Defining “possession, custody, or control” for Rule 16 purposes

by Jamison Koehler on September 18, 2019
D.C. criminal defense attorney

Rule 16 of the D.C. Rules of Criminal Procedure requires the government to disclose certain types of evidence to a criminal defendant if, among other things, that evidence is within the government’s possession, custody, or control.”  In Weems v. United States, 191 A.3d 296 (D.C. 2018), the D.C. Court of Appeals defines each of these terms for purposes of this rule.  

“Possession” is defined as “actual possession” – “direct physical control over a thing.”  Considering that criminal liability attaches in “constructive possession” cases (that is, the proven ability and intent to exercise dominion and control over the property), this more narrow definition is surprising. 

“Custody” is defined as “the (often temporary) care and control of a thing or person for inspection, preservation, or security.” The opinion continues:  “Unless ‘possession,’ which might be understood to imply a property interest or usage of some kind, the term ‘custody’ makes clear that the government must disclose discoverable items in which it has no such interest or right and that it merely holds for the benefit of another.”

Finally, “control” applies to that situation in which the government has the “’legal right’” and ability to obtain the item from the other entity ‘upon demand.’”  In other words, the term applies in cases in which the government has “direct or indirect power” to acquire or access the materials “at will and by right.”  

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