Ethan Peck | When May a Court Exclude a Defense Witness for a Discovery Violation?

BACKGROUND

In 2017, Yogesh Pancholi agreed to a five-year voluntary exclusion from participating in Medicare and Medicaid programs after being accused of paying kickbacks to doctors for patient referrals in a civil False Claims Act suit. Within a year, Pancholi secretly purchased a home-health-care company, Shring Home Health Care, Inc., using a false identity and forged ownership documents. Between November and December 2018, Shring submitted nearly 900 fraudulent payment requests to Medicare totaling more than $2.7 million. Pancholi pocketed the proceeds and transferred them to India, where much of the money remains unrecovered. He was later charged with healthcare fraud, money laundering, witness tampering, and aggravated identity theft.

In United States v. Pancholi, No. 24-1127 (6th Cir. Oct. 2025), Pancholi argued on appeal that the district court violated his Fifth and Sixth Amendment rights by excluding a defense witness as a sanction for a discovery violation. During the 2023 trial, on the final day of proceedings, Pancholi’s counsel sought to call Leena Shah, an unindicted co-conspirator, as a surprise witness. Shah had not been listed in the defense’s pretrial disclosures, and counsel admitted they had never interviewed her. The government objected, arguing that allowing her to testify would cause significant delay and prejudice its case, as Shah was under investigation and likely to invoke her Fifth Amendment right against self-incrimination.

The district court found that Pancholi had violated discovery rules by failing to identify Shah as a potential witness and excluded her testimony. Relying on Taylor v. Illinois, 484 U.S. 400 (1988), the court reasoned that while the Sixth Amendment guarantees a defendant the right to present witnesses, that right is not absolute and may yield to the fair and efficient administration of justice. United States v. Pancholi, No. 24-1127.

Starting with United States v. Hamilton, 128 F.3d 996 (6th Cir. 1997), and later reaffirmed in Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007), and United States v. Hardy, 586 F.3d 1040 (6th Cir. 2009), the Sixth Circuit has repeatedly held that bad faith is an important factor in determining whether exclusion is appropriate, but it is not a prerequisite. Here, the court reaffirmed that principle, holding that a discovery violation need not be willful for a trial court to exclude a defense witness’s testimony.

ISSUE

Is a finding of willful or bad-faith misconduct required before a trial court may exclude a defense witness’s testimony as a sanction for violating discovery rules?

THE SPLIT

Since Taylor v. Illinois left open whether bad faith is constitutionally required before excluding a defense witness, the federal circuits have divided. The question hinges on whether a negligent or unintentional discovery violation can justify the severe sanction of preclusion. The Sixth, D.C., and Tenth Circuits have held that bad faith is an important factor, but not a prerequisite, for exclusion. The Second and Ninth Circuits, however, require a finding of willfulness or bad faith before a witness may be barred.

The Sixth, D.C., and Tenth Circuits

In United States v. Pancholi, the Sixth Circuit reaffirmed that exclusion of a defense witness is permissible even when the discovery violation is not willful, so long as the court balances the defendant’s right to present evidence against the interests of fairness, prejudice, and judicial efficiency. The court emphasized that Pancholi could have easily listed Shah, that her sudden appearance would have delayed the trial, and that her potential testimony was speculative.

The D.C. Circuit first articulated this standard in United States v. Johnson, holding that while bad faith strengthens the case for exclusion, trial judges retain discretion to impose that sanction where the violation causes unfairness or delay. 970 F.2d 907 (D.C. Cir. 1992). The Tenth Circuit adopted the same view in Young v. Workman, finding that exclusion may be appropriate absent willfulness when necessary to preserve the “integrity and efficient administration of judicial proceedings.” 383 F.3d 1233 (10th Cir. 2004).

Together, these courts interpret Taylor as establishing a balancing test rather than a rigid willfulness rule, emphasizing that procedural integrity and the fair conduct of trials may sometimes outweigh a defendant’s interest in calling a witness disclosed at the eleventh hour.

The Second and Ninth Circuits

The Second and Ninth Circuits take the opposite approach, viewing bad faith as a constitutional safeguard against arbitrary exclusion.

In Noble v. Kelly, 246 F.3d 93 (2d Cir. 2001), the Second Circuit held that exclusion violates the Sixth Amendment unless the violation was “willful and motivated by a tactical advantage.” Similarly, the Ninth Circuit in United States v. Peters, 937 F.2d 1422 (9th Cir. 1991), described exclusion as a “drastic remedy” that should be applied only when the defendant or counsel acted in bad faith. Both circuits stress that the compulsory-process right is fundamental and that mere negligence should not deprive defendants of critical testimony.

LOOKING FORWARD

This split over Taylor’s reach has persisted for decades, but Pancholi broadens it by aligning the Sixth Circuit with the D.C. and Tenth Circuits’ more flexible approach. The distinction is significant: in some jurisdictions, an unintentional discovery lapse can now justify exclusion, while in others, exclusion remains reserved for deliberate misconduct.

The Supreme Court has not revisited this issue since Taylor v. Illinois in 1988, leaving lower courts to define its boundaries. Whether the Court will step in seems to depend on how frequently exclusion is used in cases lacking clear willfulness and whether the divergent standards lead to demonstrable prejudice for defendants.

For the time being, Pancholi affirms that within the Sixth Circuit, trial courts exercise substantial discretion: a lack of willfulness does not bar exclusion where the court conscientiously considers fairness, efficiency, and the proper administration of justice.

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