prejudice, bad faith, or undue advantage … The determination of whether to allow the witness to testify is left to the sound discretion of the trial judge.”).
41. The conflicts inherent in allowing the prosecution alone to decide whether something is “exculpatory” lie outside the scope of this article but are obvious and problematic, as many courts and practitioners have acknowledged. Jonathan Abel, Buoying Brady’s Burden, Daily Journal (March 19, 2015), bit.ly/4fMVP8n (“The basic problem is that Brady asks prosecutors to make disclosures that weaken their own case and, thus, cut against their own self-interest in winning”); Brian Gregory, Brady is the Problem: Wrongful Convictions and the Case for “Open File” Criminal Discovery, 46 Univ. S.F. L. Rev. 819, 829 (May 16, 2012) (“The current Brady rule ignores the reality that the significance of a piece of evidence obtained in the course of an investigation is largely in the eye of the beholder. A piece of evidence may not appear to be significant to one investigator may have great significance to someone with a different perspective on a case”).
42. State v. Caughron, 855 S.W.2d 526, 535–36 (Tenn. 1993). While neither state nor federal trial judges can require advance disclosure of statements, … prosecutors should nevertheless avoid needless delay by following the State’s example here. We would strongly recommend early production of statements of witnesses in order to expedite the trial of the case and avoid lengthy recesses during trial. … This advance production satisfied the state’s duty under Rule 26.2 and avoided the needless delay of the trial.
43. Discovery reform traditionally comes from courts. The Tennessee Criminal Rules were promoted by Justice Henry who concluded that the “days of trial by ambush are numbered.” State v. Gaddis, 530 S.W.2d 64, 69 (Tenn. 1975). When Gaddis was released, the Rules were still being formulated, State v. Gaddis, 530 S.W.2d 64, 70 (Tenn. 1975).
44. Emma Cecil & Carl Lietz, Avoiding Trial by Ambush: Why it’s Time to Revise the Federal Rules of Criminal Procedure to Require the Parties to Disclose Witness Lists, The Federal Lawyer 8, 8 n.5 (March 2019).
45. The sole exception to this rule is alibi witnesses. Pursuant to Tennessee Rule of Criminal Procedure 12.1, criminal defendants must provide a list of alibi witnesses if they intend to offer an alibi defense. The prosecution, in response, must disclose the names of witnesses it intends to call to rebut the defendant’s alibi no less than ten days before trial.
46. Mike Klinkosum, Pursuing Discovery in Criminal Cases: Forcing Open the Prosecution’s Files, National Association of Criminal Defense Lawyers (May 2013), www.nacdl.org/Article/May2013-PursuingDiscoveryinCriminalCas.
47. Id.
48. Id.
49. Id.
50. Id.
51. Id.
52. Id.
53. Id.
54. Id.
55. Id.
56. Annual Statistical Report of the Tennessee Judiciary Fiscal Year 2023-2024, Tennessee Judiciary (last viewed Feb. 12, 2026), www.tncourts.gov/media/statistical-reports (showing 99,345 civil matters filed in state chancery and circuit courts as compared to 149,175 criminal cases filed in state criminal courts).
57. Tenn. Sup. Ct. R. 13 § 2(c)-(d), available online at www.tncourts.gov/courts/supreme-court/rules/supreme-court-rules/rule-13-appointment-qualifications-and-compensation. The maximum compensation ranges from $1,200 for a misdemeanor to $3,600 for a defendant charged with first degree murder. For most felonies, the maximum compensation for an appointed attorney is $2,400. Rates for civil attorneys in Tennessee range from $0 in contingency fee cases to more than $1,000 per hour.
58. Some jurisdictions have implemented open-file discovery already. See, e,g, Jarod Word, “Contested DA Races Explored: 3 Davidson County Candidates Respond to Section’s Questions,” Tennessee Bar Association, www.tba.org/2022_DavidsonDA_Debates (Mar. 15, 2022) (responding to a survey question asking about open file discovery, Davidson County District Attorney General Glenn Funk stated “I have an open file policy. This applies to everything in our files from every law enforcement agency. No exceptions.”).
59. To the extent that the prosecution has a viable argument that disclosing certain witnesses will place them in danger (a consideration largely absent for defendants accused of non-violent offenses), such an argument can be raised by motion and addressed by courts on a case by case basis.
60. W. Carl Lietz III, Trial by Ambush Should be a Two-Way Street: The Federal Notice-of-Alibi Rule and Mandatory Disclosure of Defense Witnesses, 33-JUL Champion 38, 38-40 (July 2009), available online at: bit.ly/westlaw_lietz_July2009.
61. The National Association of Criminal Defense Lawyers (NACDL) have proposed and argued for amendments to Federal Rule of Criminal Procedure 17, which governs subpoenas. NACDL argues in favor of amending Rule 17 to extend the civil subpoena power to criminal defendants to enable effective investigations. See Michael P. Heiskell, Jim Felman, Benjamin Au, Peter Goldberger and Stephen Ross Johnson, NACDL Letter re: Proposed Amendments to Rule 17 of the Federal Rules of Criminal Procedure, National Association of Criminal Defense Lawyers (Feb. 13, 2024); Peter Goldberger, Lisa A. Matthewson, Cheryl D. Stein and Alexander Bunin, Amendment to Criminal Rules Proposed for Comment, Aug. 2025, National Association of Criminal Defense Lawyers (Feb. 11, 2026).
62. Meyn, supra note 1, at 720 (“Suggestions from the legal community revealed support for affording deposition power to criminal defendants. For instance, representatives from the State Bar Association of Kansas thought a defendant ‘should be permitted to take depositions on notice to the United States attorney in the same manner as provided in the rules of civil procedure.’”).
63. Compare Fla. R. Crim. P. 1.220(f) (1968) with Fla. R. Crim. P. 3.220(d) (1972); see also Fla. R. Crim. P. 3.220(h)(1) (“At any time after the filing of the charging document, any party may take the deposition on oral examination of any person authorized by this rule”). Additionally, Missouri, Iowa, Indiana, North Dakota and Vermont also permit criminal defendants to depose witnesses. See Mo. Sup. Ct. R. 25.12(a) (“A defendant in any criminal case after an indictment or the filing of an information may obtain the deposition of any person or oral examination or written questions. The manner of taking the deposition shall be governed by the rules relating to the taking of depositions in civil actions”); Iowa R. Crim. P. 2.12(1) (“A defendant in a criminal case may depose all witnesses listed by the State in the minutes of testimony in the same manner, with the same effect and with the same limitations, as in civil actions, except as otherwise provided by statute and these rules”); Ind. Code Ann. § 35-37-4-3 (“The state and the defendant may take and use depositions of witnesses in accordance with the Indiana Rules of Trial Procedure”); N.D. R. Crim. P. 15(a)(1) (“At any time after the defendant has appeared, any party may take testimony of any person by deposition … except the defendant may not be deposed unless the defendant consents and the defendant’s lawyer … is present”); Vt. R. Crim. P. 15(a) (“A defendant or the state, at any time after the filing of an indictment or information charging a felony, or charging a misdemeanor if authorized under subdivision (e)(4), may take the deposition of a witness subject to such protective orders and deposition schedule as the curt may impose.”).
64. Indeed, lawyers should participate “in activities for improving the law, the legal system, or the legal profession.” Tenn. Sup. Ct. Rule 8, RPC 6.1.