Rule 16. Discovery

(a) Scope of Discovery. In order to provide adequate

information for informed pleas, expedite trial, minimize

surprise, afford opportunity for effective cross-examination,

and meet the requirements of due process, discovery prior to

trial should be as full and free as possible consistent with

protection of persons, effective law enforcement, and the

adversary system.

(b) Disclosure to the Accused.

(1) Information within Possession or Control of

Prosecuting Attorney.

(A) Except as is otherwise provided as to matters not

subject to disclosure and protective orders, the prosecuting

attorney shall disclose the following information within the

prosecuting attorney’s possession or control to defense counsel

and make available for inspection and copying:

(i) The names and addresses of persons known by the

government to have knowledge of relevant facts and their

written or recorded statements or summaries of statements;

(ii) Any written or recorded statements and summaries of

statements and the substance of any oral statements made by

the accused;

(iii) Any written or recorded statements and summaries of

statements and the substance of any oral statements made by a

co-defendant;

(iv) Any books, papers, documents, photographs or

tangible objects, which the prosecuting attorney intends to use

in the hearing or trial or which were obtained from or belong to

the accused; and

(v) Any record of prior criminal convictions of the

defendant and of persons whom the prosecuting attorney

intends to call as witnesses at the hearing or trial.

(B) Expert Witnesses. Unless a different date is set by

the court, as soon as known and no later than 45 days prior to

trial, the prosecutor shall inform the defendant of the names

and addresses of any expert witnesses performing work in

connection with the case or whom the prosecutor is likely to

call at trial. The prosecutor shall also make available for

inspection and copying any reports or written statements of

these experts

t date is set by

the court, as soon as known and no later than 45 days prior to

trial, the prosecutor shall inform the defendant of the names

and addresses of any expert witnesses performing work in

connection with the case or whom the prosecutor is likely to

call at trial. The prosecutor shall also make available for

inspection and copying any reports or written statements of

these experts. With respect to each expert whom the

prosecution is likely to call at trial, the prosecutor shall also

furnish to the defendant a curriculum vitae and a written

description of the substance of the proposed testimony of the

expert, the expert’s opinion, and the underlying basis of that

opinion. Failure to provide timely disclosure under this rule

shall entitle the defendant to a continuance. If the court finds

that a continuance is not an adequate remedy under the

circumstances of the case, the court may impose other

sanctions, including prohibiting the prosecutor from calling the

expert at trial or declaring a mistrial.

(2) Information Provided by Informant—Electronic

Surveillance. The prosecuting attorneys shall inform defense

counsel:

(A) of any relevant material or information relating to the

guilt or innocence of the defendant which has been provided

by an informant, and

(B) of any electronic surveillance, including wiretapping,

of

(i) conversations to which the accused or the accused’s

attorney was a party,

(ii) premises of the accused or the accused’s attorney.

(3) Information Tending to Negate Guilt or Reduce

Punishment. The prosecuting attorney shall disclose to defense

counsel any material or information within the prosecuting

attorney’s possession or control which tends to negate the guilt

of the accused as to the offense or would tend to reduce the

accused’s punishment therefor.

party,

(ii) premises of the accused or the accused’s attorney.

(3) Information Tending to Negate Guilt or Reduce

Punishment. The prosecuting attorney shall disclose to defense

counsel any material or information within the prosecuting

attorney’s possession or control which tends to negate the guilt

of the accused as to the offense or would tend to reduce the

accused’s punishment therefor.

(4) Information Within Possession or Control of Other

Members of Prosecuting Attorney’s Staff. The prosecuting

attorney’s obligations extend to material and information in the

possession or control of

(A) members of the prosecuting attorney’s staff, and

(B) any others who have participated in the investigation

or evaluation of the case and who either regularly report or

with reference to the particular case have reported to the

prosecuting attorney’s office.

(5) Availability of Information to Defense Counsel.

Whenever defense counsel designates and requests production

of material or information which is not in the possession or

control of the prosecuting attorney but would be discoverable

if in the possession or control of the prosecuting attorney, the

court shall issue suitable subpoenas or orders to cause such

material to be made available to defense counsel.

(6) Information Regarding Searches and Seizures—

Statements From the Accused—Relationship of Witnesses to

Prosecuting Attorney. Except as otherwise provided the

prosecuting attorney shall, upon request of defense counsel,

disclose and permit inspection, testing, copying and

photographing of any relevant material and information

regarding:

(A) Specified searches and seizures;

(B) The acquisition of specified statements from the

accused; and

(C) The relationship, if any, of specified witnesses to the

prosecuting authority.

s otherwise provided the

prosecuting attorney shall, upon request of defense counsel,

disclose and permit inspection, testing, copying and

photographing of any relevant material and information

regarding:

(A) Specified searches and seizures;

(B) The acquisition of specified statements from the

accused; and

(C) The relationship, if any, of specified witnesses to the

prosecuting authority.

(7) Other Information. Upon a reasonable request

showing materiality to the preparation of the defense, the court

in its discretion may require disclosure to defense counsel of

relevant material and information not covered by subsections

(b)(1), (b)(2), (b)(3), and (b)(6).

(8) Legal Research and Records of Prosecuting Attorney.

Disclosure shall not be required of legal research or of records,

correspondence, reports or memoranda to the extent that they

contain the opinions, theories or conclusions of the prosecuting

attorney or members of the prosecuting attorney’s legal staff.

(9) Restriction on Availability of Certain Material.

Notwithstanding (b)(1)(A)(iv) of this rule, the court shall deny

any request by the defendant to copy, photograph, duplicate, or

otherwise reproduce any material prohibited under AS

11.41.455(a) or defined as “child pornography” under 18

U.S.C. 2256, if the prosecuting attorney makes the material

reasonably available for inspection by the defendant and

defense counsel. The material shall be considered to be made

reasonably available to the defendant or defense counsel if the

prosecuting attorney provides, at a law enforcement or

prosecution facility, ample opportunity for inspection, viewing,

and examination of the material by the defendant and the

defendant's attorney. If the defendant is not represented by

counsel and demonstrates a need to view the material, the court

shall make arrangements for the defendant to be supervised

while viewing the material

f the

prosecuting attorney provides, at a law enforcement or

prosecution facility, ample opportunity for inspection, viewing,

and examination of the material by the defendant and the

defendant's attorney. If the defendant is not represented by

counsel and demonstrates a need to view the material, the court

shall make arrangements for the defendant to be supervised

while viewing the material. If the defendant or the defendant's

attorney identifies an expert who must view the material, the

court shall make arrangements for the court or the law

enforcement agency that possesses it to send the material

directly to the expert.

(c) Disclosure to the Prosecuting Attorney.

(1) Non-Testimonial

Identification

Procedures—

Authority. Upon application of the prosecuting attorney, the

court by order may direct any person to participate in one or

more of the procedures specified in subsection (c)(2) of this

rule if affidavit or testimony shows probable cause to believe

that:

(A) An offense has been committed by one of several

persons comprising a narrow focal group that includes the

subject person;

(B) The evidence sought may be of material aid in

identifying who committed the offense; and

(C) The evidence sought cannot practicably be obtained

from other sources.

(2) Non-Testimonial Identification Procedures—Scope.

An order issued under subsection (c)(1) of this rule may direct

the person to do or submit to any and all of the following:

(A) Appear in a line-up;

(B) Speak words, phrases or sentences relevant to the

case for identification by witnesses;

(C) Be fingerprinted;

(D) Pose for photographs not involving reenactment of a

scene;

(E) Try on articles of clothing;

(F) Permit the taking of specimens of material under the

person’s fingernails;

(G) Permit the taking of samples of blood, hair and other

materials of the person’s body which involve no unreasonable

intrusion thereof;

(H) Provide specimens of the person’s handwriting;

(I) Submit to a reasonable physical or medical

inspecti

involving reenactment of a

scene;

(E) Try on articles of clothing;

(F) Permit the taking of specimens of material under the

person’s fingernails;

(G) Permit the taking of samples of blood, hair and other

materials of the person’s body which involve no unreasonable

intrusion thereof;

(H) Provide specimens of the person’s handwriting;

(I) Submit to a reasonable physical or medical

inspection of the person’s body.

(3) Right to Counsel. When issuing an order under

subsection (c) (1) of this rule, the court shall also order that the

person be represented by counsel or waive the right to be

represented by counsel before being required to appear in a

lineup, give a specimen of handwriting, or speak for

identification by witnesses to an offense.

(4) Expert Witnesses. Unless a different date is set by the

court, no later than 30 days prior to trial, the defendant shall

inform the prosecutor of the names and addresses of any expert

witnesses the defendant is likely to call at trial. The defendant

shall also make available for inspection and copying any

reports or written statements of these experts. For each such

expert witness, the defendant shall also furnish to the

prosecutor a curriculum vitae and a written description of the

substance of the proposed testimony of the expert, the expert’s

opinion, and the underlying basis of that opinion. Failure to

provide timely disclosure under this rule shall entitle the

prosecutor to a continuance. If the court finds that a

continuance

is

not

an

adequate

remedy

under

the

circumstances of the case, the court may impose other

sanctions, including prohibiting the defendant from calling the

expert at trial. Information obtained by the prosecutor under

this rule may be used only for cross-examination or rebuttal of

defense testimony.

e shall entitle the

prosecutor to a continuance. If the court finds that a

continuance

is

not

an

adequate

remedy

under

the

circumstances of the case, the court may impose other

sanctions, including prohibiting the defendant from calling the

expert at trial. Information obtained by the prosecutor under

this rule may be used only for cross-examination or rebuttal of

defense testimony.

(5) Notice of Defenses. Unless a different date is set by

the court, no later than 10 days prior to trial, the defendant

shall inform the prosecutor of the defendant’s intention to rely

upon a defense of alibi, justification, duress, entrapment, or

other statutory or affirmative defense. Failure to provide timely

notice under this rule shall entitle the prosecutor to a

continuance. If the court finds that a continuance is not an

adequate remedy under the circumstances of the case, the court

may impose other sanctions, including prohibiting the

defendant from asserting the designated defense. The

defendant shall give notice of an insanity defense or a defense

of diminished capacity due to mental disease or defect in

compliance with AS 12.47.

(6) Physical Evidence. If defense counsel or defense

counsel’s agent acquires physical evidence of the offense,

defense counsel must immediately notify the prosecutor and

must make arrangements to turn over the evidence to the

prosecutor within a reasonable time. Differences concerning

what amount of time is “reasonable” shall be resolved by the

court. Defense counsel must not test or substantively alter the

evidence, unless defense counsel has first notified the

prosecutor and given the prosecutor a reasonable opportunity

to seek court action. Defense counsel must reveal all

information concerning the manner in which the evidence was

obtained and handled unless that information is privileged.

When physical evidence is disclosed by the defense, the

prosecutor cannot reveal to the jury that the evidence was

obtained from the defense.

st notified the

prosecutor and given the prosecutor a reasonable opportunity

to seek court action. Defense counsel must reveal all

information concerning the manner in which the evidence was

obtained and handled unless that information is privileged.

When physical evidence is disclosed by the defense, the

prosecutor cannot reveal to the jury that the evidence was

obtained from the defense.

(d) Regulation of Discovery.

(1) Advice to Refrain From Discussing Case. Except as

is otherwise provided as to matters not subject to disclosure

and protective orders, neither counsel for the parties nor other

prosecution or defense personnel shall advise persons (except

the accused) having relevant material or information to refrain

from discussing the case with opposing counsel or showing

opposing counsel any relevant material, nor shall they

otherwise impede opposing counsel’s investigation of the case.

(2) Additional or Newly Discovered Information. If,

subsequent to compliance with these rules or orders issued

pursuant thereto, a party discovers additional material or

information which is subject to disclosure, that party shall

promptly notify the other party or the other party’s counsel of

its existence. If the additional material or information is

discovered during trial, the court shall also be notified.

(3) Materials to Remain in Custody of Attorney.

(A) Materials furnished to an attorney pursuant to these

rules shall be used only for the purpose of conducting the case.

The following materials must remain in the custody of the

defense attorney, the attorney’s staff, investigators, experts,

and others as necessary for the preparation of the defendant’s

case, and shall be subject to other terms and conditions that the

court may provide. The materials listed in this paragraph shall

not be provided to the defendant, but the information in the

materials may be shared with the defendant to the extent

necessary to prepare the defense of the case:

ney’s staff, investigators, experts,

and others as necessary for the preparation of the defendant’s

case, and shall be subject to other terms and conditions that the

court may provide. The materials listed in this paragraph shall

not be provided to the defendant, but the information in the

materials may be shared with the defendant to the extent

necessary to prepare the defense of the case:

(i) a criminal history record of a victim or witness;

(ii) a medical, psychiatric, psychological, or counseling

record of a victim or witness;

(iii) an adoption record;

(iv) a record that is confidential under AS 47.12.300 or a

similar law in another jurisdiction;

(v) a report of a presentence investigation of a victim or

witness prepared pursuant to Criminal Rule 32.1 or a similar

law in another jurisdiction;

(vi) a record of the Department of Corrections other than

the defendant’s own file and any other incident report relating

to the crime with which the defendant is charged;

(vii) any other record that the court orders be kept in the

exclusive custody of the attorney;

(viii) in a prosecution under AS 11.41.410 – 11.41.440 or

11.41.450, an audio or video interview of a victim;

(ix) in a prosecution under AS 11.41.410 – 11.41.440 or

11.41.450, photographs taken during a medical examination of

a victim.

(B) An attorney shall not disclose to a defendant the

residence or business address or telephone number of a victim

or witness, obtained from information provided under this rule,

even if the defendant is acting as co-counsel. If the address and

telephone numbers of all victims and witnesses have been

obliterated, materials that had contained the address or

telephone number of a victim or witness may be provided to a

defendant proceeding without counsel only as allowed by AS

12.61.120

number of a victim

or witness, obtained from information provided under this rule,

even if the defendant is acting as co-counsel. If the address and

telephone numbers of all victims and witnesses have been

obliterated, materials that had contained the address or

telephone number of a victim or witness may be provided to a

defendant proceeding without counsel only as allowed by AS

12.61.120.

(C) Notwithstanding a defendant’s status as co-counsel,

materials covered by subsection (d)(3)(A) shall remain in the

custody of the defendant’s attorney, the attorney’s staff,

investigators, experts, and others as necessary for the

preparation of the defendant’s case, and shall be subject to

other terms and conditions that the court may provide.

(D) If a defendant is proceeding without counsel, materi-

als covered by subsection (d)(3)(A) may be provided to the

defendant. If materials are provided to an unrepresented

defendant under this paragraph, the court shall order that the

materials remain in the defendant’s exclusive custody, be used

only for purposes of conducting the case, and be subject to

other terms, conditions, and restrictions that the court may

provide. Upon a showing of good cause, the court may impose

specific terms, conditions, or restrictions concerning inspection

of the materials by other persons involved in the preparation of

the case, such as staff, investigators, experts, witnesses, or

others. The court shall also inform the defendant and such

other persons involved in the preparation of the case that viola-

tion of an order issued under this paragraph is punishable as a

contempt of court and may also constitute a criminal offense.

ning inspection

of the materials by other persons involved in the preparation of

the case, such as staff, investigators, experts, witnesses, or

others. The court shall also inform the defendant and such

other persons involved in the preparation of the case that viola-

tion of an order issued under this paragraph is punishable as a

contempt of court and may also constitute a criminal offense.

(4) Restriction or Deferral of Disclosure of Information.

Upon a showing of cause, the court may at any time order that

specified disclosure be restricted or deferred, or make such

other order as is appropriate, provided that all material and

information to which a party is entitled shall be disclosed in

time to permit the party’s counsel to make beneficial use

thereof.

(5) Material Partially Discoverable. When some parts of

certain material are discoverable under these rules, and other

parts are not discoverable, as much of the material shall be

disclosed as is consistent with this rule. Excision of certain

material and disclosure of the balance shall be preferred to

withholding of the whole. Material excised pursuant to court

order shall be sealed and preserved in the records of the court,

and shall be made available to the court of appeals and the

supreme court in the event of an appeal.

(6) Denial or Regulation of Disclosure— Disclosure to

Court in Camera—Record of Proceedings.

Upon request of any party, the court may permit:

(A) any showing of cause for denial or regulation of

disclosure, or

(B) any portion of any showing of cause for denial or

regulation of disclosure to be made to the court in camera ex

parte. A record shall be made of such proceedings. If the court

enters an order granting relief following such a showing, the

entire record of the proceedings shall be sealed and preserved

in the records of the court, to be made available to the court of

appeals and the supreme court in the event of an appeal.

cause for denial or

regulation of disclosure to be made to the court in camera ex

parte. A record shall be made of such proceedings. If the court

enters an order granting relief following such a showing, the

entire record of the proceedings shall be sealed and preserved

in the records of the court, to be made available to the court of

appeals and the supreme court in the event of an appeal.

(7) Confidential Filing. A party that files with the court

or offers as an exhibit materials listed in subsection (d)(3)(viii)

or (d)(3)(ix) of this rule shall file the materials in a confidential

envelope. In this paragraph, “confidential” has the meaning

given in Rule 37.5, Alaska Rules of Administration.

(8) Motions.

(A) A party may file a motion to enforce discovery

obligations. The motion should be captioned “Expedited

Motion under Criminal Rule 16(d)(8).” The motion must

include copies of the documents showing that the moving party

has asked the other party to produce the materials, and that the

request described the materials with sufficient specificity to put

the other party on notice of the materials sought. The motion

must also include copies of any response by the other party to

the request for production. Finally, the motion must include an

affidavit by the moving party that it has conferred, or has

attempted to confer, with the other party in an effort to secure

the requested disclosure without court action.

(B) Any opposition to a motion to enforce discovery

obligations must be filed within 10 days of service of the

motion; any reply must be filed within five days of service of

the opposition. No enlargement of time will be granted without

a showing of extraordinary and compelling circumstances.

(C) All motions to enforce the discovery obligations

established by this rule, or by a court order under this rule,

shall be decided promptly

discovery

obligations must be filed within 10 days of service of the

motion; any reply must be filed within five days of service of

the opposition. No enlargement of time will be granted without

a showing of extraordinary and compelling circumstances.

(C) All motions to enforce the discovery obligations

established by this rule, or by a court order under this rule,

shall be decided promptly. Unless good cause exists to allow

more time, any motion to enforce the government’s disclosure

duties under subsection (b) of this rule, or to enforce the

defendant’s disclosure duties under subsection (c) of this rule,

must be decided by the court within 20 days after the motion

becomes ripe for decision, whether or not the opposing party

files an opposition. If the court fails to decide the motion

within this period, any additional delay will not be excluded in

computing the time for trial under Rule 45(d)(1).

(D) If the court issues an order directing the production of

materials within the possession of a law enforcement agency,

the prosecutor shall promptly serve that order on the law

enforcement agency responsible for providing the materials.

(e) Failure to Comply with Discovery Rule or Order..

(1) 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 an applicable discovery rule or an order

governing discovery, the court may:

(A) order that party to permit the discovery or inspection;

specify its time, place, and manner; and prescribe other just

terms and conditions;

(B) schedule and hold a discovery hearing;

(C) prohibit that party from introducing the undisclosed

evidence;

(D) grant a continuance;

(E) enter a mistrial at the request of the aggrieved party;

or

(F) enter any other order as it deems just under the

circumstances.

to permit the discovery or inspection;

specify its time, place, and manner; and prescribe other just

terms and conditions;

(B) schedule and hold a discovery hearing;

(C) prohibit that party from introducing the undisclosed

evidence;

(D) grant a continuance;

(E) enter a mistrial at the request of the aggrieved party;

or

(F) enter any other order as it deems just under the

circumstances.

(2) After notice and an opportunity to be heard, the court

may impose appropriate sanctions on any attorney who

willfully violates the disclosure duties imposed by this rule or

an applicable discovery order.

(3) Prior to making an order under paragraph (e)(1) or

(e)(2) of this rule, the court shall consider

(A) the

nature

of

the

violation,

including

the

reasonableness of the conduct and the materiality of the

information that the party failed to disclose;

(B) the prejudice to the opposing party;

(C) the relationship between the information the party

failed to disclose and the proposed sanction;

(D) whether a lesser sanction would adequately protect

the opposing party and deter other discovery violations;

(E) whether a motion was filed under paragraph (d)(8) of

this rule, if applicable; and

(F) other factors deemed appropriate by the court or

required by law.

(f) Omnibus Hearing.

(1) Time for Hearing—When Set. If the defendant is

charged with a felony, the court shall set a time for an omnibus

hearing when a plea of not guilty is entered. The omnibus

hearing shall be scheduled for a time when the briefing of

pretrial motions should be complete.

The omnibus hearing may be cancelled by the court only

upon the stipulation of counsel that there are no motions which

require hearing and that discovery is complete. Counsel shall

also provide the information outlined in section (f)(2)(D).

The court may set an omnibus hearing in a misdemeanor

case.

ing shall be scheduled for a time when the briefing of

pretrial motions should be complete.

The omnibus hearing may be cancelled by the court only

upon the stipulation of counsel that there are no motions which

require hearing and that discovery is complete. Counsel shall

also provide the information outlined in section (f)(2)(D).

The court may set an omnibus hearing in a misdemeanor

case.

(2) Duties of Trial Court at Hearing. At the omnibus

hearing the court shall:

(A) ensure that discovery under this rule is complete;

(B) rule on any pending motions which are ripe for

decision;

(C) schedule any necessary evidentiary hearings; and

(D) obtain case management information from the

parties, including the expected length of trial, the likelihood of

trial, and any anticipated scheduling difficulties.

Editor’s Note: Effective May 12, 2025, SCO 2038 amends

Criminal Rule 16(e)(1) for pretrial pending criminal cases filed

before January 1, 2023, and failure to comply with a discovery

rule or order. SCO 2038 is available on the Alaska Court

System’s website at http://courts.alaska.gov/sco/index.htm

Note:

AS 12.61.120, added by ch. 57, § 13, SLA 1991,

amended Criminal Rule 16 by restricting discovery available to

criminal defendants.

Note:

Criminal Rule 16 was repealed and reenacted by

chapter 95 SLA 1996. In State v. Summerville, 926 P.2d 465

(Alaska App. 1996), the Alaska Court of Appeals found that

the legislature’s version of the rule was unconstitutional. This

decision was affirmed by the Alaska Supreme Court in State v.

Summerville, 948 P.2d 469 (Alaska 1997). Thus, the pre-

existing version of the rule remains in effect.

Note:

Chapter 43, SLA 2013 (SB 22), effective nunc pro

tunc to July 1, 2013, amended Criminal Rule 16(b) by adding a

new paragraph (9) relating to requests by defendants to copy,

photograph, duplicate, or otherwise reproduce certain prohi-

bited material. This rule change is adopted for the sole reason

that the legislature has mandated the amendment

ing version of the rule remains in effect.

Note:

Chapter 43, SLA 2013 (SB 22), effective nunc pro

tunc to July 1, 2013, amended Criminal Rule 16(b) by adding a

new paragraph (9) relating to requests by defendants to copy,

photograph, duplicate, or otherwise reproduce certain prohi-

bited material. This rule change is adopted for the sole reason

that the legislature has mandated the amendment.

Note:

Chapter 60, sections 3-4, SLA 2014 (SB 187),

effective nunc pro tunc to July 8, 2014, amended Criminal Rule

16(d) by adding new items (viii) and (ix) to subparagraph

(3)(A), by amending subparagraph (3)(D), and by adding new

paragraph (7) limiting disclosure of recordings of victim

interviews or certain photographs in prosecutions under AS

11.41.410-.440 or AS 11.41.450. This rule change is adopted

for the sole reason that the legislature has mandated the

amendment.