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Case 1:20-cr-00330-PAE Document291 Filed 05/21/21 Page13o0f13 Page 13 three weeks after receipt of the witness statements. Ms. Maxwell requests the same deadline. Defense Disclosures Pursuant to Rules 16 and 26.2 and Defense Witness List Regarding the defense Rule 16 disclosures and witness lists, Ms. Maxwell proposes to produce those at the close of the government's case. As she explained in connection with Rule 26.2 disclosures (Jt. Letter of May 3, 2021), gaining access to Ms. Maxwell’s witness list and exhibits prior to trial gives an advantage to the government to the detriment of the defense. A recent decision by the Colorado Supreme Court is instructive. Finding that the state equivalent of Rule 16, like its federal counterpart, does not authorize pretrial disclosure of defendant's exhibits, the court also concluded that such disclosure "arguably infringes on [the defendant's] constitutional rights," by "helping the prosecution meet its burden of proof," "tip[s] his hand vis-a-vis his investigation and theory of defense," and "in effect, forces [him] to share with the prosecution his trial strategy — 1.e., how he plans to defend against the charges against him." People v. Kilgore, 455 P.3d 746, 751 (Colo. 2020). "Put differently, the [pretrial] disclosure requirement rests on shaky constitutional ground because it improperly risks lessening the prosecution's burden of proof." /d. Ms. Maxwell asserts that any order compelling pretrial disclosure of her witnesses or exhibits violates the due process clause of the U.S. Constitution. When the defense determines that it will put forth a case-in-chief, it will provide the name of witnesses and exhibits it intends to introduce. Respectfully submitted, AUDREY STRAUSS United States Attorney By: ___s/ Maurene Comey / Alison Moe Lara Pomerantz / Andrew Rohrbach Assistant United States Attorneys Southern District of New York DOJ-OGR-00004263