The U.S. District Court for the Middle District of Pennsylvania has amended its Local Criminal Rules significantly to expand discovery at a criminal sentencing. Middle District Local Criminal Rule 32.1, which became effective December 1, requires mutual discovery between the prosecutor and defense counsel of all material and documents supplied to the probation officer who writes an initial report to the judge about the defendant’s criminal conduct involved in the case. We support this initiative and call upon the Western and Eastern districts to adopt it.
Civil practitioners who read this may ask, “What is the big deal? If it’s something the judge will see and use, opposing counsel should see it.” Not necessarily so. Under the prior rules in the Middle District, and under the current rules in the Eastern and Western districts of Pennsylvania, there is no requirement of mutual discovery at sentencing. This is not the product of some conspiracy on the part of the government; it is the way the local rules were drafted. There is very limited discovery in criminal cases in general, and the sentencing phase reflects that philosophy.
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