PRIORITY CAMPAIGN · THE CORE ARGUMENT
Two Systems. One Country. Rule 15 Is How We Close the Gap.
In a federal criminal case, you generally cannot depose the witnesses against you — a right that exists automatically in a civil suit over money. We're asking the Federal Rules Committee to change that.
Sue someone over a business dispute and you can depose every witness under oath before trial. Get indicted in a federal criminal case — where the stakes are prison, not money — and you can depose almost none of them. That is not an accident of history; it is how the Federal Rules are written today.
Our ask is specific: amend Federal Rule of Criminal Procedure 15 to permit pretrial depositions, starting with non-violent, no-victim regulatory and white-collar cases where witness-safety objections do not apply. Roughly 20 states — including Texas — already allow criminal depositions. The federal system is the outlier.
The Justice Restoration Foundation is preparing a rules suggestion letter — not an amicus brief — to the Judicial Conference Advisory Committee on the Federal Rules of Criminal Procedure. It will be drafted with input from former federal prosecutors, current defense counsel, and academics across the political spectrum.
How This Will Help
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.
Side by Side
| YOUR RIGHT TO… | CIVIL CASEMONEY AT STAKE | FEDERAL CRIMINAL CASEBOTH YOUR MONEY AND 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%
Sources: Federal Rules of Civil Procedure 26–37 (civil discovery), Federal Rules of Criminal Procedure 15–17 (criminal discovery), Hyde Amendment fee-recovery standard (18 U.S.C. § 3006A note), and U.S. Sentencing Commission plea-vs.-trial data.
Where the Proposal Stands
The Justice Restoration Foundation is preparing an organizational rules suggestion letter — not an amicus brief — to the Judicial Conference Advisory Committee on the Federal Rules of Criminal Procedure. Our target window is the fall agenda book.
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.
A note on timing: federal rulemaking runs on multi-year cycles. Even a well-received suggestion typically moves through committee review, public comment, Judicial Conference approval, Supreme Court transmittal, and Congressional review before taking effect. The earliest realistic effective date is 2030 or later. This is a long game — worth doing precisely because it is the change most likely to actually happen.
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.