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James John Hare Bart Clear and concise introduction to value investing I found the book informative. I prefer to stay anonymous As stated in the Advisory Committee Note,. The Committee, therefore, endorses the principle that witness lists are discoverable.
However, the Committee has attempted to strike a balance between the narrow provisions of existing law and the broad provisions of the proposed rule.
The Committee rule makes the procedures defendant-triggered. If the defendant asks for and receives a list of prosecution witnesses, then the prosecution may request a list of defense witnesses. The witness lists need not be turned over until 3 days before trial. The court can modify the terms of discovery upon a sufficient showing. Thus, the court can require disclosure of the witness lists earlier than 3 days before trial, or can permit a party not to disclose the identity of a witness before trial.
The Committee provision promotes broader discovery and its attendant values—informed disposition of cases without trial, minimizing the undesirable effect of surprise, and helping insure that the issue of guilt or innocence is accurately determined.
At the same time, it avoids the problems suggested by both the prosecutors and the defenders. The major argument advanced by prosecutors is the risk of danger to their witnesses if their identities are disclosed prior to trial. The Committee recognizes that there may be a risk but believes that the risk is not as great as some fear that it is.
Numerous states require the prosecutor to provide the defendant with a list of prosecution witnesses prior to trial. Some federal jurisdictions have adopted an omnibus pretrial discovery procedure that calls upon the prosecutor to give the defendant its witness lists.
One such jurisdiction is the Southern District of California. The evidence before the Committee indicates that there has been no unusual problems with witness intimidation in that district. The Government in one of its statements to this committee indicated that providing the defense with witness lists will cause coerced witness perjury. This does not happen.
We receive Government witness lists as a matter of course in the Southern District, and it's a rare occasion when there is any overture by a defense witness or by a defendant to a Government witness. It simply doesn't happen except on the rarest of occasion. When the Government has that fear it can resort to the protective order. Sevilla's observations are corroborated by the views of the U. Attorney for the Southern District of California:.
Concerning the modifications to Rule 16, we have followed these procedures informally in this district for a number of years.
We were one of the districts selected for the pilot projects of the Omnibus Hearing in or We have found that the courts in our district will not require us to disclose names of proposed witnesses when in our judgment to do so would not be advisable. Otherwise we routinely provide defense counsel with full discovery, including names and addresses of witnesses.
We have not had any untoward results by following this program, having in mind that the courts will, and have, excused us from discovery where the circumstances warrant. Much of the prosecutorial criticism of requiring the prosecution to give a list of its witnesses to the defendant reflects an unwillingness to trust judges to exercise sound judgment in the public interest.
Prosecutors have stated that they frequently will open their files to defendants in order to induce pleas. Prosecutors are willing to determine on their own when they can do this without jeopardizing the safety of witnesses. There is no reason why a judicial officer cannot exercise the same discretion in the public interest.
The Committee is convinced that in the usual case there is no serious risk of danger to prosecution witnesses from pretrial disclosure of their identities. In exceptional instances, there may be a risk of danger. The Committee rule, however, is capable of dealing with those exceptional instances while still providing for disclosure of witnesses in the usual case.
The Committee recognizes the force of the constitutional arguments advanced by defenders. Requiring a defendant, upon request, to give to the prosecution material which may be incriminating, certainly raises very serious constitutional problems. The Committee deals with these problems by having the defendant trigger the discovery procedures. Since the defendant has no constitutional right to discover any of the prosecution's evidence unless it is exculpatory within the meaning of Brady v.
Rule 16 currently operates in this manner. The subsections proposed by the Supreme Court are cast in terms of the type of document involved e. The Committee added language to subdivision a 1 B to conform it to provisions in subdivision a 1 A.
The Committee also made a similar conforming change in subdivision a 1 E , dealing with the criminal records of government witnesses. The prosecutor can ordinarily discharge his obligation under these two subdivisions, a 1 B and E , by obtaining a copy of the F. The Committee made an additional change in subdivision a 1 E. The proposed rule required the prosecutor to provide the defendant with a record of the felony convictions of government witnesses.
The major purpose for letting the defendant discover information about the record of government witnesses, is to provide him with information concerning the credibility of those witnesses. Rule a of the Federal Rules of Evidence permits a party to attack the credibility of a witness with convictions other than just felony convictions. The Committee, therefore, changed subdivision a 1 E to require the prosecutor to turn over a record of all criminal convictions, not just felony convictions.
The Committee changed subdivision d 1 , which deals with protective orders. Proposed d 1 required the court to conduct an ex parte proceeding whenever a party so requested. The Committee changed the mandatory language to permissive language. A Court may, not must, conduct an ex parte proceeding if a party so requests.
Thus, if a party requests a protective or modifying order and asks to make its showing ex parte, the court has two separate determinations to make. First, it must determine whether an ex parte proceeding is appropriate, bearing in mind that ex parte proceedings are disfavored and not to be encouraged.
Rule 16 deals with pretrial discovery by the defendant and the government. The House and Senate versions of the bill differ on Rule 16 in several respects. Reciprocal vs. Independent Discovery for the Government. If the defendant requires and receives certain items from the government, then the government is entitled to get similar items from the defendant. The Senate version of the bill gives the government an independent right to discover material in the possession of the defendant.
The Senate version limits discovery of this material to testimony of a witness who was, at the time of the grand jury proceeding, so situated as an officer or employee as to have been legally to bind the defendant in respect to the activities involved in the charges. The Conferees share a concern that during investigations, ex-employees and ex-officers of potential corporate defendants are a critical source of information regarding activities of their former corporate employers.
It is not unusual that, at the time of their testimony or interview, these persons may have interests which are substantially adverse to or divergent from the putative corporate defendant.
It is also not unusual that such individuals, though no longer sharing a community of interest with the corporation, may nevertheless be subject to pressure from their former employers. Such pressure may derive from the fact that the ex-employees or ex-officers have remained in the same industry or related industry, are employed by competitors, suppliers, or customers of their former employers, or have pension or other deferred compensation arrangements with former employers.
The Conferees also recognize that considerations of fairness require that a defendant corporation or other legal entity be entitled to the grand jury testimony of a former officer or employee if that person was personally involved in the conduct constituting the offense and was able legally to bind the defendant in respect to the conduct in which he was involved. The Conferees decided that, on balance, a defendant organization should not be entitled to the relevant grand jury testimony of a former officer or employee in every instance.
However, a defendant organization should be entitled to it if the former officer or employee was personally involved in the alleged conduct constituting the offense and was so situated as to have been able legally to bind the defendant in respect to the alleged conduct.
The Conferees note that, even in those situations where the rule provides for disclosure of the testimony, the Government may, upon a sufficient showing, obtain a protective or modifying order pursuant to Rule 16 d 1. The Conference adopts a provision that permits a defendant organization to discover relevant grant jury testimony of a witness who 1 was, at the time of his testimony, so situated as an officer or employee as to have been able legally to bind the defendant in respect to conduct constituting the offense, or 2 was, at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been able legally to bind the defendant in respect to that alleged conduct in which he was involved.
Rules 16 a 1 E and b 1 C witness lists. The Senate version of the bill eliminates these provisions, thereby making the names and addresses of a party's witnesses nondiscoverable. The Senate version also makes a conforming change in Rule 16 d 1. The Conference adopts the Senate version. A majority of the Conferees believe it is not in the interest of the effective administration of criminal justice to require that the government or the defendant be forced to reveal the names and addresses of its witnesses before trial.
Discouragement of witnesses and improper contact directed at influencing their testimony, were deemed paramount concerns in the formulation of this policy. Rules 16 a 2 and b 2. Note to Subdivision a 3. The added language is made necessary by the addition of Rule The amendment to Rule 16 a 1 A expands slightly government disclosure to the defense of statements made by the defendant. The rule now requires the prosecution, upon request, to disclose any written record which contains reference to a relevant oral statement by the defendant which was in response to interrogation, without regard to whether the prosecution intends to use the statement at trial.
The change recognizes that the defendant has some proprietary interest in statements made during interrogation regardless of the prosecution's intent to make any use of the statements. The written record need not be a transcription or summary of the defendant's statement but must only be some written reference which would provide some means for the prosecution and defense to identify the statement.
Otherwise, the prosecution would have the difficult task of locating and disclosing the myriad oral statements made by a defendant, even if it had no intention of using the statements at trial. In a lengthy and complicated investigation with multiple interrogations by different government agents, that task could become unduly burdensome. The existing requirement to disclose oral statements which the prosecution intends to introduce at trial has also been changed slightly.
Under the amendment, the prosecution must also disclose any relevant oral statement which it intends to use at trial, without regard to whether it intends to introduce the statement.
Thus, an oral statement by the defendant which would only be used for impeachment purposes would be covered by the rule. The introductory language to the rule has been modified to clarify that without regard to whether the defendant's statement is oral or written, it must at a minimum be disclosed. Although the rule does not specify the means for disclosing the defendant's statements, if they are in written or recorded form, the defendant is entitled to inspect, copy, or photograph them.
New subdivisions a 1 E and b 1 C expand federal criminal discovery by requiring disclosure of the intent to rely on expert opinion testimony, what the testimony will consist of, and the bases of the testimony.
The amendment is intended to minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert's testimony through focused cross-examination.
Like other provisions in Rule 16, subdivision a 1 E requires the government to disclose information regarding its expert witnesses if the defendant first requests the information. Once the requested information is provided, the government is entitled, under b 1 C to reciprocal discovery of the same information from the defendant. The disclosure is in the form of a written summary and only applies to expert witnesses that each side intends to call. Although no specific timing requirements are included, it is expected that the parties will make their requests and disclosures in a timely fashion.
With increased use of both scientific and nonscientific expert testimony, one of counsel's most basic discovery needs is to learn that an expert is expected to testify. This is particularly important if the expert is expected to testify on matters which touch on new or controversial techniques or opinions. The amendment is intended to meet this need by first, requiring notice of the expert's qualifications which in turn will permit the requesting party to determine whether in fact the witness is an expert within the definition of Federal Rule of Evidence The court is also authorized to limit discovery to portions of items sought.
Palermo v. United States , U. United States , F. Subdivision c. While the government normally has resources adequate to secure the information necessary for trial, there are some situations in which mutual disclosure would appear necessary to prevent the defendant from obtaining an unfair advantage. For example, in cases where both prosecution and defense have employed experts to make psychiatric examinations, it seems as important for the government to study the opinions of the experts to be called by the defendant in order to prepare for trial as it does for the defendant to study those of the government's witnesses.
Or in cases such as antitrust cases in which the defendant is well represented and well financed, mutual disclosure so far as consistent with the privilege against self-incrimination would seem as appropriate as in civil cases. State cases have indicated that a requirement that the defendant disclose in advance of trial materials which he intends to use on his own behalf at the trial is not a violation of the privilege against self-incrimination.
See Jones v. Superior Court , 58 Cal. Lopez , 60 Cal. Subdivision d. Subdivision e. Control of the abuses of discovery is necessary if it is to be expanded in the fashion proposed in subdivisions a and b. Among the considerations to be taken into account by the court will be the safety of witnesses and others, a particular danger of perjury or witness intimidation, the protection of information vital to the national security, and the protection of business enterprises from economic reprisals.
For an example of a use of a protective order in state practice, see People v. See also Brennan, Remarks on Discovery, 33 F. In some cases it would defeat the purpose of the protective order if the government were required to make its showing in open court. The problem arises in its most extreme form where matters of national security are involved. Hence a procedure is set out where upon motion by the government the court may permit the government to make its showing, in whole or in part, in a written statement to be inspected by the court in camera.
If the court grants relief based on such showing, the government's statement is to be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the defendant, Cf. Subdivision f. Normally one motion should encompass all relief sought and a subsequent motion permitted only upon a showing of cause. Where pretrial hearings are used pursuant to Rule Subdivision g.
The duty provided is to notify the other party, his attorney or the court of the existence of the material. A motion can then be made by the other party for additional discovery and, where the existence of the material is disclosed shortly before or during the trial, for any necessary continuance. The second sentence gives wide discretion to the court in dealing with the failure of either party to comply with a discovery order.
Such discretion will permit the court to consider the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances. Rule 16 is revised to give greater discovery to both the prosecution and the defense. Subdivision a deals with disclosure of evidence by the government.
Subdivision b deals with disclosure of evidence by the defendant. The majority of the Advisory Committee is of the view that the two—prosecution and defense discovery—are related and that the giving of a broader right of discovery to the defense is dependent upon giving also a broader right of discovery to the prosecution. The draft provides for a right of prosecution discovery independent of any prior request for discovery by the defendant.
The Advisory Committee is of the view that this is the most desirable approach to prosecution discovery. The court, however, has the inherent right to enter an order under this rule.
The rule is intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases. For example, subdivision a 3 is not intended to deny a judge's discretion to order disclosure of grand jury minutes where circumstances make it appropriate to do so. Subdivision a 1 A amends the old rule to provide, upon request of the defendant, the government shall permit discovery if the conditions specified in subdivision a 1 A exist.
Some courts have construed the current language as giving the court discretion as to whether to grant discovery of defendant's statements. See United States v. Kaminsky , F. Diliberto , F. Louis Carreau , Inc. In United States v. Wallace , F. Wood , F. Leighton , F. Longarzo , 43 F. Other courts have held that even though the current rules make discovery discretionary, the defendant need not show cause when he seeks to discover his own statements.
Aadal , F. Federmann , 41 F. Projansky , 44 F. The amendment making disclosure mandatory under the circumstances prescribed in subdivision a 1 A resolves such ambiguity as may currently exist, in the direction of more liberal discovery.
See C. Rule 35—11 a This is done in the view that broad discovery contributes to the fair and efficient administration of criminal justice by providing the defendant with enough information to make an informed decision as to plea; by minimizing the undesirable effect of surprise at the trial; and by otherwise contributing to an accurate determination of the issue of guilt or innocence.
La Gay , U. See also Leland v. Oregon , U. The requirement that the statement be disclosed prior to trial, rather than waiting until the trial, also contributes to efficiency of administration. It is during the pretrial stage that the defendant usually decides whether to plead guilty. Projansky , supra. The pretrial stage is also the time during which many objections to the admissibility of types of evidence ought to be made. Pretrial disclosure ought, therefore, to contribute both to an informed guilty plea practice and to a pretrial resolution of admissibility questions.
The American Bar Association Standards mandate the prosecutor to make the required disclosure even though not requested to do so by the defendant. Brady v. Maryland , U. See Discovery in Criminal Cases, 44 F.
Elife , 43 F. Armantrout , F. Scharf , F. Morrison , 43 F. Black , F. The court in United States v. Iovinelli , F. The Jencks Act, 18 U. See Campbell v. The draft of subdivision a 1 A leaves the matter of the meaning of the term unresolved and thus left for development on a case-by-case basis.
Subdivision a 1 A also provides for mandatory disclosure of a summary of any oral statement made by defendant to a government agent which the attorney for the government intends to use in evidence.
The reasons for permitting the defendant to discover his own statements seem obviously to apply to the substance of any oral statement which the government intends to use in evidence at the trial.
Certainly disclosure will facilitate the raising of objections to admissibility prior to trial. There have been several conflicting decisions under the current rules as to whether the government must disclose the substance of oral statements of the defendant which it has in its possession. United States v. Baker , F. Curry , F. Reid , 43 F. There is, however, considerable support for the policy of disclosing the substance of the defendant's oral statement.
Curry , supra; Loux v. Baker , supra. The traditional rationale behind grand jury secrecy—protection of witnesses—does not apply when the accused seeks discovery of his own testimony.
Dennis v. In interpreting the rule many judges have granted defendant discovery without a showing of need or relevance. Gleason , F. United Concrete Pipe Corp. In a situation involving a corporate defendant, statements made by present and former officers and employees relating to their employment have been held discoverable as statements of the defendant. Hughes , F. Subdivision a 1 B allows discovery of the defendant's prior criminal record.
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