V4 ,

.J 8?/'

,1 )0 -0

o o '

93 -6 1 PROPOSED AMENDMENTS TO F E D E R A I^ S j X 

GOVERN MEIN i RULES OF CRIMINAL PROC EDURE

Storage

C U M E N T S

APR 2 2 1975

H E A R IN G

* BEFO RE TH E

SUBCOMMITTEE ON CRIMINAL JUSTICE

T H E L I B R A R Y

K A N S A S S T A T E U N IV E R S IT Y BEFO RE TH E

OF T H E

COMMITTEE ON TH E JUD ICIARY 

HOUSE OF RE PRESENTATIV ES

NINETY -TH IRD CONGRESS

SE CO ND SE SS IO N

ON

PR OPO SE D AMEN DMEN TS TO FED ER A L RULES OF 

CRI M IN AL PROCEDURE

SE PTEM B ER 17, 1974

Serial No. 61

P ri nte d f or t he u se o f th e Co mmitt ee on t he Ju d ic ia ry

44-625

U.S . GOVER NMENT PR IN TING OF FIC E 

WA SHING TON : 1975
\ *

CO MMIT TE E ON T H E JU D IC IA L t '• ' 1

•- > » v .1 j v y

PE T E R W. RO DINO , J r., New Je rs ey , Ch airm an

HA RO LD D. DO NO HU E, M as sa ch use tts 

JA CK BR OO KS, Tex as 

RO BE RT W. KAST EN M EI ER , W isc on sin 

DON ED WAR DS , C al if orn ia 

W IL LI AM L. IIU NG AT E, M iss ou ri 

JO HN CO NY ERS, J r., Mich iga n 

JO SH UA E IL BERG , Pen ns ylv an ia 

JE ROM E R. W ALD IE , Cal ifor ni a 

WAL TE R FL OW ER S, Al abam a 

JA M ES It. MANN, So ut h Car olina 

PA UL S. SA RB AN ES , M arylan d 

JO HN F. SEIB ERLIN G , Ohio 

GE OR GE E. DA NI EL SO N, Cal ifor ni a 

RO BE RT F. DR IN AN , M as sa ch us et ts 

CH ARL ES B. RA NG EL , New York 

BA RBAR A JO RD AN , Te xa s 

RAY TH OR NT ON , A rk an sa s 

ELI ZA BET H HO LTZM AN , New York 

WA YNE OW EN S, U ta h 

ED WA RD ME ZV INSK Y, Iowa

ED WAR D HU TC HI NS ON , Michig an 

RO BE RT M cCL ORY, Il lin oi s 

HE NR Y P. SM IT H III, New York 

CH ARL ES W. SANDM AN, J r ., New Je rs ey 

TOM RA ILSB AC K, Il linois 

CH ARL ES E. WIG GI NS , C al ifor ni a 

DA VI D W. DE NNIS , In dia na 

HAM IL TO N FIS H , J R „ New York 

W IL EY MAYNE , Iowa 

LA WRE NC E J. HOGAN , M ar yl an d 

M. CA LD WEL L BU TL ER , Virgi ni a 

W IL LI AM S. CO HE N, Maine 

TREN T LO TT , M issis sip pi 

HA RO LD V. FRO EH LIC H , W isc on sin 

CA RLOS J . MO ORHE AD , C al if or ni a 

JO SE PH J . MAR AZ ITI, New Je rs ey 

D ELB ERT L. LA TT A, Ohio

J erome M. Zeif m an, Ge neral Co uns el

Garner J. Clin e, Ass oci at e Ge ner al Co unsel

H erbert F u c h s, Co un sel

William P. Sh a tt uck, Co unsel

II. Ch ris toph er Nolde, Co uns el

Alan A. P ar ke r, Co un sel

J am es F . F alco, Co unsel

Mauric e A. Barboza, Co unsel

F ra nk lin G. P o lk, Co uns el

T ho ma s E. Mooney, Co unsel

Mic hael W. Blo mmer, Co unsel

Alexa nder B . Coo k, Co un sel

Alan F. Cof fe y, J r., Co uns el

Con st an tine J. Gek a s, Co unsel

Subcommittee on Crim ina l J ustice

W ILLI AM L. IIU NG AT E, M iss ou ri, Ch airm an

RO BE RT W. KA ST EN M EI ER , W isc on sin 

DON ED WAR DS , Cal ifor ni a 

JA M ES R. MANN, So ut h Carolina 

ELI ZA BET H HO LTZM AN , New York

HE NR Y P. SM IT H III , New York 

DA VI D W. DE NN IS, In dia na 

W ILEY MAYNE , Iowa 

LA WRE NC E J. HOGAN , M ar yl an d

T ho ma s W. H utc his on, Co unsel

Robert J. T ra ino r, Co unsel

Steph en P. L yn ch, Re sear ch A ss is ta nt

Mic ha el W. Blo mme r, Ass oc ia te Co unsel

(II)
C O N T E N T S

Testimony of— Page

Lumbard, Judge J. Edward, Second Circuit Court of Appeals, Chairman, Advisory Committee on Criminal Rules, Judicial Conference 

of the United States; Judge Roszel C. Thomsen, U.S. District 

Court, District of Maryland, Chairman, Standing Committee on 

Rules of Practice and Procedure, Judicial Conference of the United 

States; Judge William H. Webster, Eighth Circuit C ourt of Appeals; 

and Prof. Frank J. Rem ington, University of Wisconsin Law School, 

repo rter, Advisory Committee on Criminal Rules_______________ 2,165

Prepared statements and attachm ents_______________________ 8

Rakestraw, W. Vincent, Assistant Attorney General, legislative

affairs, U.S. Departme nt of Justice, accompanied by II. M. Ray,

U.S. atto rney, Northern District of Mississippi; Richard L. Thornburgh, U.S. attorney, Western District of Pennsylvania; Ilenry F. 

Greene, executive assista nt U.S. attorney, District of Columbia; 

and Michael W. Dolan, attorn ey, Department of Jus tice_________ 38

Prepared s tatem ent and supporting m aterials________________ 40

Semmel, Herbert, Center for Law and Social Policy, Washington,

D.C.; Howard Lesnick, School of Law, University of Pennsylvania; 

and G. James Frick, Washington Council of Lawyers___________ 170

Prepared statements of :

Prof. Howard Lesnick________________________________ 203

Herbert Semmel_____________________________________ 186

Correspondence—

Ray , II. M., U.S. atto rney, U.S. Dep artm ent of Justice, Oxford,

Webster, Judg e William II., U.S. Cou rt of Appeals, Eighth Circuit,

St. Louis, Mo., July 29, 1974, to Hon. William L. Hu ng ate______ 20

Additional material—

“C omments of U.S. Atto rneys on New Amendments to Federal Rules 

of Criminal Procedure,” May 31, 1974______ _____ ___________ 53

(in)

PROPOSED AMENDMENTS TO FEDERAL RULES OF 

CRIMINAL PROCEDURE

TU ESDA Y, SE PT EM BE R 17, 1974

'4

H ouse of Representatives,

Subcommittee on Crim ina l J ustice

of tiie Committee on the J udiciary,

M 'Washington. D.C.

The subcom mittee met, pu rsua nt to notice, at 9:30 a.m., in room 

2141, Ra yb ur n House Office Bu ild ing, Ho n. William L. Hun ga te 

[ch air man of the sub com mittee], presidin g.

Pr es en t: Repre sen tative s Ilun ga te, Ka ste nm eie r, Sm ith , and 

Den nis.

Also pr esen t: Thomas W. Hu tch iso n, counsel; Ste phen P. Lynch, 

rese arch as sis tant; an d Michael W. Blo mm er, assoc iate counsel.

Mr. H ungate. The committee will be in o rde r.

Th is mo rning we st art h earin gs into the substan ce of the proposed 

amend ments to the Federal Rules of Crimina l Procedure . These 

ame ndm ents were prom ulg ate d by the Supre me Court on Ap ril 22,

1974, to become effective on Au gust 1, 1974. Cong ress, however, enacted legislation postp oning th e effective da te for 1 year, to Augus t 1,

1975. The Pr esiden t sign ed this leg islation on Ju ly 30, 1974, and it 

became Pu bli c Law 93-3G1.

The effective da te of the pro posed ame ndm ents was postpon ed in 

order to give C ong ress adequate time in which to study all of th e proposed c hanges, some o f which a re quite controversial. Th e subcommittee 

is tod ay begin nin g a close study of all of the proposed ch anges. We will 

he ar from the Ju dicial Conferenc e of the Un ite d Sta tes, the Justice 

1 )epartm ent, and th e Cen ter fo r L aw and Social Pol icy, headquarte red 

here in W ashin gto n, D.C. We will he ar fro m oth er intere sted org a- 

' niz ations an d ind ividuals at future hearings.

We begin with the Judic ial Con ference, which is responsible for 

dra ft in g the p roposed amendments. The initial work on the proposed 

4

 amend ments was done bv the A dvisory Com mittee on Crimina l Rides.

Ju dg e J. Edw ar d Lu mb ard , a sen ior cir cu it judg e from the second 

cir cu it and chair ma n of the adv isory committee, is here tod ay. Ju dg e 

William TT. W ebste r of the Eig ht h Circu it Court of Ypnea^s, a mem ­

ber of the advisorv committee, and Pr of . Fra nk J. Remington of 

the Un iversit y of Wisconsin Law School, repo rte r to the advisory 

com mittee, accompan y Ju dg e Lu mbard. The other Ju dicial (Conference com mittee th at worked on the proposed amend ments is the 

St an ding Comm ittee on Rules of Pr actic e and Procedure," eh air ed bv 

Ju dg e Roszel C. Thomsen. Ju dg e Thomsen, a senior di stric t jud ge 

(1)
2

from th e di st ri ct of M ar yl an d, is also he re, as is W illiam E . Fo ley, 

de puty d irec to r of the a dm in is trat iv e ollice o f th e U. S. c ou rts .

W e w elco me you ge ntlem en here , a nd we are gra te fu l to yo u fo r yo ur 

wo rk. A nd you m ay proceed as you see fit.

TESTIMONY OF JUDGE J. EDWARD LUMBARD, SECOND CIRCUIT

COURT OF APPEALS, CHAIRMAN, ADVISORY COMMITTEE ON

CRIMINAL RULES, JUDICIAL CONFERENCE OF THE UNITED

STATES: JUDGE ROSZEL C. THOMSEN, U.S. DISTRICT COURT, DISTRICT OF MARYLAND, CHAIRMAN, STANDING COMMITTEE ON

RULES OF PRACTICE AND PROCEDURE, JUDICIAL CONFERENCE

OF THE UNITED STATES; JUDGE W ILLIAM H. WEBSTER, EIGHTH

CIRCUIT COURT OF APPEALS; AND PROF. FRANK J. REMINGTON,

UNIVERSITY OF WISCONSIN LAW SCHOOL, REPORTER, ADVISORY

COMMITTEE ON CRIMINAL RULES

Ju dge T iio mse n. M v name is Roszel C. Th om sen. T am a se ni or d is ­

tr ic t judg e of the di st ri ct of M ar yl an d, ap po in te d in 1954, ha vi ng 

ser ved a s chief ju dg e fiom 1955 to 1970.

T have been ch ai rm an o f t he S ta ndin g C om mitt ee on R ules o f P ra ctice an d Pro ce du re on ly since Oc tobe r 1973. B ut my ex pe rie nce w ith 

the ad op tio n an d am en dm en t of Fed er al ru le s goes back to th e 1930’s, 

when, as a y ou ng l aw ye r, I was a m em be r o f a c om mi ttee ap po in te d by 

Ju dge Che sn ut to co nsider t he pr op os ed n ew rules o f civ il proc ed ure. 

I also ha d th e good fo rtune to be one of tw o lawye rs from M ar yl an d 

wh o atte nd ed a session of the Ju dic ia l Co nferen ce of t he F o u rt h C ir ­

cu it, at wh ich Chi ef Ju st ic e H ug he s pr es ided , wh ere all th e ju dg es 

an d lawye rs pr es en t discus sed th e most co nt ro ve rsial pr ov isions of 

th e prop osed rules.

You may reca ll th at as fa r ba ck as 1792 (t he ac t of May 8, 1792, 1 

S ta t. 27 6), Co ng res s ha d giv en t he Su pr em e C ou rt p ow er to p re sc ribe 

th e proc ed ur e in com mo n law , eq ui ty an d ban kr upt cy cases, an d th a t 

th e Cou rt ha d pr om ul ga te d eq uity a nd ad m ir al ty rule s. The C ou rt di d 

no t exe rcis e its st at uto ry ru le m ak in g au th ori ty in th e com mon law 

field, an d th e la tt er was with dr aw n by t he C on fo nnity Act o f Ju n e 1, 

1872, C. 255, § 5 ,1 7 Sta t. 197. Rev. Sta t. § 914 (1878), wh ich c onfirme d 

th e then ex istin g prac tic e of co nf or m in g to Sta te pr oc ed ur e in commo n law cases. B ut in 1934, by th e act of Ju n e 19, 1934, Co ng ress em ­

po we red t he C ourt n ot on ly to pr es crib e ru les of p roce du re f or ac tio ns 

a t law , bu t als o to un ite th e pr oc ed ur e in eq uity an d at law so as to 

sec ure one form of civil act ion .

T h at ac t pr ov id ed th at if th e Cou rt sh ou ld dec ide t o u nite law an d 

eq uity pra ctice, th e un ite d ru les sh ou ld n ot take e ffect unt il aft er th ey 

ha d been re po rted t o Co ngres s a t th e be gi nn in g of a session an d unt il 

aft er th e close of th e session.

The Couid . as we all kno w, exerc ise d its au th ori ty un de r th e ac t of 

1934 by ad opt in g th e Fe de ra l Rules of Civ il Pro ce du re unit in g law 

an d eq uity prac tic e.

Sho rt ly pri or th er et o, th e ac t of F eb ru ary 24, 1933, 47 Sta t. 399, 

ha d gr an te d th e C ourt a uth ori ty to m ak e pr oc ed ur al rules in cr im in al 

cases subseq ue nt to ve rd ict, fin ding , or pl ea of guil ty ; an d th e ac t
3

of Ju ne 29, 1940, 54 Stat. G88, extend ed th is pow er to the pro ced ure 

in such cases pr io r to verdict, find ing , or plea, sub ject to th e req uir eme nt th at an y rules rel ati ng to the la tter procedure should be rep orted 

to Congress before the y took effect. Und er these sta tut es, the Fe de ral 

Rules of Crim ina l Pro ced ure were pres cribed by the Court.

Th ere were three subsequent stat ut or y developments of cu rre nt in ­

terest. By the act of May 10, 1900, 64 St at. 158, th e req uir em ent th at 

any such rules pro mu lga ted by the S uprem e Co urt shou ld be reporte d 

to Congress a t t he be gin nin g o f a session, was modified to perm it them 

to be reporte d at any time af te r the be gin ning of a session up to May 1, 

and the lim ita tio n upo n th eir effective da te was advanced fro m the

* close of the session un til the exp ira tio n of 90 day s a fter th e rules were 

rep orted to Congress.

Th e second develop men t was the gr an t to the Co urt by the act of 

October 3, 1964, 78 Stat. 1001, of full rulem aking a utho rity to gov ern 

■ 4 pra ctice an d pro ced ure under th e B an kr up tcy Act.

Th e th ir d develop ment was the consolidation by the act of November 6, 1966, 80 St at. 1323, of the civil rulem aking power gr an ted by 

three sections of the code (§§ 2072, 2073, an d 2074 of title 28 ), in an 

amended § 2072, and the b roa denin g o f the pow er to include th e p roc edu re in th e courts of appeals.

In th e pr ep ar atio n of the R ules o f Civil Procedure and the R ules o f 

Cr im inal Procedure ado pted in the 1930’s and the 1940’s th e Co urt 

availed its elf of the help of advis ory com mittees composed of judg es, 

law yers , a nd legal scho lars, whose functio n has been to prep are d ra fts, 

circulat e the m widely, consider the commen ts and suggestions of the 

bench and bar, an d the n pre sen t to the Co urt a defin itive d ra ft f or it s 

con sideration.

It is im po rta nt, however, th at af te r pro cedural rules are adopted , 

their ap plicati on an d effect be con tinuously studie d, so th at changes 

whi ch are indic ate d by experience can be made with reas ona ble 

promptness. An d it is equally im po rta nt th at an organizatio n exi st 

which is pr ep ar ed to receive and stu dy th e suggestion s of the public 

in this r egard.

Th e act of Ju ly 11, 1958, 78 St at. 356, amen ded section 331 of title 

28, U nited St ates Cotie, to autho riz e the Ju dicial Conference to carry 

on a con tinu ous s tudy of the o perat ion a nd effect o f the rule s o f pr ac ­

tice an d pro ced ure prescrib ed by the Suprem e C ou rt fo r th e other U.S .

* courts, and to recommend to the C ou rt fro m tim e to time, such changes 

in and additio ns to them as the conference m ight deem desirable.

To hav e direct responsibility fo r this prog ram, the conference au ­

tho rized the Ch ief Justi ce to ap po int a sta nd in g com mittee on rule s 

x of pract ice and procedure, and, re po rting to the sta nd ing committee,

advisory com mittees to work in the separat e fields of pro ced ure as 

needed fro m tim e to time, each advisory c ommittee to be assi sted by a 

legal sch ola r as re porte r.

Pu rs ua nt to tha t au tho rity, th e Ch ief Jus tic e appoint ed a St an ding 

Com mittee on Rules of Pract ice and Procedure , and Ad vis ory Com ­

mittees on C ivil Rules, Crimina l Rules, Adm ira lty R ules, Ba nk ruptcy 

Rules and Ap pe lla te Rules, and later, an Advisory Com mittee on 

Rules of E vidence. A ll of these com mittees were and stil l are composed 

of lawy ers, jud ges an d law p rofe ssors f rom all over th e country, havin g 

variou s point s of view on the problems involved. I serv ed on the
Ad vis ory Com mittee on Civ il Rules from 1959 un til 1973, and can 

te stify to how th at committee opera ted . Dur in g muc h of the time 

Be njam in Kap lan, then a pro fessor at the Har va rd La w School and 

now a ju dge of th e Supreme Jud icial Co urt o f M assach usetts, w as our 

repo rte r. His successors and the repo rte rs of the othe r committees, 

inc lud ing P rofessor R em ington , Re po rte r of the Ad vis ory C ommittee 

on C rim ina l Rules,"have been m en o f o utsta nd ing a bil ity . Th e repo rte r 

studie s the procedura l problems raised by new statu tes , recent decisions, 

lette rs fro m law yer s and jud ges , and articles in law reviews. He 

pre sen ts these problems, with variou s possible solution s, to the members 

of the c ommittee, who discuss the problems and agre e in princ iple on 

wh at should be done. The repo rte r then pre pares a d ra ft of a rule 

and accom pan ying note which is mailed to the mem bers of the commi ttee and discussed at len gth , sometimes with gr ea t sp irit, pro and 

con, at the ne xt meeting. A fter a gro up of pro posed rules and 

accom pan ying notes has been develop ed, the y are pr in te d an d circulated among the bench and bar, with a request th at comments 

be su bm itte d by a g iven dale, u sua lly ab out a y ear in the futur e.

Before con sidering amend ments to the civil rules re la tin g to dis ­

covery, which were finally adopted in 1970, the advis ory com mittee 

ha d a stu dy made by a gro up hea ded by Professor Rosen ber g of the 

Columbia Law School, who interv iew ed law yers and jud ges in every 

State , an d develo ped a mass of stati stics, com ments, an d other inform ation. sho win g wh at was the n being done and how vario us groups and 

ind ivi du als tho ug ht the process could be improved.

In some of the circuits the pro posed rule s are discussed by judges 

and law yers at t he a nnual Ju di ci al Confe rence; in othe r cir cu its they 

are discussed by the judges. But b ar a ssociations and othe r intere sted 

gro ups of law yers, rep res entin g varie d points of view, as well as 

the De pa rtm en t of Justfce, stu dy the pro posed rules and send their 

comments to the rep ort er. He sum marize s them in a repo rt to the 

advisory comm ittee, which con side rs the m, d ebates the pro posed rules 

again , usually ma kin g changes, some time s many changes . Of course, 

at times a com mittee has to vote for or ag ain st a ho tly contested 

pro posal, but th at is ne ver done u ntil all sides have been fu lly pre sented 

and considered .

A fter approv al by the advisory comm ittee, the final dra ft of proposed new rules or ame ndm ents to old rule s is sen t to the sta nd ing 

com mittee, which studies the proposed new rule s and am end ments, discusses th em w ith repres entative s of the ad visory comm ittee, sometimes 

ma kin g a numb er of changes and in a few insta nces, circulating the 

proposed final dra ft amo ng the bench and bar. After the sta nd ing 

com mittee has appro ved the proposed rule s, its ch air ma n, who from 

1958 to 1973 was Ju dg e Al bert B. Ma ris, a senior cir cuit jud ge of 

the t hi rd cir cuit, and one of the most r especte d judges in the c ountry, 

repo rts the final dr af t, inclu din g the advisory com mittee notes, to 

the Ju di ci al Conference of the United Sta tes , which conside rs them 

at one of its se mia nnu al meetings.

After approv al by the Ju di ci al Conference of the United Sta tes, 

the proposed rules and amend ments are sent to the Supre me Co urt , 

which usu ally con side rs them fo r a period of 6 m onths or m ore, and 

on one occasion at least h as dir ected t hat the final dra ft be sent aga in 

to the bench an d b ar fo r th eir com ments.
Aft er the new rules are prescribed by the Supreme Court—the 

word “prescribed” is taken from the applicable statutes—they are 

reported to Congress. Unless ;Congress takes some action within 90 

days, the new rules take effect on the specified date.

Over many years, Congress did not change any rules prescribed by 

the Supreme Court. I believe tha t Congress has recognized the immense amount of work tha t has gone into the preparation of each 

rule, and has known that all judges, lawyers and groups of lawyers 

have had an opportunity to make their views known, and tha t their 

views have been considered. Of course, some judges, some lawyers, 

and some groups will object to any proposed rule, and will write 

very persuasive letters in support of their views. But you may rest 

assured if they sent their views to the committees studying the proposed rule, those views were considered, along with views expressed 

by other judges, lawyers and groups, and were not rejected unless 

the committees and the Supreme Court believed that the rule as finally 

proposed, which was usually recommended by the great majority 

of judges and lawyers, was the best rule which could be devised for 

solving the problem involved, which often has many facets. Those 

lawyers, judges and groups who approve the proposed rules do not 

ordin arily write letters to our committee or to your committee; they 

count on us to present their views.

I recognize, of course, that two recent sets of rules have doalt with 

problems in which there is great public interest—the proposed rules 

with respect to privilege and some of the other evidence rules, and 

the criminal rule dealing with plea agreements, or plea bargaining, 

whichever term you prefer.

We have studied carefully the letters you have received with respect 

to the new criminal rules which you are considering today. They are 

very sincere letters. The points raised by those who object to one or 

more of the ndes will be discussed by members of the advisory committee. who will explain why the suggestions contained in those letters 

were not adopted by the advisory committee or by the standing committee, in proposing the rules which were approved bv the Judicial 

Conference and prescribed by the Supreme Court. I will only ask you 

to remember tha t many, many other judges and lawyers approve the 

rules as prescribed by the Supreme Court, including those who have 

written you to tha t effect and those who count on our committees to 

support the proposed rules.

I want to discuss briefly one final subject. Some rules which will be 

proposed in the future will probably deal with subjects in which the 

public, as well as judges and lawyers have an interest. I am authorized 

to say that the Chief Justice, as well as members of the standing committee, believe it would be wise to have a closer relationship with 

members of the appropriate congressional committees while proposed 

rules are being discussed bv the several advisory committees and by 

the standing committee of the Judicial Conference. Pe rhaps a member 

of your committee and a member of the appropria te Senate Committee, or someone from your respective staffs, might serve as members of 

the standing committee and of each of the advisory committees, or 

might attend meetings of those committees and comment on each proposal, as a representative of the Department of Justice sometimes is 

asked to do. I hope your chairman or some one or more of your mem-
bers designated by him will be willing to discuss this pro posal with 

the Ch ief Ju stice inform ally and wi th me at some mutua lly convenien t time. I ha rd ly need say th at the Ch ief Ju sti ce, in his opin ions over 

a period of 19 yea rs, has dem onstrated adherence to the con cept of 

separat ion of pow ers and as Chief Ju sti ce he has constan tly urged 

coo peratio n between the Congress and th e judic ial b ran ch.

Mr. H ungate. Th an k you, Ju dg e Thomse n. We ap preciat e the 

grea t am ount of work th at has gone into th is and the fine qu ali ty of 

th at work. We w ill certa inly call to t he a tte ntion of Ch air ma n Rod ino 

your suggestion s c onc erning the possib ility of a closer liaison between 

the Congress an d the Ju dicial Conference.

If I m igh t i nterject a t t his p oin t, I suppose t hat w hat h appens w ith 

the rules of evidence will influence t he natur e of the liaiso n. If nothin g 

hap pen s, and nothing ha ppens by the first of ne xt Au gust, we ma y have 

learne d a lesson—Congres s is inde ed no t cap able to deal wi th these 

problems. I should po int out however, th at un til rec ent ly the Con ­

gress has, more or less by defau lt, let slide a responsi bility th at does 

belong to it.

I f it is a greeab le with the members of the c omm ittee, you gentlem en 

may proceed with your pr epare d statem ent s a nd th en ta ke qu estions a t 

the end.

Ju dg e L umbard. Mr. Chairma n, my nam e is J . Edw ard Lu mb ard . I 

am a senior ju dge f or the U.S. Court of Appeals for the Second Ci rcu it, 

and have been chair ma n of the Ad vis ory Com mittee on the Crimina l 

Rules since May 19 71.1 served as U.S . atto rney fo r the sou thern distr ict 

of New Yo rk un til I w as appointed a cir cu it jud ge in Ju ly 1955. And 

I was chief j udge of th e second circuit from 1959 to 1971.

In orde r to acquain t the comm ittee with the pro cedures of the A dviso ry Com mittee, I have prepare d and submi tte d a 19-page s tatem ent 

and app endices which I understand, Mr. Ch air ma n, you will make a 

pa rt of the record, and, the refore , I sha ll not attempt to rea d th is in 

any detail.

Mr. H ungate. W ith ou t objection, th is will be mad e a part of the 

reco rd.

Ju dg e L umbard. I shall simply emphasize a few po ints in connection 

with the pro cedures of the committee.

In addit ion to th at , as you know, the reasons which prom pte d the 

ado ption b y the com mittee of the pro posal s now befo re you hav e been 

set out extensivel y, in the notes of the com mittee which the Chief 

Ju sti ce ha s sen t to the Congress a lon g with th e proposed amendmen ts.

An d I have with me, as you know, Ci rcuit Ju dg e Webste r of the 

eig hth circ uit , and P ro f. Fr an k Re mington , who has been the repo rte r 

of th e com mittee, and prior to becoming repo rte r, he was a mem ber of 

it since 1960. And I th ink between us we will be p rep are d to ans wer any 

questions th at you may wish to dir ect to us rega rding the merits of 

tnese p ar tic ul ar proposa ls.

I th in k I sho uld point out th at o ur c omm ittee at all times has been 

gla d to receive the suggestion s and the help of anyone who was pr epa red to offer it. On one recent occasion our mee ting w as attended bv 

the counsel fo r Congres sma n Eilb erg who at th at time was intere sted 

in a discussio n rega rd ing the gr an d ju ry syste m which the committee 

is now actively stu dying . And on an othe r occasion we ha d with us 

counsel fo r one of the Senate committees, Ro bert Bla key , now pro fes-
sor a t Cornell Law School, in connection w ith th e pro posal s r eg ar ding 

a r evision of the crim ina l code wh ich have been befo re th e C ong ress the 

las t few yea rs.

I sho uld like to em phasize, with resp ect p ar tic ul ar ly t o three of the 

matters i n whi ch you are pr incipa lly int ere ste d—na mely, the p leas of 

gu ilty, th e discovery proposals, and the use of the prese ntence repo rt— 

th at we were not w rit ing on a clean s late, th at these m atters ha ve been 

the subjec t o f much discussion a nd s tud y fo r m any years, p artic ul arly 

in recent times. One such stu dy was th e Am erican B ar Asso ciation 

stu dy on cri mi nal justice and the pro posal of sta nd ar ds which commenced in 1964, an d of which I was ch air man fr om 1964 until 1968.

Th e pro posals which are b efore you w ith r espect to tho se three sub ­

jects derive v ery largely from th e p rop osa ls m ade by th e Ame rican Bar 

Ass ociatio n Com mittee on Cr im inal Justice. An d as you know, they 

hav e the very wide s up po rt of the bar, and in fac t, have been used in 

ma ny of the courts of the country , an d have been ad op ted in whole 

or in p ar t in some of the States.

An d so we h ad those studies as a firm s up po rt fo r many of the pr oposals w hich ar e before you.

Second, I wan t to empha size th at which I th in k app eal's in detail 

in my p repa red statem ent , an d that is the fu ll an d th e wide o pp or tunity 

whi ch is presented to th e jud ges and t o the mem bers of th e b ar and all 

inter ested pa rti es to become acquain ted with and to comm ent on 

any pro posal s whi ch the com mittee makes. These pro posals, as you 

know, w ere lar gely derived fro m prelim inary dr af ts, one of which was 

cir culat ed in Ja nuar y 1970, an d the othe r in Apr il of 1971. T hey were 

sen t to some 5,000 persons. In additio n, the y were pub lished by the 

West Pu blish ing Co., in its adv anc e sheets fo r Fed. 2nd, Fed. Su pplement, and Fed. Rules Decisions . And so we ha d abo ut as wid e a 

cir culat ion of the pro posals as was possible.

Mr. H ungate. I f I m ay in te rr upt at th is poin t, I know th at y ou are 

accurate. W ith the rules of evidence, we ha d a numb er of c om pla ints 

about ina dequate c ircula tion of the dr af ts. Th at has n ot been the case 

wi th th e proposed amend ments to the F ed eral Rules o f Cr im ina l Pro ­

cedure. I can not recall anyone who has com plained about lack of 

notice of wh at w as go ing on.

Ju dg e L umbard. Then, as is ap pa re nt fro m com parison of the 

original pro posals and the pro posal s which were l aid before th e Congress by the Ch ief J us tic e, there were v ery num erous chang es ma de in 

alm ost all the pro posals as th e resu lt of criticism s and sug gestions 

and fu rther stu dy by the Ad vis ory Com mittee and by th e St an ding 

Comm ittee before they were sen t to th e Congress.

Xow, I th in k I should also po int ou t th at since 1960 th e pro ced ure 

has involve d two ad dit ion al che ckp oin ts which ha d not existed before 

th at time. Th e first was the cre ation of the St an ding Comm ittee, of 

which Ju dg e Thomsen is now th e chairma n. Eve ry th in g th at the 

Ad vis ory Comm ittee prop oses must first go to the St an di ng C om mittee. An d th at St an ding Comm ittee on occasion ha s sent bac k to. th e 

Ad vis ory C ommittee m atter s w hich it thou gh t req uir ed furt her study.

An d the second a dditional che ckp oint ha s been the J ud ic ia l Con ference of the Un ite d States. Th e pro posal s go from the Ad vis ory Committee to the Ju di ci al Conferenc e of t he U nited States which, as you
8

know, consists of 25 of the judges representing all the circuits and 

presided over by the Chief Justice.

And the fourth matter to which I would like to call the attention 

of the committee is, of course, that we are required by statute to conduct a continuous study of the rules. And we are conducting further 

studies in addition to those which are now before the Congress. These 

were set out in considerable detail in a proposal circulated in April 

1973 and are undergoing further study.

The three matters of particular interest in these proposals have to 

do with some form of sentence review by a panel of district court 

judges, and new’ rules for State prisoner habeas corpus cases, and new’ 

rides for 2255 proceedings, which are the post-conviction proceedings 

in the Federal court. And those are now being studied by the Advisory Committee and the Standing Committee before there will be a 

further circulation and before there is final action.

And I have mentioned tha t simply to emphasize for the benefit of 

the committee the manner in which the committee seeks to carry out 

its studies.

And that is all that T want to say by way of preliminary statement, 

Mr. Chairman. We are prepared to answer any questions which you 

may have.

| Judge Lumbard’s statement and attachments follow:]

Statement of J. Edward Lumbard, Senior Circuit J udge of the United States

Court of Appeals for the Second Circuit

Mr. Ch air ma n: I am J. Edw ard Lumbard, a senior judge of the United States 

Court of Appeals for the Second Circuit. I am appearing before your subcommittee as Chairman of the Advisory Committee on Criminal Rules of the Jud icia l 

Conference of the United State s. I served as United States Attorney for the 

Southern District of New York from April 1953 to July 1955, when I was appointed a circuit judge for the Second Circuit. I served as Chief Judge of the 

Second Circuit from 1959 to 1971.

As background, let me first outline briefly the development of the rule-making 

authority and the rule-making process with respect to procedure in criminal 

cases.

In 1933 Congress authorized the Supreme Court to prescribe general rules of 

criminal procedure with respect to post-verdict proceedings. Act of F ebruary 24. 

1933, ch. 119. 47 Sta t. 904, a s amended, 18 U.S.C. § 3772 (1970). These rules were 

not required to be subm itted to Congress for approval, but became effective on 

the date ordered by the Court.

The first such rules were promulgated on May 7, 1934, to become effective on 

September 1, 1934. 292 U.S. 659. They concerned ma tters such as sentencing, 

post-verdict motions, appeals, bail pending appeal, and directions for the preparation of a record for appeal.

In 1940 the Congress directed the Supreme Court to recommend to the Attorney 

General of the United States rules dealing with procedures in crim inal cases 

prio r to and including a plea of guilty, a jury verdict or a finding of guilt by a 

court. The Supreme Court would then request the Attorney General to transmit, 

those rules to Congress. The rules would not tak e effect unless and until the 

Attorney General placed them before Congress at the beginning of a regular 

session, and then not until the close of that session, abse nt Congressional action 

with respect to those rules. Act of June 29, 1940, ch. 445, 54 Stat. 688, as amended, 

18 U.S.C. §3771 (1970). This procedure was changed in 1949 when Congress 

authorized the Supreme Court to transm it new rules and rule changes directly 

to Congress, rather tha n through the Attorney General. Act of May 24, 1949. 

ch. 139, § 59. 63 Sta t. 98. In 1950 the statute was fu rth er amended to provide 

that proposed rules and rule changes be reported to Congress not later than 

May 1st each yea r and become effective 90 days after being so reported, absent 

Congressional action on the rules. Act of May 10, 1950, ch. 174, § 1, 64 Sta t. 158.

The original rules of criminal procedure adopted pursu ant to the 1940 statute 

and dealing with procedure prio r to and including verdicts, guilty pleas, or find-
9

ings as to guilt by courts were referred to the Attorney General by Order of tlie 

Supreme Court on December 26, 1944. 323 U.S. 821; 327 U.S. 821 (1946). The 

rules were then transm itte d to Congress by the Attorney General on Jan uary 3, 

1945, see 327 U.S. 824 (1946), and became effective on March 21, 1946. Also 

becoming effective on that date were additional crim inal rules dealing with postverdict procedure. These were promulgated by the C ourt itself on February 8th 

of that year, and superseded those adopted by the Court in 1934. 327 U.S. 825. 

Both sets of rules were inte grated into a consecutively numbered code.

Despite the difference in the manner in which post-verdict rules and those 

dealing with all prio r proceedings became effective, all the rules adopted by the 

Supreme Court in 1944 and 1946 were the res ult of a long and careful process 

of study. In promulgating those early rules, the Supreme Court relied heavily 

on the work of the Advisory Committee on Rules in Criminal Cases, a committee 

of eminent practitioners and legal scholars which it appointed in 1941.1

 312 

U.S. 717-18. Th at committee was initially charged with proposing rules for procedure prior to and inclu ding a verdict, a plea of guilty, or a finding of guilt, 

id., but shortly after its formation the Supreme Court directed it to make recommendations for post-verdict rule changes as well. 314 U.S. 719.

The Advisory Committee on Rules in Criminal Cases met and dra fted the 

■4 proposed rules over a period of four years, during which time ten drafts were

prepared, two of which were distributed to the Bench and Bar of the country. The 

evolution of the original rules over the course of the committee’s study is described in L. Orfield, Criminal Procedure TJnder the Federal Rules (1966), as 

part of the autho r’s analysis of each of the present rules.

The Supreme Court gave the rules recommended by the committee close at ­

tention. While it approved the bulk of the proposed rules, it refused to promulgate three of the recommended rules and made sub stantial changes in five others. 

See 1 C. Wright, Federal Practice and Procedure (Criminal) § 2 (1969). The 

rules the Court did not adopt included a rule authorizing pre-trial conferences, 

a rule requiring the defe ndant to give notice if he intended to claim an alibi, 

and a rule prohibitin g ex parte communications by one counsel to the judge. It 

furth er rejected a proposal which would have allowed the government, on motion, to take the deposition of a witness in certain circumstances, although a 

defendant was allowed to tak e a deposition to prevent a failure of justice. See 

U. Orfield, Criminal Procedure Under the Federal Rules §§15.1-4 (1966). The 

Court furth er provided that in cases where a jury had been waived, findings of 

fac t by a court in support of its verdict were mandato ry, rather than discretionary as the committee had proposed. See Rule 23(c). The Court also rejected a 

proposal which would have authorized disclosure of a presentence rejiort to the 

attorneys for the partie s and to others with a legitimate interest. Finally, it. 

estab lished a time limit of two years on the making of motions for new tria ls 

based on newly discovered evidence (the proposed rule had had no time limit, 

while the prior Criminal Appeals Rules had allowed only sixty day s), and 

amended one rule (now Rule 48) to require leave of the court for dismissal of a 

case by the government.

Through 1956 only a few amendments were made to the Criminal Rules. Most 

of the amendments were minor in nature and intended to conform the rules to 

changes in either the Criminal Code or the Rules of the Supreme Court. The

* single imp ortant substan tive change was made to Rule 46(a) (2) in 1956. This 

authorized courts to gra nt bail to defendan ts during appeals of criminal convictions unless th e appeal was frivolous or sorely for purpose of delay. Formerly, 

bail bad been authorized only when the appeal was found to raise a substan tial 

question, and thus bail had been less available to the criminal appellan t than it.

* had been to the criminal defendant. See 350 U.S. 1017 (Apr. 9, 1956, effective 

July 8, 1956). F or other minor changes in this period see 346 U.S. 941 (Apr. 12. 

1954, effective July 1, 1954) ; 335 U.S. 949 (Dec. 27, 1918, effective Oct 20, 1949) ; 

id. a t 917 (Dec. 27,1948, effective Ja n 1,1949).

During these years there was no continuing study or reevaluation of the criminal rules and no substan tive proposals for reform. In 1956, perhaps triggered 

by the Supreme Cou rt’s orde r discharging the stan ding committee which it bad 

appointed in 1942 to make recommendations concerning rules of civil procedure, 

352 U.S. 803, the legal community expressed the view that, there ought to be 

standing committees actively engaging in a continuing study of the rules of procedure in th e federal cou rts a nd making necessary recommendations.

1

 The membership of the Advisory Committee appointed by Order of the Supreme Court 

on February 3,1941, Is presented In Appendix 1.
In 1956 the Jud icia l Conference voted to recommend to the Supreme Court 

that the Court “revive, reconstitute and consolidate its committees on Civil and 

Criminal Rules.” Annual Report of the Proceedings of the Judicial Conference

of the United States 35 (1956). The Jud icial Conference, created by statute , consists of twenty-five fede ral judges: the Chief Jus tice of the Supreme Court, the 

chie f judge of each judic ial circuit, the chief judge of the Court of Claims, 

tlie chief judge of the Court of Customs and Pa ten t Appeals, and a dis trict judge 

chosen from each judicial circuit. 28 U.S.C. § 331.

In 1957 the Judicial Conference approved a dr af t of a bill, which it recommended to Congress, providing th at “the Judicial Conference of the United State s, 

acting with the approval of the Supreme Court, shall have the rule-making power 

now vested solely in the Supreme Court” with respe ct to the general rules of 

practice and procedure prescribed for use in the courts of the United State s. 

Annual Report of the Proceedings of the Judicial Conference of the United Sta tes

7-8 (1957). The Conference referre d the problem of devising procedures for the 

implementation of such a proposal, should it he adopted, to its Committees on 

Court Adm inistration and Revision of the Laws.

In 1958 Congress amended what is now 28 U.S.C. §331, as recommended by 

the Judicial Conference, to provide for ongoing study of the rules of prac tice 

and procedure by the Conference and to authorize the Conference to submit 

proposed rule changes to the Supreme Court. Act of Ju ly 11, 1958, Pub. L. 85-513, 

72 Stat. 356.

To carry out the duties imposed by thi s s tatute, the Judicial Conference estab ­

lished the Stan ding Committee on Rules of Pra ctice and Procedure^ and authorized the Chief Justice of the Supreme C ourt to appoint its members from throughout the legal community. Thus its members may consist of federal and sta te 

judges, private practitio ners, government officials and other legal scholars. From 

its inception in 1960 until October 1. 1973, the Stan ding Committee was chaired 

by Judge Albert B. Maris of the Court of Appeals for the Third Circuit. Ujwm 

the retirement of Judge Maris, Judge Roszel C. Thomsen of the Distric t Court for 

the Dis trict of Maryland was appointed chairman.2

To furth er ass ist in the process of rule-making, the Conference authorized 

the Chief Jus tice to appoint five Advisory Committees, also from throughout the 

legal community, to make an ongoing study of t he operation of the various rules 

and to report to the Standing Committee on Rule s of Practice and Procedure. 

The Advisory Committee on Criminal Rules, of which I am now Chairm an, was 

one of these committees.

The first Advisory Committee on Criminal Rules was established by Chief 

Justice E arl Warren in 1960. The committee was cha ired by Circ uit J udge John C. 

Pickett of the Tenth Circuit, and was composed of two federal dis trict judges, 

four priv ate practit ioners of long experience in the field of crim inal law, three 

law professors, and the then Deputy Attorney General of the United States.3

The first series of amendments to the crim inal rules form ulate d under the 

procedure adopted pursu ant to 28 U.S.C. § 331 were approved by the Supreme 

Court on Feb rua ry 28, 1966, and became effective on July 1st of th at year. 383 

U.S. 1087 (Justic es Black and Douglas dissenting). They were largely the 

product of extensive deliberations by the Advisory Committee between 1960 and 

1965, and later by the Standing Committee and the Judicial Conference. As p art 

of the process of making recommendations, the Advisory Committee circulate d 

preliminary drafts of the proposed amendments in both 1962 and 1964 to the 

legal community. As a result of such publication and the comments received, 

the committee revised a number of its proposals and formulated amendments to 

still other rules. See Annual Report of the Proceedings of the Judicial Conference of the United Sta tes 23 (1964).

When the revised proposals were referre d to t he Standing Committee on Rules 

of Practice and Procedure, most were adopted. Th at committee, however, decided 

not to approve several changes, including one amendment, sub stan tially sim ilar 

to proposed Rule 12.2 now before Congress, which would have requ ired a defendant to give notice of his inte nt to raise the defense of insanity. Another 

amendment which the Standing Committee rejected would have perm itted the 

government the right to take depositions of witnesses for the same reasons as 

defendants. See Annual Report of the. Proceedings of the Judicial Conference

of the United States 53 (1965). The Jud icial Conference approved the changes 

recommended by the Standing Committee, as did the Supreme Court.

The current members of the committee are listed In Appendix 2. 

s

 The original membership of this committee Is listed In Appendix 3.
11

The proposals finally adopte d included two new rules dealing with pre trial 

conferences (R ule 17.1 ) and judi cial notice of foreign law (Ru le 26.1). They also 

auth orized bro ade r discovery rights for the defendan t, together with limite d 

rights of discovery in the government in cer tain cases as a condition of the 

awa rd of discovery to the defen dant (Ru le 16 ). In addition, indige nt defendan ts 

were permitted to secure subpoenas for witne sses at government expenses would 

necessary, withou t disclosing to the govern ment wh at those witne sses would 

say. Proce dures were adopte d to help assure th at a defendan t would not inad ­

vert ently lose his oppo rtunity to appeal. And provisions dealin g with venue in 

criminal cases were also subs tanti ally broadened. The 1966 amendments affected 

31 of the rules in all, altho ugh many of the changes were not of such a substan tive natu re.

The Advisory Committee, with some changes in its membership, continu ed 

its study of the crim inal rules as intend ed by the Jud icia l Conference. Fu rth er 

« amendments to the rules were made by Order of the Supreme Cou rt date d

December 4, 11X17. 389 U.S. 1125. These became effective Jul y 1, 1968, together 

with the new Federal Rules of Appellate Proced ure. Id. These changes in Criminal Rules were largely to accommodate adoption of the sep arate Rules of Appellate Procedure. Additional mino r changes were adopted in 1971. See Orde r of 

the Supreme Court, 401 U.S. 1025 (Ma r. 1, 1971, effective July 1, 19 71 ).

DEVELOPMENT OF TH E PRE SEN T PROPOSALS TO AME ND TH E CRIMINA L RULES

In Janu ary 1970 and April 1971 the Advisory Committee circulated 5.000 copies 

of two drafts of fu rth er proposed amend ments to the criminal rules. The dr afts 

were dis trib ute d on as wide a basis as the committ ee had been able to devise, 

includ ing Bar Association s, law schools, and, of course, all federal judges. These 

drafts were also prin ted by the West Pub lishing Company at 48 F.R.D. 547 and 

52 F.R.D. 409.

In pa rt these drafts contained many changes to conform the exis ting rules to 

sta tutory changes. Such minor amendments were late r sent to the Standing Committee, along with oth er amendm ents to the rules, but were then forw arde d to 

the Jud icia l Conference ahead of more s ubs tan tive proposals. They became effective in 1972 af te r Supreme Court approval and transm ittal to Congress. See 406 

U.S. 979 (Apr. 24, 1972, effective Oct. 1, 197 2). See also Annu al Report of the

Proceedings of the Jud icial Conference of the United States 22 (Apr. 1972). The 

one imp ortant change adopte d at thi s time involved Rule 5 0( b ) requiri ng each 

dis tric t cou rt to pre par e a plan for the prom pt disposition of criminal cases. 

This pa rticu lar proposal had been sep arat ely published to the legal community 

in March 1971, and handled on an e xpedi ted basis.

On May 10, 1971, Chief Jus tice Bur ger sub stan tially reco nsti tute d the Advisory Committee on Criminal Rules which was to contin ue the work on the 

proposals published in 1970 and 1971. It was a t th at time th at I was named 

Chairm an.

Associated with ine on this committe e today are three circ uit judges, Wade I I. 

McCree, Jr., of the Sixt h Circuit, who was previously a dis trict cou rt judge. 

Roger Robb of the Di strict of Columbia Circuit, and William II. Webster, now 

of the Eigh th Circuit, who previously has served as both a dis trict court judge 

« and a United Sta tes At tor ne y; four dis tri ct cou rt judges, Wa lter E. Hoffman

of the Eas tern Di str ict of Virginia and a member of the original committee; 

Chief Judg e Russell E. Smith of the Di str ict of Montana, Gerh ard A. Gesell of 

the Di strict of Columbia, and Leland C. Nielsen of the Southern Di str ict of 

California and a form er judge of the Californ ia Sta te Court system ; R. Ainmi 

Cutter, reti red Associate Jus tice of the Suprem e Jud icia l Court of Massachusetts; Joseph Weintra ub, former Chief Jus tice of the Supreme Court of New 

Jers ey ; Henr y E. Peter sen, Ass istan t Attorney General in charge of the Criminal 

Division of the Dep artm ent of Jus tice ; Jam es Vorenberg, a profe ssor of law 

at Ha rva rd and a form er head of the Office of Criminal Jus tice of the ,Depa rtment of Ju st ic e; Che ster Bedell, a pri vat e pra ctit ion er of Jackson ville, Florida, 

who was formely associate d with me in the American Ba r Association proje ct 

in Sta ndard s for Criminal Justice ; Robert S. Er dalil , for many year s head of the 

Appellate Section of th e Crimina l Division of the Dep artm ent of Jus tice ; Terence F. MacCarthy, head of the Fed eral Defender Program, Inc. for the Nort hern Dis tric t of Illin ois; and William B. West, II I, now a n atto rne y from Dallas, 

Texas, and form erly a United Sta tes Attorney. Professo r Fra nk J. Remington, 

a profe ssor of law at the University of Wisconsin, a member of the orig inal com-
12

mittee, lias been Rep orte r for the committee, and associated with him is Profe ssor Wayne L aFa ve of the Un iversity of Illinois.

The recons tituted Advisory Committee promptly addr essed its elf to the 

proposed dr afts circulat ed in 1970 and 1971 and to the comments which the 

committee was receiving from the legal community. The comments which were 

received are in the files of William E. Foley, the Secretary of the Stand ing 

Committee on Rules of Pra ctic e and Proced ure, and are availabl e for exa min ation. The names of those who s ubmitted comments are contained in Apiiendix 4 

to this State ment .

The proposed changes were before the legal commu nity for over a year.

Comments, when received, were tran sm itte d to the members of the Advisory 

Committee and to its repo rters . The la tte r made a deta iled analysi s of the comments and fu rth er their own commentary for the benefit of the Advisory 

Committee.

The committe e met three times in two-day sessions to reconsider these *

proposed rule changes. Meetings were held on September 24-25, 1971, Jan uary 

14-15, 1972, and September 6-7, 1972.

The comments which the committee received, as well as the fresh viewpoint 

of the new committ ee members not involved in the pre par atio n of the 1970 and 

1971 draft s resu lted in a number of sub stantial changes in the proposed rules. x

For example, the committ ee elimin ated an earlier atte mp t to expan d on the 

meaning of probab le cause in Rule 4 as a res ult of the unfa vora ble response it 

had received. Minutes of September 24-25, 1971, at 3. With regard to proposed 

Rule 32.2, dealing with presen tence reports, the Committee decided th at the recommendations of parole officers for the sentencing of defe ndan ts should not be 

disclosed to defe ndants or the ir counsel and amende d the proposed rule to th at 

effect. It fu rth er adopted language suggested by the Dep artm ent of Jus tice to 

restric t disclosure of a presen tence report, or pa rts thereo f, containi ng opinions 

which, i f disclosed, might d isrupt a reh abi lita tive progra m, or when disclo sure of 

the repo rt might compromise sources of info rma tion obtained upon a promise of 

confidentiality or might result in harm, physical or otherwise, to the defe ndant 

or others. Id. at 13-14 . The Advisory Committee disapp roved a proposed amendment to Rule 48 which would have gra nted the cou rt aut hority to dismiss a case 

where it would “serve the ends of justice and the effective adm inistra tion of the 

cou rt’s business.” Id. a t 16-17.

These changes ar e cited merely as examp les of the revisions which resulted 

from the Advisory Committee’s reconside ration of the proposed amendm ents.

It is also imp ortant to emphasize th at the criticisms recen tly received by the 

House subcomm ittee and direc ted at certain of the proposed amendmen ts were 

in substance before the Advisory Committe e and were carefully considered during its delibe rations.

For example, at the meeting on Septemb er 24, 1971, an attorn ey of the Departme nt of Jus tice argu ed th at the ma gis trate’s power to issue a summons 

rat he r tha n a w ar ra nt should not be expanded as was contem plated by Rule 4.

However, the judg es on the committee were unanimous th at a magis trate should 

have the autho rity to issue a summons in an app rop riat e case despite a prosecutor’s m ere asse rtion th at a wa rra nt should issue. Minutes of Septemb er 24-25 .

1971, at 5. See also Franke l. Bench Warr ants Upon the Prosecuto r's Demand: .4 View From the Bench, 71 Colum. L. Rev. 403 (1 97 1) . *

Similarly, at the meetings on Janu ary 14-15, 1972, the question of plea ba rgainin g was extensively considered. Minutes of Janu ary 14-15, 1972, a t 20-24.

The committee had received a wide range of comments on th at rule, both criti cal

and favorable. These comments were carefully considered. Among the commit- .

tee members were a number of experienced, active and form er dis trict court

judges who contribu ted extensive ly to the shap ing of the present proposed

rule.

Afte r the second meeting of the Advisory Committee to revise these proj>osals, I appointed an Edi torial Committee with inst ruc tion s to meet to put 

the proposals decided upon into final form for submission to the Stand ing 

Committee. It was at this point th at the Stan ding Committee passed on to the 

Jud icia l Conference the minor changes appro ved subsequently by the Conference and the Supreme Court. 406 U.S. 979 (1 97 2) . However, the Stan ding Committe e return ed several of the subs tant ive rule chang es to the Advisory Committe e for recon sidera tion, while contin uing to study the remain der. Advisory 

Committee Minutes of September 6-7, 1972, at 5. Among the rule s reconsidered
at the Advisory Committee’s m eeting in September 1972 were those dealing witli 

plea bargaining and nontestimonial identification. The Advisory Committee, 

after making some changes to cer tain of the rules, resubmitted them to the 

Stan ding Committee.

The Stan ding Committee on Rules of Practic e and Procedure considered the 

proposed amendments and finally approved all but one for transmission to the 

Jud icial Conference. That rule, Proposed Rule 41.1, dealt with nontestimonial 

identification both before and after arr est . The Stan ding Committee felt the 

proposed rule required still furth er study. Annual Report of the Proceedings of

the Judicial Conference of the United Sta tes 49-47 (Oct. 26-27, 1972).

Upon that committee’s approval, the proposals were circulated to members of the Ju dicial Conference at le ast two weeks prior to t heir meeting in October 1972. 

The Conference approved the proposals and transm itted them to the Supreme 

Court. Upon th at Court’s approval, 42 U.S.L.W. 4551 (U.S., Apr. 22, 1974) 

(Douglas, J., dissenting), the proposed amendments were transm itted to Congress.

I should note that the Advisory Committee’s studies have also resulted in a 

published preliminary dr af t of still add itional amendments to the Criminal 

Rules, as well as proposed rules governing habeas corpus and section 2255 proceedings. One prim ary area of concern here is an amendment of Rule 35 of the 

Rules of Criminal Procedure to esta blish a procedure whereby a panel of distri ct court judg es would review sentences in certain criminal cases.

Furthe rmo re, the Advisory Committee, in line with its duties, is in constant 

receipt of suggestions as to ma tters for study relatin g to criminal procedure. 

Chief among the subjects of importance which we have begun to study but regarding which we have not yet formed any proposals, is the grand jury system. 

Appendix 1

The members of the Advisory Committee on Rules in Criminal Cases, appointed 

in 1941, were:

Ar thu r T. Vanderbilt, Newark, N.J., Chairman.

Jam es J. Robinson, Professor of Law, Indiana Univ. Law School, Reporter.

• Alexander Holtzoff, Washington, D.C., Secretary.

Newman F. Baker, Professor of Law, Northwestern Univ. Law School. 

George Jam<*> Burke, Ann Arbor, Mich.

John J. Burns, Boston, Mass.

Fred erick E. Crane, New York, N.Y.

Gordon Dean, Washington, D.C.

George II. Dession, Professor of Law, Yale Law School.

Sheldon Glueck, Professor of Law, Ha rva rd Law School.

George Z. Medalie, New York, N.Y.

Lester B. Orfield, Professor of Law, Univ. of Nebraska Law School. 

Murray Seasongood, Cincinnati, Ohio.

J. O. Seth, San ta Fe, New Mexico.

John B. Waite, Professor of Law, Univ. of Michigan Law School.

Herbert Wechsler, P rofessor of Law, Columbia Law School.

G. Aaron Youngquist, Minneapolis, Minn.

George F. Ixmgsdorf, Oakland, Calif., was appointed by orde r of May 26. 

1941, 313 1 ,S. 602. to fill the place of the deceased Newman F. Baker, 

Hugh D. McLellan of Boston, Mass, was appointed in 1917.

Appendix 2

Current members of the Stan ding Committee on Rules of Practic e and Procedure a re as follows:

Jndgre Roszel C. Thomson of th e D istr ict of Maryland, Chairman.

Judg e Carl McGowan of the Distr ict of Columbia Circuit.

Judge Charles W. Joiner of the Ea stern Dis trict of Michigan.

Chief Judge Frank W. Wilson of the Eastern District of Tennessee. 

Richard E. Kyle.

Jam es W. Moore.

Berna rd G. Segal.

Charles A. Wright.
14

App endix 3

The members of th e Advisory Committee on Criminal Rules appointed by Chief

Justice Warren in 1960 were as follows:

John John C. Pickett of the Court of Appeals of the Tenth Circuit, Chairman.

Judge Wa lter E. Hoffman of the Eastern District of Virginia.

Judg e William F. Smith of the District of New Jersey.

Joseph A. Ball, Long Beach, California.

George R. Blue, New Orleans, Louisiana.

Abe Forta s, Washington, D.C.

Thomas D. McBride, Philadelphia, Pennsylvania.

Professor Sheldon Glueck, Harvard Law School.

Professor Maynard Pirsig, University of Minnesota.

Professor F rank J. Remington, University of Wisconsin Law’ School.

Deputy Attorney General of the United States Lawrence E. Walsh.

The Reporter for the committee wras Edw ard L. Ba rre tt, Jr., Professor and *

lat er Dean of the School of Law’ of the University of Califo rnia at Davis.

In 1969 Jud ge Pickett retired from the committee and was succeeded by Judge 

Alfonso J. Zirpoli of the Northern D istrict of California.

V Appe nd ix 4

Comments Received on the Preliminary Draft of Proposed Amendments to the 

Federal Rules of Criminal Proced ure D ated January 1970 

RULE 4. ARREST WARRANT OR SUMM ON S UPON COM PLA INT

Honorable Bailey F. Rankin, magistrate, Northern Distric t of Texas.

John P. Burke, attorney, Distric t of Columbia.

Association of th e Ba r of the City of New York.

ABA Special Committee on Federal Rules of Procedure.

Departm ent of Justic e.

RULE 0. WARR ANT OR SUMM ON S UPON IND ICT ME NT OR INFORMA TION. (A) ISS UA NC E

Honorable Marvin E. Frankel, judge, Southern District of New York.

Honorable Bailey F. Rankin, magistrate, Northern Distric t of Texas.

E. E. Greenson. Clerk, Distric t of New Mexico.

Association of the Bar of the City of New York.

ABA Special Committee on Federal Rules of Procedure.

RULE 12 . PLEADINGS AND MOTIONS BEFORE TR IA L; DEF ENS ES AND OBJECT IONS

Honorable Jac k B. Weinstein, judge, Eastern District of New York.

Association of the Bar of the City of New York.

ABA Special Committee on Fed eral Rules of Procedure.

Departm ent of Justice.

RUL E lf l. DISCOVERY AND INS PECTION

Honorable Ja ck B. Weinstein, judge, Easte rn District of New York. *

Mitch Bernstein, Y’ale Law School.

Ronald E. Bensten, Yale Law School.

Jerry E. Nathan, Yale Law School.

Robert B. Mann. Yale Law School.

Alan Meisel, Yale Law School. *

David Parker. Yale Law School.

David S. Golub, Yale Law School.

Martin Frederic Evans, Yale Law School 

Hillary Redham . Yale Law School.

W. Lawrence Hollar, Yale Law School.

Paul R. Rice, Yale Law School.

Ernest J. Isenstedt, Yale Law School.

Priscilla S. Burnham, Yale Law School.

Michael Fargione, Yale Law School.

Steven S. Honigman, Yale Law School.

M. Martha Il artle , Yale Law School.

Jorge C. Aguiniga, Yale Law School.
15

Kenneth M. Glazier, Yale Law School.

Jeffrey L. Rogers, Yale Law School.

William J. Clinton, Yale Law School.

Joseph C. Williams, I II, Yale Law School.

Barbara Schlain, Yale Law School.

Bruce A. Morrison, Yale Law School.

Anthony M. Paul, Yale Law School.

James N. Nowacki, Yale Law School.

Judith Harris, Yale Law School.

Kristine Olson Rogers, Yale Law School.

Michael Devorkin, Yale Law School.

Edg ar L. Taplin, Y’ale Law School.

Robert Gellman, Yale Law School.

Roger W. Fonseca, Yale Law School. 

e

I)avid M. Cohen, Yale Law School.

Kathy Doggett, Yale Law School.

S. Mark Tuller, Yale Law School.

Thomas R. Bennett, Yale Law School.

Jam es C. Rawls, Yale Law School, 

w George E. Henderson, Yale Law School.

Philip C. Gans, Yale Law School.

John J. Cleary, attorney, Chicago, Illinois.

Robert R. Kaplan, Articles Editor, William & Mary Law Review.

Stephen K. Lester, assista nt U.S. Attorney, D istrict of Kansas.

Honorable Edward Dumbauld, judge, Western Distric t of Pennsylvania. 

Steven M. Kipperman, attorney, San Francisco, Calif.

William G. Hollingsworth, attorney, New Haven, Conn.

Association of the B ar of the City of New York.

ABA Committee on Civil & Criminal Tax Penalties of the Section of Taxation. 

ABA Special Committee on Federal R ules of Procedure.

Department of Justice.

National Distr ict Attorneys Association, Chicago, 111.

RU LE 2 0 .1 . CL OS IN G ARGUM EN T IN JU R Y CA SE S

Donora be Jack B. Weinstein, judge, Eastern District of New York.

Honorable Edw ard Dumbauld, judge, Western District of Pennsylvania. 

Association of the B ar of the City of New York.

ABA Special Committee on Federal Rules of Procedure.

GE NE RA L COM M EN TS

Professor Leste r B. Orfield, Minneapolis, Minn.

Comments Received on the Pre liminary Draft of Proposed Amendments to the 

Fed eral Rules of C riminal Procedure for tlie*United States District Courts and 

the Federal Rules of Appellate Procedure date d April 1971

RULE 1 1 . PL EA S

1 Honorable Allen E. Barrow, Chief Judg e, Northern District of Oklahoma.

Honorable Jacob Mishler, Chief Judge, Eastern District of New York. 

Honorable Philip Neville, judge, D istrict of Minnesota.

Honorable B ruce R. Thompson, judge, District of Nevada.

Honorable Ja mes A. von der Heydt, judge, District of Alaska. 

w Honorable Bailey Brown, Chief Judge, Western District of Tennessee.

Honorable Howard V. Doherty, magistrate, Western District of Washington. 

Honorable Philip C. Elliott, circ uit judge, Seventh Jud icia l Circ uit of Michigan. 

Honorable Jea n S. Breitenstein, judge, Ten th Circuit Court of Appeals. 

Honorable Murray I. Gurfein, judge, Southern Distric t of New York.

Honorable Wesley E. Brown, Chief Judge, District of Kansas.

Honorable Arthu r J. Stanley, Jr., Honorable George Templar, Honorable Fran k 

G. Theis, Honorable Ear l E. O’Connor, judges, Distric t of Kansas.

Honorable Luther Bolianen, Chief Judg e, Western District of Oklahoma. 

Honorable II. Yearle Payne, Chief Judge, District of New Mexico.

Honorable Robert L. Taylor, judge, Eastern District of Tennessee.

Honorable Ewing T. K err, judge. District of Wyoming.

Honorable Ben C. Connally, Chief Judge, Southern District of Texas.
1G

Honorable Joe Ewing Estes, senior judge, Northern District of Texas.

Honorable Alfred A. Arraj, Chief Judge, District of Colorado.

Honorable Olin Hatfield Cliilson, Honorable Fred M. Winner, Honorable Sherman G. Finesilver, judges. Dis trict of Colorado.

Messrs. David Alkire, David Cohen, and Dennis E. Curtis, attorneys, Jerome 

N. Fra nk Legal Services Organization of Yale Law School.

William Knapp, a ttorney. New York, New York.

Neil II. Cogan, attorney, New York, New York.

David B. Byrne, Jr., former Assistan t U.S. Attorney, Middle D istrict of Alabama.

Federal B ar Association.

Departm ent of Justice.

Committee of the American College of Trial Lawyers.

Association of the Bar of the City of New York.

Committee on Trial Practic e and Technique of the Second Circuit.

Ad Hoc Committee of the ABA. »

RUL E 12. 1. NOTICE OF ALIBI

Honorable Jacob Mishler, Chief Judge, Eas tern District of New York.

Honorable Winston E. Arnow, Chief Judge, Northern District of Florida. V '

David B. Byrne, J r., form er Assistant U.S. Attorney, Middle District of Alabama.

Federal Ba r Association.

Departm ent of Justice.

Association of the B ar of the City of New York.

Committee on Tria l P ractice and Technique of the Second Circuit.

Ad Hoc Committee of the ABA.

RULE 12.2 . NOTIC E OF IN SA NIT Y

Honorable Jacob Mishler, Chief Judge, Eastern District of New York.

Honorable A. Sherman Christensen, senior judge, District of Utah.

Honorable Winston E. Arnow, Chief Judge, Northern District of Florida.

David B. Byrne, Jr., former Assistan t U.S. Attorney, Middle D istr ict of Alabama.

Federal Bar Association.

Depa rtment of Justice.

Association of the Ba r of the City of New York.

Committee on T rial Practic e and Technique of the Second Circuit.

Ad Hoc Committee of the ABA.

RUL E 15 . DEPOSIT IONS

Honorable Jacob Mishler, Chief Judge, Eastern District of New York.

Honorable Joseph F. Weis, Jr., judge, Western District of Pennsylvania.

Honorable Bruce R. Thompson, ju^ge, District of Nevada.

Honorable Winston E. Arnow, Chief Judge, Northern District of Florida.

Professor Dallin II. Oaks, University of Chicago.

David B. Byrne, Jr., form er Assistant U.S. Attorney, Middle D istr ict of Alabama 

Fed eral B ar Association.

Departm ent of Justice. ,

Association of the B ar of the City of New York.

Committee on T rial Practic e and Technique of the Second Circuit.

Ad Hoc Committee of the ABA.

RULE 17. SUBPOENA. (F ) (2 ) PLACE w

Federal Bar Association.

Committee of the American College of Trial Lawyers.

Association of the Bar of the City of New York.

Committee on Trial Pra ctice and Technique of the Second Circuit.

RULE 20. TRA NSFER FROM TH E DISTRICT FOR PLEA AND SENTENCE

Henry II. Hammond, Assistant U.S. Attorney, Districk of Massachusetts.

Paul R. Sclilitz, Clerk, Distric t of Maryland.

Federal Bar Association.

Departm ent of Justice.

Association of the Ba r of the City of New York.

Committee on Trial Practic e and Technique of the Second Circuit.
17

RULE 32. SEN TENCE AND JUD GM ENT. (A) SENTENCE

Honorable Jac k B. Weinstein, judge, Eastern Distric t of New York.

Honorable Wesley E. Brown, Chief Judge, District of Kansas.

Honorable Ar thu r J. Stanley, Jr., Honorable George Templar, Honorable Fra nk 

G. Theis, Honorable Ear l E. D'Connor, judges, Dis trict of Kansas.

Honorable Robert L. Taylor, judge, Eastern District of Tennessee.

Neil II. Cogan, atto rney, New York, X.Y.

Federal Ba r Association.

Association of the B ar of the City of New York.

Committee on Trial Practic e and Technique of the Second Circuit.

Ad Hoc Committee of the ABA.

(C) PRESENTE NCE INV ESTIGATION

* Honorable Jaco b Mishler, Chief Judge, Eastern Distric t of New York.

Honorable P hilip Neville, judge, D istr ict of Minnesota.

Honorable M urray I. Gurfein, judge, Southern District of New York.

Honorable Ben C. Connally, Chief Judge, Southern Dis trict of Texas.

Honorable Joe Ewing Estes, senior judge, Northern Dis trict of Texas.

Committee on the Adm inistration of the Probation System of the Jud icia l Conference.

Committee on Trial P ractice and Technique of the Second C irc uit

RULE 43 . PRE SEN CE OF TII E DEFENDAN T

Honorable Ph ilip Neville, judge, Distric t of Minnesota.

Honorable Jac k B. Weinstein, judge, Eastern Dis trict of New York.

David B. Byrne, Jr., former A ssistant U.S. Attorney, Middle D istr ict of Alabama. 

Federal Bar Association.

Department of Justice.

Association of the B ar of the City of New York.

Committee on T rial Practice and Technique of the Second Circuit.

Ad Hoc Committee of the ABA.

GENERAL COM MENTS

Honorable Albert V. Bryan, judge, Fourt h Circ uit Court of Appeals.

Honorable Harlan Hobart Grooms, judge, Northern District of Alabama. 

Honorable B ryan Simpson, judge, Fif th Circ uit Court of Appeals.

Honorable Edw ard J. McManus, Chief Judge, Northern Distric t of Iowa.

Comments sent to the Subcommittee on Criminal Justice of the House Jud icia ry 

Committee rega rdin g proposed amendments to the Federal Rules of Criminal 

Proc edure for the United States District Courts dated Ja nuary 1970

RI LE 4. ARREST WARR ANT OR SU MM ON S UPON COM PLAINT

Honorable Frank L. Nebeker, judge, District of Columbia Court of Appeals. 

Departm ent of Justice.

U.S. Attorney’s Office, Southern District of New York.

Ba r Association of the District of Columbia.

Public Defender Service for the District of Columbia.

W RULE 9. WARR ANT OR SUMM ON S UPON INDICT ME NT OR INFORMATION. (A) ISS UA NC E

Ba r Association of the District of Columbia.

Public Defender Service for the District of Columbia.

U.S. Attorney 's Office, Southern D istrict of New York.

RULE 12 . PLEADINGS AND MOT ION8 BEFORE TR IA L; DEFENSES AND OBJECT IONS

John C. Randall, atto rne y, Durham, North Carolina.

Departm ent of Justice.

Bar Association of the D istrict of Columbia.

Public Defender Service fo r the District of Columbia.
18

RUL E 16 . DISCOVERY AND INSPEC TIO N

Honorable C. Stanley Blair, judge, District of Maryland.

Honorable Louis Rosenberg, judge, Western Distric t of Pennsylvania.

Congressman Charles B. Rangel, New York.

Joh n C. Randall, attorney, Durham, North Carolina.

Public Defender Service for the D istrict of Columbia.

Departm ent of Justice.

American Civil Libe rties Union.

U.S. Attorney’s Office, Southern Dis trict of New York.

Bar Association of the District of Columbia.

RULE 29.1 . CLOSING ARG UMENT IN JU RY CASES

Honorable Mitchell M. Cohen, judge, Distr ict of New Jersey.

John C. Randall, attorney, Durham, North Carolina. *

U.S. Attorney’s Office, Southern District of New York.

Comments sent to the Subcommittee on Criminal Justice of the House Jud icia ry 

Committee rega rdin g proposed amendments to the Federal Rules of Criminal 

Procedure for the United States D istrict Courts dated April 1971

RULE 11 . PLEAS

Honorable Ben C. Connally, Chief Judge, Southern Dis trict of Texas.

Honorable Adrian A. Spears, judge, Western D istr ict of Texas.

Honorable Harrison L. Winter, judge, Fourt h Circ uit Court of Appeals.

Honorable John R. Bartels, judge, E astern District of New York.

Honorable Frank L. Nebeker, judge, District of Columbia Circuit.

Honorable J. Braxton Craven, Jr., judge, Fou rth Circuit Court of Appeals.

Honorable C. Stanley Blair, judge, Distric t of Maryland.

Honorable E. Gordon West, judge, Middle Di strict of Louisiana.

Honorable Louis Rosenberg, judge, Western District of Pennsylvania.

Honorable E dward J. McManus, judge, Northern D istrict of Iowa.

Honorable Ja mes Noel, judge, Southern Distric t of Texas.

Honorable James R. Miller, Jr., judge, D istrict of Maryland.

Department of Justice.

American Civil Liberties Union.

U.S. Attorney’s Office, Southern District of New York.

Bar Association of the District of Columbia.

Public Defender Service of the District of Columbia.

Honorable John K. Began, judge, Eastern Distr ict of Missouri.

RULE 12.1 . NOTICE OF AL IBI

Honorable Mitchell II. Cohen, Chief Judge, D istr ict of New Jersey.

Departm ent of Justice.

U.S. A ttorney’s Office, Southern Distric t of New York.

Public Defender Service for the District of Columbia.

Bar Association of the District of Columbia. *

American Civil Liberties Union.

RULE 12 .2 . NOTICE OF IN SA NIT Y

Departm ent of Justice.

Public Defender Service for the Dis tric t of Columbia. 

Bar Association of the D istrict of Columbia.

RULE 15 . DEP OSITIONS

Edward B. Almon, attorney, Denver, Colorado.

Department of Justice.

Bar Association of the District of Columbia.

Public Defender Service for the Distr ict of Columbia.

RULE 20. TRANSFE R FROM TH E DIST RICT FOR PLEA AND SENTE NCE

Depa rtment of Justice.
19

RUL E 32 . SEN TENCE AND JUD GM ENT. (A) SEN TENCE

Honorable Edward Dumbauld, judge, Western Dis trict of Pennsylvania.

Bar Association of the Distric t of Columbia.

(C) PRESE NTE NCE INVESTIGAT ION

Honorable Ben C. Connally, Chief Judge, Southern District of Texas.

Honorable Louis Rosenberg, judge, Western Distric t of Pennsylvania.

Public Defender Service for the Distr ict of Columbia.

RULE 43 . PRESENCE OF TH E DEFENDANT

Departm ent of Justice.

Public Defender Service for the Dis trict of Columbia.

GENERAL COM MEN TS

Honorable Robert E. Maxwell, judge, Northern District of West Virginia. 

Honorable Clement P. Haynswortli, Jr., judge, Fourth Circuit Court of Appeals. 

Honorable Edwin F. Hunter, Jr., judge, W estern Dis trict of Louisiana.

Honorable Harold H. Greene, judge, Superior Court of the Dis trict of Columbia. 

Honorable Wallace S. Gourley, judge, Western District of Pennsylvania. 

Honorable Edw ard J. Schwartz, judge, Southern Dis trict of Califo rnia.

National Legal Aid and Defender Association.

Mr. Hungate. Thank you.

On behalf of the committee, I thank all of you. We certainly appreciate your work and the continuing effort to improve the administration of justice. I think it is a worthwhile endeavor.

I have a few questions here based on some of the comments we 

have had sent to us dealing with plea agreements, or plea bargaining. 

When the prosecution and defense agree on a plea of guilty and a 

specific sentence, the court may impose this or a lesser sentence. However, if the court wishes to impose a more severe sentence, it must 

offer the defendant an opportunity to withdraw the guilty plea. We 

have received some comments tha t this procedure actually shifts some 

of the sentencing power to the U.S. attorney and his assistants, who 

do not have the benefit of the presentence report, and who do not 

have the experience of the judges. Further, a U.S. attorney in a metropolitan area would not have the time personally to review the plea 

agreement, except superficially, resulting in inexperienced assistants 

making sentencing decisions.

I am sure this is not the first time you have heard this argument.

Jud^e Lumbard. We think this matter is governed largely by the 

discretion of the t rial judge. And I would like to have Judge Webster, 

who was U.S. attorney and district judge prior to becoming a circuit 

judge, and is thoroughly familiar with how this system works, comment on this.

Judge Webster. Mr. Chairman, I believe that you have summarized 

the major comments that have been tendered and which are reproduced 

in the House commentary on the proposed amendments. I do not have 

a formal statement to submit. I am here to answer your questions. 

I did submit to the chairman a letter dated July 29, 1974, which 

reflects my views in a more orderly way than I may present them 

to you this morning. And I would request that the letter be made 

a part of the record.

Mr. Smith [now presiding]. Judge, we have your letter, and without objection, it will be made a part of the record.
20

Judge Webster. Thank you, Congressman.

[The letter referred to follows:]

U.S. Court of Appeals, Eighth Circuit,

St. Louis, Mo., July 29, 197J/.

Hon. William L. II ungate, M.C.,

Chairman, Subcommittee on Criminal Justice, Committee on the Judiciary,

House of Representatives, Washington, D.C.

Dear Bil l: I very much apprecia te your letter of July 38, enclosing a copy 

of the House document reprinting letters of commentary about the proposed 

amendments to the Federal Rules of Criminal Procedure. I had hoped to have an 

opportunity to discuss the proimsed rules with you at the Eighth Circu it Conference. We were all disappointed th at the press of public business made it 

impossible for you to attend this year, as you are a very valued member of the Conference.

I am a member of the Advisory Committee on F ederal Rules of Criminal Pro ­

cedure, and as such had an opportunity to watch the evolution of the proposed 

rules into the form subm itted to and approved by the Standing Committee on 

Rules of Practice and Procedure, the Judicial Conference of the United States, 

and ultim ately the Supreme Court. The rules are now in your hands, and I 

can well und erstand your extending the time for consideration until August 3, 

3975, both in term s of the content of the rules and the enormous crunch of 

business presently before the House. I do wan t to say th at I fully endorse the 

rules as submitted to you and would like to add one or two specific comments.

As you know, the proposed drafts were subm itted to the bench and bar by 

our Committee for consideration many months before they were finally recommended for adoption. We received and considered numerous comnients, many of 

which are substan tially reitera ted in the House document of commentary. 

Our Advisory Committee, chairmaned by Judge J. Edward Lumbard of the 

Second Circuit, is represen tative of district and circ uit judges throughout 

the coun try and contains as well distinguished prac ticing lawyers, both 

prosecutors and defenders. We had the benefit of advice and assistance of two 

of the soundest and most outstand ing experts on criminal jurisprudence 

in the country, Prof esso r Fra nk Remington of Wisconsin and Professor Wayne 

LaF ave of Illinois, not to mention Profess or Vorenberg of Ha rva rd who is a 

member of the Committee. In other words, I think the legitimate concerns reflected in the House document were fully considered by men of wide perspective and experience, and these recommendations were again subjected to scrutiny by the Standing Committee, the Ju dicial Conference and the Supreme Court. 

Now, of course, it ’s your turn.

The principal objections seem to focus upon plea bargaining (Rule 11 (e)), 

disclosure of presentence investigations (Rule 32 (c)) and liberalized discovery 

(Rules 35 and 16). The Advisory Committee Notes, which accompany the rules, 

set forth the reaso ns for the changes in some detail. As briefly as I can, I 

should like to meet head-on the principal objections raised to the above rules.

PLEA BARGAIN ING

Quite candidly. I don't like plea bargaining. I don’t like any pa rt of it. But 

the Supreme Court has recognized th at it exists as a reality and has cha rac terized it as proper under app ropriate circumstances. San lobello v. Ne w York. 404 U.S. 257, 260 (1971). In many urba n areas, it has been going on without official 

sanction for a number of years, in order to relieve heavily congested dockets. 

I'm sur e you are aware, from your own experience in St. Louis, that some 

sta te court judges have followed the recommendations of (he prosecutor almost 

without exception.

My own concern has been that deals are being made in chambers with the 

judges heavily involved in the negotiatin g process. I thin k this is wrong, and 

I think that it subv erts public confidence in the justice system. These who are 

interested in the rights of the poor are legitimately concerned th at those 

rights are being bartere d away in back rooms by appointed counsel who are unwilling to p ut out the necessary effort to represe nt the client.

The Eas tern Distric t of Missouri has never had this problem. Its docket is 

fully current, and the judges quite properly, in my opinion, have refused to permit any form of plea bargainin g other than recommendations to drop one or 

more of multiple counts. Other districts, however, are not so fortunate. Viewing
21

plea bargaining as I did, it seemed to me far more preferable to put the bargaining out in the courtroom where it belongs and to disassociate the trial judge from 

any par t of the bargaining process. Anyone who reads Rule 1 1( e) with an objective eye will see t hat it operates to disassociate, rath er than implicate the trial 

judge in the process. lie is expressly prohibited from partic ipatin g (he is not 

now prohibited). He is not bound to accept the bargain. Thus in those districts 

in which the re is no need for plea bargaining it would be the simplest of matter s 

for the tria l judge to tell the United States Attorney tha t he is not interested in 

hearing plea bargains and tha t will be the end of it. On the other hand, in those 

districts in which plea bargaining is a necessary fact of life, this rule strengthens 

the integrity of the process by putting it in the open and leaving the tria l judge 

free to accept or reject it. As one who does not like plea bargaining as it is 

presently practiced, I voted in favor of the rule as drafted because I believe it 

will curb the practices I detest and will regulate those practices sanctioned by 

the Supreme Court.

DISCLOSURE OF PRESEN TEN CE INV EST IGA TIO NS

A m atter of increasing concern over the years has been the ex parte aspect of 

presentence investigations. These reports, prepared by the probation office, are 

enormously useful to the tria l judge, providing they are accurate. During his 

trial , the defendant enjoyed the right of confrontation and the right of crossexamination. Now comes the moment of sentencing. As it presently stands, he is 

apt to receive a sentence based upon information which he cannot challenge 

because he ha s not seen. This has an enormous potential to undermine a defendan t’s view of our justice system. As soon as this rule was first proposed. I began 

to make presentence reports available to defense counsel (I was then on the 

tria l bench). I had the full cooperation and support of the Chief Probation 

Officer. He felt that making the reports available to defense counsel would tend 

to keep them purged of rumor, ill-founded conclusions, etc. I want to say here 

tha t I never once encountered any problems with disclosure. The rule permits, 

under special circumstances, the tria l judge to withhold information, provided 

only that he states upon the record those items upon which he relied in arrivin g 

nt a sentence. I don't see how anyone can quarrel with t his alter nativ e approach. 

I might say also tha t cases are now reaching the circuit courts in which prisoners 

are contending in lxxst-conviction motions that the trial court relied upon erroneous evidence which they were not allowed to see. All of this could be obviated by the new rule.

NEW RUL ES OF DISCOVERY

(Rules 15 and 1 6). I was surprised to read in the Attorney General's lette r dated 

June 17, 1974 that the Department of Justice did not review or consider the final 

drafts as submitted to Congress. I t was my very clear impression that Assistant 

Attorney General Will Wilson and thereafte r Assistant Attorney General Henry 

Petersen were regular atten dants at the Committee meetings and were accompanied by other representatives from the Department of Justice. I note from the 

commentaries, as was also the case in reactions to our proposed drafts , that 

defense counsel object to disclosure as required by Rule 15 and prosecutors object 

to disclosure as required by Rule 16. You will note th at the new approach follows 

closely the approach of discovery under Federal Rules of Civil Procedure. Presently, defendants must file numerous formal motions seeking discovery to which 

they are clearly entitled. The court then has to consider these and either grants 

them or overrules them subject to a meeting with the United States Attorney 

for the purpose of seeing what he is willing to show. Much of this paper shuffling 

is eliminated in districts which are using the so-called omnibus hearing procedure. As now set up, the rules simply provides for the interested party to make 

the request, and the request is to be honored unless an objection is made, at which 

time the court becomes involved. I think this is a sensible and time-conserving 

approach, one consistent with the desire to expedite the tria l of criminal cases.

There seems to be some objection to the disclosure of names of witnesses. I t is 

my understanding tha t this is mandated in most of the state s and is considered 

a “must” in the minimum standards of criminal justice published by the American Ba r Association.

These rules left the hands of the Advisory Committee over two years ago. 

afte r more than a year of consideration. I think it is a fai r statement to say 

tha t they standardized the best practices employed by district judges on an individual basis throughout the country. In the case of plea bargaining, where
th e d is tr ic t ju dge lia s no need for th is devic e, he is no t comp elled to ut iliz e it. In 

th e ca se of pr es en tenc e in ve stig atio ns , th e ju dg e ca n pro te ct his so ur ce s if he 

ne ed s to. prov id ed only th a t he le ts th e def en dan t kn ow th e n atu re of dis co ve ry, 

bo th side s are giv en an eq ua l sh ot a t ha vi ng ac ce ss to th e fa ct s on an ex pe di te d 

ba sis .

I hop e I ha ve no t im posed upon ou r fr ie ndsh ip by such ex te ns iv e re m ar ks, bu t 

I ha ve liv ed w ith th es e ru le s pre tt y clo sel y, and I be lie ve in them . If th er e 

is an y tim e while you are in the dis tr ic t th a t yo u ca n sp ar e fo r such pu rpos e, I 

wo uld we lcome an op po rtun ity to vis it w ith yo u ab out th e ru le s in pe rson .

W ith high r eg ar ds .

Sincerely ,

William II. Webster.

Ju dg e Webster. T st ar t where Ju dg e Lu mba rd left off, a nd th at is, 

the r ule was designed to provide max imu m flex ibility and ap pli catio n 

in th e discreti on of the tri al judge.

As I am sur e you are aware, the pro vision s for plea agr eem ents are 

con tain ed in rule 11 which deals with pleas of gu ilty generally. It 

pro vides for a va rie ty of types of plea agreem ents, all of which are 

practiced in varying degrees i n d iffere nt distr icts of the U nited Sta tes , 

depen din g in l arg e par t upon the degre e o f congestion in those courts.

First of all, i t is con tem plated th at a plea agreem ent ma y be reached 

with resp ect to the submission of a plea to lesser offense. Thi s is not 

at all uncommon in reaching disposition s in distr icts which are 

crow ded and even in dis tricts which are not crowded.

Th e pract ice of drop ping cou nts with leave of court is a for m of 

plea agreem ent. A nd I would say th at th at pra ctice is recognized in all 

distr icts in the U nited States.

Ot he r varieties include an agr eem ent no t t o oppose a plea agreem ent 

or reco mmending a specific sentence.

These forms of ide a agreem ent which get into the sen tencing fu nc ­

tion itself generally find their appeara nce or presence in congested 

distr ict s where the jud ges have come, because of the pre ssure on th ei r 

dockets, to dep end upon the U.S . attorneys to work out ap pr op riate 

arrang em ent s.

My own di strict, t he eastern di strict of Mis souri, is cu rre nt both in 

civil and criminal cases. As a U .S. attorney there i t was not necessarv 

fo r me, no r was T encouraged, to mak e anv recommendation s at all 

with respect to sentence, a lthough T was, a s T believe a ll U.S . a tto rneys 

are allow ed to do, perm itted to recommend the dr op ping of some 

cou nts in m ultiple-c ount cases in o rder to achieve a plea of gu ilty .

I mentio n th at sim ply so t hat T might say to you th at one does not 

have to like ple a b arga ining to recognize t he wisdom of th is ru le. An d 

T su pp ort th is rule because T believe it does one imp ortant, thing . It 

bring s the process out into the open. An d second, it specifica lly tells 

the tria l jud ge tha t he is no t to be a pa rt of plea agre eme nt discu ssion s.

T have seen situatio ns in my exp erie nce and pra ctice before St ate 

courts in mu nicipal areas tim e and tim e again when the jud ge, the 

prosecutor, and the defen se counsel would mak e deals out o f the pr esence of the de fend an t, deals which were bind ing upo n the jud ge himself. Th is rul e tak es into account the sta tem ent of the Supre me C ou rt 

of the Un ite d State s in the Santobello opinion in 1971 th at plea barga ining is an essential component of the a dm inist ratio n of justice , and, 

pr op erly adminis tered, it is to be encourage d. We felt in ou r discussions and in fac ing up to the pro blems of ple a bargaining , th at this 

typ e of rule would help to provide fo r pr op er administ ratio n of plea
23

ba rgaining wherever it was in fa ct pract ice d throug ho ut the Uni ted 

Sta tes. It pro tec ts ra th er th an dem eans th e tr ia l judge. I t does no t 

bin d the tr ia l jud ge to accept the judg men t of an as sis tant U.S. attorney . The tria l judge, as the rules pro vide, may de fer decision on a 

plea agreem ent if he even agrees to en terta in one, un til af te r he has 

reviewed t he presentence rep ort .

In my view, and I believe in the view of the othe r judg es who are 

members of this committee, the di strict jud ge him sel f can determine, 

based upon his own sense of need an d his own d ocket, the exact exte nt 

to which plea ba rgaining will be practic ed in his own com munity . 

Th ere is no thing under this rule to prevent the district judg e fro m 

say ing th at he does not wa nt to he ar a recom mendatio n fo r sentence, 

absolutely no thing a t all.

If , on the o ther hand, he feels it is advisable—and some of them do— 

the rule s pe rm it it. But it is ou t in open cou rt.

V Those who are inte res ted in seeing th at a de fend an t is senten ced for

a term, or fo r an am ount of pu nishmen t com mensu rate with his of ­

fense, and . there fore, th at no deals be made to sho rtchange the pub lic 

intere st are not the only ones concerned. We are also he aring in law 

schools and colleg es and in academ ic circ les concern fo r th e poo r who 

may be sho rtc hanged by a b ehind-the-scenes plea a greement. T hey have 

even given it a name. It is be ing called “th e invis ible process.” I suspect 

th at you may have alr eady seen th at term, o r if yo u have not, I know 

th at you will he ar i t in t he futur e. Th e invisib le process refers to th at 

pa rt o f the jud icial system in the process of ju stice which is n ot out in 

open court. Our view is t hat th is rul e pu ts it out in the courtroo m, it 

tells the jud ge t hat he is n ot to be a pa rt o f it, and gives h im comp lete 

flex ibility to determine the exten t to whi ch, in his cou rtro om, wi th 

his dock et problem s, he will en terta in ple a ba rgain ing .

Ha ving p rac ticed a s a defe nse lawy er and a U.S. att orney, it di d not 

tak e me very long to realize th at one or two mistakes in sentence recommenda tion will pu t the U.S . attorn ey in tune with the co urt as fa r 

as wh at kind of sentence he is going to offer, and if the tria l judg e 

does not wa nt to e ntertain sen tence recom menda tion s th e U .S. at torn ey 

is not g oin g to e nte r into tha t type of p lea agreem ent.

So in sum, the d ist ric t jud ge h as lost none of h is control. I t does not 

demean the distr ict judge, it prote cts him. It pu ts the process out in 

the open, and thereb y gives it some legitim acy —it give s legitim acy 

* to a pra ctice which will be followe d wh eth er we pro vid e th e rules or

not.

Th an k you. Mr. C hairm an.

Mr. II ungate [aga in p residing ]. W ha t you are suggesting , I guess, 

w Judg e, is t hat a l aw ye r will very quickl y lea rn wh at s ort of sentences

the jud ge accepts and does no t accept.

Ju dg e W ebster. Ind eed , he will.

Mr. H ungate. If the pro sec uto r sug gests a sentence and the jud ge, 

gives a lesser one, then the jud ge is “soft.” If th e p rosec uto r sugg ests a 

sentence and the jud ge wants a stro ng er one, then the jud ge is subjec t 

to crit icism fo r being too harsh . But I un de rst an d if th at pro sec uto r 

works with the judg e very long , h e will d isco ver what so rt of sentence 

to offer.

Ju dg e M ebster. And if he is before a jud ge who does no t wa nt a 

sentence recommendation , he will not en ter into t hat type of plea a greement.
24

Mr. Hungate. What about the contention that when prosecutors and 

defendants are negotiating they do not have the benefit of a presentence 

investigation?

Judge Webster. I think that is true, Mr. Chairman. I have talked to 

various judges who do use plea bargaining. And they find that since 

tho U.S. attorney at least has access to prior felony conviction records, 

the Hoover sheet, that, tho recommendations generally are not too far 

off. I think tha t there have been some suggestions tha t the U.S. atto rney ought to take a more direct responsibility in the sentencing process rather than leaving it to the assistant U.S. attorney. And certainly 

he can do this within his own office control. And I suspect tha t if one 

or two assistant U.S. attorneys are burned a couple of times, that they *

will start to do this.

Mr. Hungate. Some of the public defenders urge that a provision 

might be added tha t the court could not reject a plea of guilty solely 

because a defendant did not admit guilt, that the admission of guilt V

may not bo a constitutional requirement. The individual accused might 

voluntarily and knowingly consent to the sentence even i f he is unwilling to admit his guilt.

Judge Webster. I think that is covered by the Alford decision, Mr.

Chairman. If there is a factual basis for the plea and the defendant 

has a legitimate and expressed purpose for wanting to plead notwithstanding his claim of innocence, it is not error for the court to accept it.

Mr. Hu ngate. Do you think that Alford covers it in such a way tha t 

it need not be put into the rule ?

Judge Webster. That is my present view, Mr. Chairman.

Professor Bemington. Mr. Chairman, may I just add the fact that 

the rule does contain a provision for the nolo plea. And the advisory 

committee note suggests that, for the defendant who does not wish to 

admit his guilt, a plea of no contest, is the appropria te route. And the 

rule provides that the judge should accept tha t plea if it is in the 

interest of justice to do so.

Judge Lumbard. Mr. Chairman, on the matter of plea agreements,

I th ink I should point, out that, which Judge Webster intimated, tha t 

there are many districts where there are no plea agreements—for 

example, the southern district of New York. There are no plea agreements in the sense of an agreement on a recommendation of a particular sentence. And the U.S. attorney will not participate in such discussions, and the judges do not accept them. *

Mr. Hungate. Mr. Smith.

Mr. Smith. Judge Lumbard, we have a note here that as you state, 

in the southern district of New York they feel, several of the judges 

and the U.S. attorney, th at a recommendation by the prosecution of a *

particular sentence would put pressure on the judges to accept the 

recommendation. And apparently, therefore, they do not do this.

Judg e Lumbard. Tha t is one of the reasons, Mr. Smith. But it has 

been done. When I became U.S. attorney in 1953 I put an end to 

the practice of making plea agreements and making recommendations 

to the court. And there have been none since that time.

Mr. Smith. But Judge Lumbard, you are of the opinion, with the 

Judicial Conference, that it is a good idea to have a standard procedure 

and bring it out into the open ?
25

Judge Lumbard. I am. And in those districts where the U.S. attorneys and the judges are willing to engage in the practice, it seems to 

me that is a matter properly within their discretion. And what the 

rule attempts to do is to provide the procedure so that it is all laid out, 

and largely so tha t the defendant himself knows about it and the 

court is assured th at the defendant knows exactly what has happened, 

and why. and laying it all out on the record in that way as the rule 

would require means tha t the defendant cannot at a later time in some 

postconviction proceeding, claim th at he did not know what was going 

on. and that he was not fairly treated.

Mr. Smith. It sounds like a good idea to me.

* Mr. Hungate. Mr. Dennis.

Mr. Dennis. Any of you who wish may address himself to this.

What happens to the theory, if you have all this done in open court, 

what happens to the theory tha t you do not accept a plea of guilty of 

a man who claims he is not guilty, and here he comes in and says he is 

going to plead guilty under this agreement, and the judge savs, well— 

all this is in open court—and the judge says, I do not accept this agreement. and the man says in that case, I change my plea, I am not guilty, 

and all this is in open court and in the newspaper, and before the court 

which is going to try the case? And what happens to the idea tha t 

the man is innocent unless he is really guiltv, that you do not accept 

a plea if the man claims he is innocent, and then he can backtrack and 

say he is guilty one minute and innocent the next, according to whether 

the agreement is carried out, and this is all spread in the record and 

spread in the newspapers, and you go to tria l with that background ? 

That bothers me a little. I am not sure whether this open court business is good or bad.

Judge Lumbard. Of course, if the situation is as doubtful as what 

you have described, the judge would be well advised not to take the 

plea and require that the ease go to trial.

Mr. Dennis. I agree. B ut it still seems to me a little odd to write 

up a record of th at kind and spread it on the public view. Wha t happens to the presumption of innocence? Here the judge knows the fellow was ready to plead guilty to somethng, and everybody else in 

town knows it, too.

Judge Lumbard. Well, the presumption of innocence is something 

the defendant, advised by his counsel, can always waive. And as you 

» know, he most frequently does, because 82 percent of the convictions

in the Federal system are by plea of guilty.

Mr. Dennis. I am ju st wondering if an informal handling of this 

thing—not with the exclusion of the defendant or his counsel, but the 

’ way I always participated in it, the defense counsel talked with the

prosecuting attorney and he talked with the defense counsel, and you 

got to a tentative agreement and then you went in together and talked 

to the court, and you never got a promise from the court as to what 

he was going to do. that was understood, but you got a fairly good idea. 

And usually most judges were decent enough to intimate that they did 

not think this was very good, if tliev did not. And if they did not, 

you went back and told your clie nt; I do not think the court is going 

to go along with this: do you want to do it or not? All this was done 

privately, as you say, informally, but you did not spread on the record
26

this business of saying you are guilty if you can get what you want 

and not quilty if you cannot, and I just wonder whether it is an improvement or is not.

Judge Lumbard. I do not think much of the backing and filling gets 

on the record. Of course, tha t has to go on before the parties are in 

agreement. I think Judg e Webster's programs-----

Mr. Dennis. I am not really arguing, I just want to know what you 

fellows think about it.

Mr. Hungate. Mr. Smith and I have to go to testify in the Senate.

Mr. Dennis, will you take the chair?

I would suggest tha t von go ahead with other witnesses until we 

return. I have a number of questions for this panel, so if you should 

be done before we return, I would like to ask this panel to return this 

afternoon.

Would 1 o’clock be a reasonable time ?

Mr. Dennis. That is what I wanted to know. &

Mr. Hungate. This is the group th at is the laboring oar in producing the proposed amendments.

Mr. Dennis. And then if we adjourn at noon you want to reconvene 

at 1 o’clock?

Mr. Hungate. And have this group return. We will get back before 

noon if we can. We are answering a Senate summons.

Mr. Dennis [now presiding]. Go righ t ahead. Judge.

Judge Webster. If T may respond, Mr. Chairman; first, I thin k it 

might be good to point out tha t these are already being filed in the 

district courts, both State and Federal cases, today based on the challenge that a promise made privately, an understanding with the judge, 

a promise by the trial court, a prosecutor, or a combination of the two 

was broken. This rule attempts to put those agreements out in front 

so that the court can ascertain in open court what agreements, if any, 

exist, and what promises, if any, were made, what threats, what understandings exist. And I think that this will go a long way to cuttin g 

down on some of the habeas corpus petitions tha t we are getting out of 

the prisons these days, based upon allegations of private deals. So that 

is a part ial answer to your question.

Another partial answer to your question, it seems to me, is tha t the 

trial judge must, in taking a plea of guilty, have a factual basis for 

accepting the plea. And I think tha t problem is present in every case 

where a plea of guilty is offered and there is any backing or filling at r

all. So I do not think that the adoption of rule 11 will aggravate that 

problem. It is a problem tha t is there because of the requirement tha t 

the judge believe that there is a factual basis for a plea.

I am inclined, going back to the first point, to think tha t we will 

have less post-conviction challenges to the process with an open court 

proceeding than we would if the plea bargaining process is not regulated under Rule 11.

Mr. Dennis. What happens under this rule to the situation where the 

man says in effect, well, I am going to plead guilty to this, but I am not 

guilty of anything? Does the judge go ahead and take it then, if tha t 

is the agreement, or what does he do?

Judge Webster. I would not take it.

Mr. Dennis. I would not. either. But I suppose he could.

Judge Webster. The judge has discretion whether to receive the 

plea or not. And even on the decided cases—the First Circuit says he
27

has a serious duty to consider it, the District of Columbia Court of 

Appeals says th at he has to have a good reason for not accepting the 

plea on either of those standards—the hypothetical question you gave 

would justify refusal to accept the plea.

Mr. Dennis. I t certainly would justify it. That is for sure.

Do you think it is a good idea to allow the judge—I understand he 

can wait until he gets the presentence judgment or report—but should 

he not be required—otherwise is he not really letting the district attorney set the sentence ?

Judge Webster. Rule 32, which will be discussed, I presume, in the 

course of this hearing this morning, provides tha t a presentence report 

shall be prepared in all instances except those instances in which the 

court states upon the record his reasons for not requiring a presentencing report. So I think the burden is on the court to demonstrate a 

reason for not deferring his decision until he has received a presentence 

report.

Second, the rules contemplate tha t the defendant may consent to 

the preparation of a presentence report in advance of his plea of guilty, 

so tha t there is a possibility at least t hat the presentence report may 

have been made available to the judge before the plea was taken.

Mr. Dennis. I thin k I understand all th at. It just seems to me that 

ordinarily the court should have that. And, of course, he does not have 

to have it now, I suppose. But while you are writing the rules, maybe 

tha t ought to be made a reference.

Judg e Webster. I think a reference to rule 32 will show tha t there is 

a clear instruction to the district judge to have a presentence report 

prepared unless he is prepared to state on the record why he did not 

want one. And I do not know of very many reasons why he would not 

want one. This is a very valuable tool, as 1 am sure the chairman 

knows, in assessing a sentence.

Mr. Dennis. Does any other member of the panel, Judge Lumbard, 

Professor Remington, have anything to contribute to this rule ?

Professor Remington. If I may, I will refer to the practice tha t you 

indicate has been engaged in the area in which you practice.

The rule as proposed would allow that practice to continue, provided 

only that the judge does not engage actively in the negotiations. But, as 

I read the rule proposal, there is nothing tha t would preclude notice 

to the judge, in advance, of the results of the discussion between the 

prosecutor and defense counsel.

The only difference is that in many jurisdictions when that has hap ­

pened, and when the case appears in court, and when the judge asks 

whether there have been promises made or an agreement, the defendant must answer th at question “no,” because the answer “yes” would, 

under conventional plea of guilty practice, require the judge to hold 

tha t it is an involuntary plea made as a result of a promise.

The problem is th at we are requiring defendants to answer “no” to a 

question where they believe the answer to be “yes.”

The proposed rule allows the defendant and counsel to give the 

truthful answer, that is, yes, there have been discussions, and the 

consequence of those discussions are as follows. And we think th at is a 

much more healthy situation in the administration of justice.

Mr. Dennis. What you are saying in effect, is that the informal type 

of conference tha t I referred to could actually take place ahead of
28

time, and the proceedings in open court would more or less ratify what 

had already transpired between the counsel on both sides and the court 

in the manner I described ?

Professor Remington. Th at is exactly the situation, provided only 

tha t the judge is not a p arty to the negotiation, that is, th at he does 

not actively try to settle the case.

Mr. Dennis. I am thinking that he would not be that either, because counsel either go in and tell him what they have arrived at, recommend—in fact, the rule very much encourages the practice, because 

it says, the attorney for the Government and the attorney for the defendant may engage in discussions with a view toward reaching agreement, and so forth. So tha t it not only allows but actually encourages 

discussions of this sort. And as you indicate, it provides for a procedure in which the court may ratify the agreement if it thinks it in the 

interest of justice to do so. You would see nothing in the rule, then, 

that would prevent the district attorney and the defense counsel, 

once they have arrived at an agreement, from having an informal conference with the tria l court before they went into the open court?

Professor Remington. I do not think the rule is inconsistent w ith 

that.

Mr. Dennis. Now, coming down to your point th at this permits the 

defendant to answer truthfully, which I appreciate, do you think you 

run into any possible constitutional problem there whatsoever by 

virtue of the fact that he says, now, this is a result of a bargain?

Professor Remington. I (io not. As I read the Santobello case, the 

Supreme Court of the United States has said th at plea agreements are 

appropriate if conducted under proper circumstances. And the rule 

tries to insure that the circumstances are appropriate. The trial judge 

must also inquire into the question of voluntariness to make sure th at 

there were no threats or inappropriate methods used to exact a plea 

of guilty. Under those circumstances I would thin k that the procedure is constitutional unless the court holds that the plea agreements 

are per se unconstitutional. But it seems to me that the Santobello

case indicates the contrary.

Mr. Dennis. Judge Thomsen.

Judge Thomsen. I think we must recognize the great variety of 

circumstances tha t the rule has to meet, Plea bargaining is not just 

a regular procedure th at is always done in the same way. An enormous 

amount of plea barga ining goes on whether it is on top or in the 

bottom. You often have an indictment with a good many counts in it, 

and it is quite routine for a bargain to be made that a man would plead 

guilty to one count, and th at the other counts will be dismissed, which 

has the effect of limiting the possible sentence which can be imposed, 

of course. Many mail fraud cases have dozens of counts in them. And, 

of course, in tha t type of situation there is bound to be some sort of an 

understanding.

And I do not think anybody really objects to that.

On the question of sentence, where the Government says it will 

recommend a particular sentence, the Goverment cannot bind the judge. 

And by and large, the judges of our court do not let them do it. And 

what often happens is that when the facts are brought out they say 

that the defendant is going to plead guilty to this particular count. And 

the Government has agreed tha t it will either recommend a sentence
29

of n ot more th an x y ears, o r will recommend a sentence of pro batio n, 

or m ay say th at it will not oppose a sentence o f pro bat ion . Th ere are 

a great many varieties th at bargaining take s. An d very fre quently, 

where the fact s have been brou gh t out and the de fen dant has said, this 

is it, the jud ge the n, before he can accept the plea of g uilty , still has 

to find th at the f acts sup port it. An d the j udge often says, you un de rsta nd th at I am not bound to accept th is recom me ndation; and with 

the knowledge th at I am not bound to accept the recommendation , I 

will not accept it u ntil I have seen the presenten ce re po rt; do you wa nt 

to withdraw’ yo ur ple a and go to tria l before some othe r jud ge, o r do 

you w ant to stick to you r plea ?

An d in the gr ea t majority of cases, the overw helming major ity in 

ou r court, the ma n says, I will tak e a chance on you, Ju dg e, I wa nt 

my plea to sta nd. An d in the ove rwhel ming majority of cases the 

jud ge does give the recom mend ed sentence, because the U.S . attorney 

and the de fend an t's att orney between the m hav e been wo rki ng out 

wh at they real ly believe is fair.

Now\ at the pres ent tim e, there is so much discovery by the de fend an t 

o f what the Government has—the de fend an t goes in and talks to the 

Governme nt. We have such a pract ice in o ur court th at we hav e very 

few motions for discovery. The U.S . attorney knows wh at the jud ges 

will req uir e him to give, and he gives it autom atical ly, why waste 

tim e going to court? By the time you hav e ha d th at and the y have 

tal ked it over, the U.S . att orney, of course, does not have the benefit 

of th e presentenc e repo rt, b ut he has t alke d to th e defe nse law yer w ho 

has giv en him much inf orma tio n th at is going to be tol d to the 

presentence man on the one side, and the U.S . attorney know s some 

things whi ch the presentenc e re po rt will no t show—and th at is 

possibly the weaknesses of the Go vernm ent’s case—and the fact th at 

the y may not be able to prove this cou nt or th at coun t. An d where 

it appears to be in the int ere st of justice and often in the interest 

of the d efen da nt th at there be a p lea, he should ge t th e op po rtu nity of 

havin g pro batio n. An d since we are ge tti ng m ore ade qua te prob ati on 

staffs, we are able to do a be tte r job with it.

Altho ugh you hav e ha d some let ter s fro m jud ges who I know and 

who I respect, also ma ny jud ges w’ho I know and respec t equ ally , 

inc lud ing the ma n who I th in k is alm ost general ly recognized as an 

ou tst an ding cri minal jud ge, Ju dg e W alte r Hoffm an of No rfo lk, w’ho 

you hav e pro bably seen or heard here, has said th at he finds no 

difficulty at all in wo rking under a pro ced ure in his court sim ila r to 

wh at the pro posed rule prov ides. I would say fo r most of the exp erien ced jud ges who I know, if a jud ge does no t w an t to do it there is 

no thing in this rul e th at says he has to. The flexib ility of this rul e to 

meet all sor ts of si tuati on s and to take c are of t he view’s of all sorts o f 

jud ges is one of its streng ths , I th ink . A nd w e do not ha ve secrets where 

the people say, why did he do that.

Mr. D en nis. Than k yo u, Ju dge.

I ga ther fro m our corresp ondence here , wh at lit tle chance T have 

had to look at it, th at th is is one o f the most controver sial rules. An d, 

there fore, I wa nt to g ive every man on the pan el, all of whom are in 

support of the rule , as I understand it, an op po rtu nity to present an ything he wo uld like to at t his point.

44 -6 23— 75------ 3
30

Judge Thomsen. May I call your attention to this? I know and 

respect very much the judges who have written you. But they are 

relatively few when you consider the great number of judges in the 

country. And we sincerely believe tha t the grea t majority of judges 

who have not written to you are not writing because they are satisfied 

with the rule.

Mr. Dennis. T hat is usually the case, we find that in the Congress, 

too.

Does counsel have anything he would like to inquire about?

Mr. Hutchison. The changes in rule 16(b) provide tha t the prosecution is entitled, upon request, to inspect and copy certain tangible 

items in the possession of the defendant, and under rule 16(d) (2), if %

the defendant fails to comply with that request he may be prohibited 

from introducing the evidence. What is the advisory committee’s 

position upon the constitutionality of this? It can be argued tha t the 

defendant is compelled to produce certain items of evidence, contrary V

to the fifth amendment, and that if he does not, he may not be permitted 

to introduce the evidence, contrary to the sixth amendment.

Professor Remington. Mr. Hutchison, the committee came to the 

view that it is constitutional to require the defendant to disclose prio r 

to trial those things, or at least some of those things, which he intends 

to use at the trial. The theory is tha t of Justice Roger Traynor, who 

was confronted with tha t question as a member of the Supreme Court 

of California. He said th at it is not inconsistent with the fifth amendment to say to a person th at if you intend to use evidence, you must 

disclose that prior to trial. There is nothing tha t compels disclosure of 

material which the defendant does not intend to disclose later.

The ride merely provides for the timing of th e disclosure. It is, as 

discovery typically is, an antisurprise rule. And it says, if you are 

going to introduce evidence—and it also says to the Government, if 

you are going to introduce evidence—it is desirable tha t the other 

party be aware of this in advance of trial to enable him to prepare so 

tha t lengthy interruptions of trial may be avoided.

Now, that is not to say tha t it is an unimportant or not a difficult 

issue. And there are those who do urge that, despite the holdings to 

the contrary, there is a fifth amendment problem. As I understand 

the state of the law, the view of Justice Traynor is the prevailing 

view. Most courts confronted with tha t specific question have, I believe, come to that conclusion.

Mr. H utchison. What about the sixth amendment question? I f the 

defendant fails to produce the evidence, the penalty is prohibiting him 

from calling a witness or introducing the evidence? Is tha t settled 

by your answer to the fifth amendment question ? *

Professor Remington. My memory is t hat the rule does have a saving clause. I t does give the judge the a uthority to allow the introduction of the evidence, despite the failure to disclose, if there is cause 

shown for the failure to do so. The rule is not absolute. But if the 

defendant refuses to disclose, and there is no reason for doing so, he 

is precluded from offering that at the time.

Mr. H utchison. Is not the impact of this rule to permit the Government, with a large army of investigative agents, to go out and to 

question and examine and run an investigation of the defendants 

case, giving the Government an unfair advantage? It already has a 

great advantage in the FB I and its other investigative tools.
31

Professor Remington. That is an argument that can be made. The 

committee was assured by its members who have had experience with 

discovery in places like California that tha t kind of thing does not 

happen. It is difficult to be certain tha t abuses of the rule will not 

occur. But the committee came to the conclusion tha t the risk of abuse 

is safeguarded by the discretion given the judge.

There is another argument made, and th at is that giving discovery 

to the Government is relatively meaningless, because defense counsel 

will say, we have not decided what evidence we are going to use, and 

when we decide we will, of course, give you notice, but tha t decision 

does not take place until the trial.

But in a significant number of Federal districts there are experiments going on with new procedures such as the omnibus procedure 

where the judges are trying to have a maximum number of issues 

resolved prior to trial. It is generally thought tha t this kind of procedural innovation can be undertaken only if there is relatively full 

disclosure by both sides. The experience in these districts has been 

tha t the kind of abuse which you fear does not occur.

Mr. H utchison. I take it, then, tha t you would say tha t the use of 

the FB I or other investigative tools by the Government after the 

defendant has disclosed evidence, would be an abuse under the discovery rule?

Professor Remington. No; I thought by your question tha t you 

were indicating tha t it might go beyond that. If physical evidence is 

disclosed, certainly the idea is tha t it would be subject to appropriate 

examination. In the case t hat Justice T raynor had, it was a question 

of medical examinations of a person whose defense to a rape prosecution was that he was impotent. It is very difficult to litigate that kind 

of question without knowing what those medical reports are, and ver y 

difficult for the prosecution if it is confronted with the medical reports 

in the midst of the trial. It seems to me imp ortant and in the interest 

of justice to suggest to a defendant that , if he is going to introduce 

medical reports, he make tha t fact known to the prosecution prior to 

trial in order to give the prosecution an opportunity to prepare its 

case in an appropriate way. I thought you were raising the question 

which is sometimes raised against discovery, and tha t is, if you allow 

either side to find the other side’s theory of the case, you create the 

risk of fabrication, tha t is, you create the risk of a fabricated prosecution or a fabricated defense to meet the theory of the other party.

Mr. Dennis. You have, Air. Remington, a similar constitutional 

question which exists, in your rule about notice of alibi, tha t you do 

hero in this discovery matter. I n other words, if you do not give you r 

notice of alibi it cannot put the evidence in except in the court’s discretion, as 1 understand it. We have had a statute like tha t in my 

State for a long time. I have always wondered about the constitutionality of it.

Professor Remington. It is the same issue, Air. Chairman, an issue 

which has not yet been resolved definitely. It is the view of the advisory committee that, with adequate authority for the judge to waive 

the sanction, the rule is constitutional. W ithout the sanction of excluding the witnesses’ testimony the requirement of pretrial disclosure isnot enforceable.

I might say tha t it was interesting that, of the membership of the 

advisory committee, the strongest proponents of requiring the defend-
32

ant to give discovery were the defense counsel on the committee. Their 

reason was that the kind of discovery which they thought app ropriately to be required of the prosecution was not feasible unless discovery was reciprocal. And in their view it was extremely important to 

have disclosure prior to trial. Somewhat to my surprise, the strongest 

arguments in favor of the requirement of defense disclosure were 

made by experienced defense counsel such as Joseph Ball from 

California.

Mr. Dennis. These things definitely work both ways, there is no 

question about that. It is a great help to make the prosecution say 

where and when what claims have happened, and make them produce 

evidence, and so forth, there is no question about that.

Mr. Blommer.

Mr. Blommer. Thank you. Air. Chairman.

I would like to inquire about rules 4 and 9—I think the change in 

rule 4 will cause a very large increase in the use of summonses. The V

note gives no reason for this change. I wonder if that can be explained.

What benefits are going to accrue by changing arrest procedure?

Professor Remington. The question is where the responsibility 

should lie for determining whether a person is to be arrested pursuant 

to a warrant or asked to respond to a summons.

The language of the rule as it is now proposed was agreed upon only 

when the rule reached the standing committee. However, early d rafts 

had raised this question. I know t ha t the Department of Justice opposes this change in rules 4 and 9. When the tentative d rafts were circulated in 1970 the Department of Justice responded in writing to the 

advisory committee. One sentence of th at response identifies the position of the De partme nt: “The decision as to whether a summons or an 

arrest warrant should be used is properly left to the executive branch.”

It is the view of the advisory committee that the decision as to 

whether a person is to be summoned or arrested is properly left to 

tho judicial branch. The reason is tha t, left to the executive branch, 

there are sometimes pei’sons who are arrested, who suffer the considerable consequences of arrest where there is no adequate reason for the 

-arrest. I recognize ami have respect for the argument on the other 

side, an argument which, I assume, the Department of Justice, represented here this morning, will make.

Mr. Blommer. I understand. My question is. though, are you saying that the reason you are going to recommend the change is to pro- *

tect law enforcement officers?

Professor Remington. No; the reason is to put this very important 

decision, in many ways the most important decision from a citizen’s 

point of view, in the hands of a judicial officer. *

Mr. Blommer. Let. me ask you this. If the Government believes that 

an arrest warrant should lie issued the rule allows the Government to 

state a valid reason for the arrest warrant. Wha t in your opinion or 

in the opinion of the Judicial Conference, would lie a valid reason?

Professor Remington. I would think that any of the reasons that 

are identified in the letter from the Attorney General, the expectation 

that the person would not respond to the summons, or that the person 

will secrete or destroy evidence.

There is a very important and very difficult question to which the 

rule dot's not speak, and that is whether a desire to effect a search inci-
33

dent to an arrest is a valid reason for the issuance of a warant. The 

rule is silent on this point. In his letter the Attorney General indicates 

tha t as a consequence of the rule there will be pressure to effect an 

arrest without a warrant, ra ther than going before the judicial officer 

and requesting a warrant. The rule does not preclude this possibility. 

It merely says that if you are asking a judicial officer to authorize 

the taking of a person into custody, you must give a reason why the 

taking of the person into custody is justified.

Mr. Blommer. If a man is arrested by an officer without a warrant, 

and evidence comes into possession of the Government a t tha t time, 

at a suppression hearing, can the defendant raise the question that a 

k . valid reason did not exist to bypass the summons procedure, and 

thereby declare the arrest invalid, and the evidence suppressible ?

Professor Remington. I do not think so. Court have not held, as 

yet anyway, that a failure to get a warrant is grounds for suppressing

* evidence obtained as incident to an otherwise lawful arrest. There is 

also concern as to whether when there is an arrest warrant and a 

search incident to the arrest, the defendant can litigate whether the 

reasons for the issuance of the warrant were adequate. The rule does 

not speak to t hat issue, and it would, therefore, be le ft to courts confronted with tha t question to decide.

Mr. Blommer. Thank you. I have no more questions, Mr. Chairman. 

Mr. Dennis. Gentlemen, going back to rule 16 for a moment, I gather 

from the file here that one of the more controversial parts there so far 

as the Department of Justice is concerned, is the requirement th at the 

Government furnish a list of witnesses. Now, that strikes me as a 

very fair requirement, generally speaking. But I also see their point 

tha t in some types of cases it may be very dangerous for the witnesses. 

And I would be glad to have the comments of the panel on tha t 

subject.

Professor Remington. Mr. Chairman, this is an issue which has 

confronted the Advisory Committee for the entire period of my 15 

years as a member of and reporter for the Advisory Committee.

The D epartment of Justice, represented on the advisory committee 

over the life of the committee, has vigorously and sincerely presented 

the view that, in the Federal system, there are instances in which disclosure of the identity of a witness prio r to trial does subject that witness to very serious risks of harm or death. The issue has been dis-

* cussed in detail by the advisory committee over 15 years. The result 

is a proposal which tries to deal with the issue by giving to the judge 

the authority to make a protective order, and also autho rity to allow 

the Government to take the witness’s deposition under rule 15. Rule

' 15 expands the rig ht to take pretrial depositions to include depositions

on behalf of the Government and to allow the Government to use such 

depositions. The hope is tha t the existence of the deposition and the 

opportunity to use that as evidence will lessen the incentive on the part 

of anyone to try to tamper with the witness and change his story.

Mr. Dennis. You have recognized the problem, and you have two 

safety valves. One is your protective order which would in effect, I 

guess, waive the requirement in certain cases on a showing. And the 

other is the fact that the Government can preserve the testimony. And, 

therefore, I suppose, why bump a man off when you have already got 

his evidence ?
34

Professor Remington. The hope is th at this is a rea listic expectatio n.

Mr. Den nis. I th ink those are intel lig en t attempts to mee t the 

prob lem.

Is the re anyone else who wants to co ntr ibute som ething? I know 

th at is one of the questions th at will be raised here.

Ju dg e W ebster. Th e only th ing I might contr ibu te on th at , Mr. 

Ch airm an , is th at th is problem seems really to be a Fe de ral co urt 

prob lem. I t does n ot seem to present any problems in most of th e S tates 

where endorsement of th e witnesses is req uir ed as a matter of sta tute, 

an d is recommended by the Am erican B ar Associatio n min imu m 

sta nd ard s.

• Air. Den nis. Of course, the sanctions va ry now. In my own St ate 

of Indian a, unless th e rules have chang ed since I hav e been up here , 

which they may have, th ey always said th at you ha d to end orse the 

witnesses on the indictme nt. Bu t the only san ctio n was that i f you did 

no t pu t them on the i ndictme nt and you d id n ot show up fo r t rial, you 

could not get a con tinu ance. So t he re w as not too much incentive. Of 

course, I th in k it is a fa ir th in g to do my self in gen era l, to let t hem 

know who is going to testif y. B ut I do see the pro blem .

Counsel suggested a general philosoph ical question here which I do 

not know rea lly if any bod y can resolve. But it comes to this . Some of 

these rules, as we hav e alr eady noticed , raise possible constitu tional 

problems. A nd, o f course, they are rules promu lgate d by and a pprov ed 

by th e Supreme C ourt, which is t he ultimate au thor ity on wh at is c onsti tutio nal. So wh at is th e situatio n if we challeng e on constitu tional 

gro unds a rul e which the court has alr eady, by implication, at least, 

throug h its prom ulg ati on suggested is constitu tional ? Is there any 

inh ere nt problem in th at ? That is probably one of thes e law school 

ty pe questions, bu t it is an inter estin g question.

Pro fes sor Remington. I think not, Mr. Ch airma n. However wise 

the rule ma ker may be, one can never foresee the exact con tex t in w hich 

a pa rticul ar rule ma v raise a serious constituti onal question. I do not 

th in k the cou rt wou ld feel bound merely because it pro mu lga tes the 

rules, lieeause One cannot, foresee the circum stance s in which the consti tutio na l issue m ay arise in a pa rti cu la r case.

Mr. Den nis. I th an k you. Pro fessor.

Counsel says he has more questions about rule 16.

Air. Blommer. The question is not exactly on how the rule will 

work. It seems t o me in (a)( 1 )( C ) there have l>een s ignific ant ch anges 

in the burde n on the de fend an t as fa r as making a showin g to see 

wh at is in the Go vernm ent’s files. Instea d of ha ving to demo nstrate 

to the court t ha t his req uest was m ate rial and reasonable, as I r ead the 

rule, t he Government is un de r a du tv to h ono r a request by the de fend ­

an t for an vthing that is m ate ria l. The rule says, the things which are 

“m aterial.” AIv question is, and let me pre fac e it by sayin g th at it 

seems to me th at any defe nse counsel wou ld th in k th at an ything in 

the G overnm ent file would be ma ter ial , and would requ est every thing. 

I f the Gov ernment refu ses the de fend an t’s request it seems to me th at 

pu rsua nt to (d )( 2 ) the y would have to litigate. Now, wo uld n’t this 

not only cause pr etria l litiga tio n, but in effect forc e them to arg ue 

the issue—tha t is, the Government mu st describe ev ery thing in its 

file, th at it is refusin g to tu rn over. Ho w can a jud ge refuse to order 

the Governme nt to tu rn over som ething to the defense on a find ing 

th at is not m ate ria l ? I do not see how t hat bu rden could be made either.
35

Pr ofessor Remington. M r. Ch air man, if the reference is to (a) (1) 

(C ), it relate s to docume nts and tan gible objects, which I think to 

some exten t lim its the que stio n, th at is, it does not spe ak to any evi ­

dence, but only docume nts or tan gible objects. I t is true th at the 

question is one of materialit y, mate ria l to the pr ep ar atio n of his 

defense, or intended fo r use by th e Government as evidence in chief 

at the tria l, or was obtained fro m or belonged to the defen dant.

B ra dy v. M ar yla nd prob ably requires disc losu re as a m atter of 

constituti onal law if it is material to t he defense. I do not know’ how 

any pro sec uto r c ould a void disc losure and resist the clai m th at it w as 

a vio lati on of Br ad y v. Ma ryl an d. It seems to me be tte r to hav e the 

rule spe ak to the issue th an it is to leave it to subsequ ent litigation. 

Most defe nse counsel will mak e a B ra dy v. M ar yl an d m otio n any way 

to ask d isclosure of any evidence which may be exculpa tory. I do not 

know wh ethe r “m ater ia lit y” and “exculp ato ry” are synonymous in 

th is conte xt, bu t I th in k they are.

Ju dg e Webster. If I may ad d to tha t, as Pr ofessor Remington h as 

po inted ou t, it only deals with two ty pes of evidence, the ta ng ible evidence th at is go ing to be used— whi ch c ert ain ly de fen dants hav e a ri gh t 

to see—an d the fav ora ble evidence. Now, th e pra cti ce in most of the 

di strict court s which tr ia l jud ges hav e sou ght to avo id by mea ns of 

the omnibus he aring is a routi ne motion fo r discovery un de r the 

prese nt rule 16 which then comes befo re the court. I n a very sig nificant 

numb er of distr icts the tria l jud ges are routi nely ov errulin g the motio ns wi thou t pre jud ice pend ing a conference wi th t he U .S. attorney, 

af te r which tim e the pa rti es can come back if the y are still havin g 

difficulty. Now, wh at w’e hav e done here sim ply is to say, th at is not 

necessary . Th e rule s say to th e Gover nment , w’hen th e de fend an t requests to see the evidence you are go ing to use ag ains t him , you will 

show’ it to him unless you ha ve a good rea son fo r not doing so, in w hich 

case the n you can come back t o the court. T his is court-tim e-cons erving 

wi tho ut a ny pre jud ice at al l to the U.S . attorne y.

If the re is som eth ing t hat he does no t feel he has to show, th e rules 

provide an op po rtu nity fo r him fir st to seek court relief, ins tea d of 

requ iri ng t he defen dant to mak e a court sho win g in each inst ance. It 

saves the co urt time . I th in k the overw helming majority of distric t 

courts are pe rm itt in g such discov ery fol low ing vario us he aring pr ocedures. They may deal with it in te rm s o f o ve rru lin g the motion , they 

may let the m otio n lie the re. B ut they have been r equir ed to sit in c ourt 

and listen to defe nse counsel subm it motion s fo r disc overy, and this 

rule sim ply s ays to the Government, do wha t you know you are goi ng 

to have to do anyw’ay. I f you th in k there is some reason why you 

sho uld not, come to see me about it. T hat sho uld save a lot of cou rt 

time.

Mr. Blommer. In effect, I guess you are say ing here th at in the 

case of this class of evidence the Go vernm ent sho uld t ur n over every ­

th in g it has to the de fend an t as a m at te r of good practic e.

Ju dg e W ebster. Yes, indeed .

Mr. Blommer. Tha nk you.

Ju dg e Webster. W ell, in th is class, unless there is some special exception which I can not ill us trate ri ght now’—in a ve ry few instances 

the y can go to the cou rt f or relief.

Mr. Blommer. Th an k you.
36

Judge Lumbard. 16(e) (2) specifically provides, with respect to information not subject to disclosure, generally speaking the Government’s work product.

Mr. Blommer. Judge Lumbard, could I ask you a question about 

tha t ? It seems to me that the existing rule, talking about the internal 

Government memorandum, excepts this class of tests and medical examinations and tha t type of thing from the notion th at internal Government memoranda are not discoverable. But yet, in proposed rule 

in (a) (2) the exception is expanded from what I think is stated in 

the existing rule as (a) (2) to paragraphs A, B, and D. In other words, 

it talks about general statements by defendant. Now, the note says 

tha t it does not intend to get to the law on internal Government memoranda which m ight contain the substance of a defendant’s statement. 

Yet, this change in the exception seems to be lying within the rule. 

Do you follow me on that?

Judge L umbard. Yes. This would have to be subject to a court ruling in a particular case if there is some doubt about whether or not 

information in the Government files should be disclosed.

Mr. Blommer. My question is, “W hy did the advisory committee 

change the exception if it did not intend to change the law?

Professor Remington. Mr. Chairman, tha t is a fai r question. If I 

were to answer it adequately it would take some time. I will be glad to 

check our files and see if I can respond adequately in writing.

Mr. Blommer. Thank you.

Mr. Dennis. I have one question on rule 12. W hat is the rationale 

for providing th at a ruling on p retrial motions may be deferred afte r 

the verdict? There is a change, as I understand it, in the rule. And it 

strikes me that the unusual thin g to do in such a case is to make a 

motion to suppress evidence. For instance, Why would you want to 

defer a ruling on tha t until after the verdict? What is the reason for 

the change? The present rule says you can defer it until the termination of the trial of tho general issue ra ther than ahead of time, but 

this goes a little further. That is rule 12(e), I think.

Professor Remington. Mr. Chairman, again that is a fa ir question. 

With your permission, I would like to look carefully at the background 

and will be happy to prepare an answer for you.

Mr. Dennis. By all means. I just happened to see it as I went 

through and wondered about it.

Gentlemen, we thank you very much. If there is anything any one of 

you wants to say before we pass on to the next group of witnesses, I 

would be very happy to entertain it.

Judge Webster. Mr. Chairman, I hesitate to encroach upon your 

time. I believe you asked one question relating to presentencing reports 

as it dealt with plea bargaining. We have received a few comments in 

this area which are published in the House document of commentary 

with respect to disclosure of presentence investigations. And it might 

be approp riate for us to comment briefly upon our thinking and our 

answers to the concerns tha t were expressed by some of the judges.

Mr. Dennis. Please do so.

Judge Webster. First, I am sure tha t the chairmen and the members of the committee are aware that a trial is a search for truth. While 

it is an adversary system, it ought to be a system th at the defendant 

understands to be working, and he ought to be aware of every aspect
37

of the t rial . Th e pra ctice of havin g the rig ht of c onfro nta tion of witnesses and the ri ght to disprov e evidence, an d so forth, works effectively 

up un til the motion fo r conv iction. An d the n comes the tim e fo r sentence. Th e de fend an t sees the jud ge wi th a sheaf of pape rs th at say 

things about him th at he is not allow ed to see an d his a tto rney is not 

allowed to see. T his is sub vers ive of confidence in the system of ju stice 

as a m atter of princ iple. Th e co mmittee felt t hat we shou ld legitim atize 

wha t many jud ges are doing t hrou gh ou t the country , and th at is, required th at the p rese ntence r ep ort be m ade a vailable to the d efe ndant 

or his attorney unle ss there are good an d sufficient reasons for not 

doing so.

» Th e ap pe lla te courts are full of cases tod ay, as I ind icated earlier,

where the defend an t is claiming th at his sentence was enhanced because of a r ecord of conviction which was itse lf inv alid because i t was 

uncounseled or fo r some other reason, or where the inform ati on was 

r

ina ccura te or u ntrue, bu t t hat he did no t h ave an o pp ortunity to refute

it at the tim e of sentence. On appeal we have been able in some instances to affirm the tr ia l judge because the inform ation was clearly 

hears ay—for instance, it is r eport ed th at he is eng aged in oth er offenses 

an d the tr ia l jud ge would sure ly know th is as hearsay. Bu t the pr esentence r ep orts are not always couched in ter ms of rum ors. They are

usually made as stat em ents of fact.

An d so, follow ing the recommen dations of th e Am erican B ar As ­

sociation, we de cide d t hat it was n ot eno ugh m erely to pe rm it the t rial 

jud ge to disclose the con tents of the sentence rep ort, bu t ins tea d he 

sho uld be req uired to do so, e xcluding from t hat disclosure such i nf or ­

ma tion as dia gnost ic mate ria l and othe r inform ation whi ch migh t 

actua lly ha rm the defend an t if he ha d access to it. Th ere is an area 

of d iscretion h ere o n the par t of the tr ia l jud ge. T he o nly lim it on his 

discre tion is set fo rth in th is rule, an d I th in k this answers a good 

dea l of concern a bout c onf ide ntiality a nd so fo rth . If he does n ot choose 

fo r his own reasons to disclose t he prese nten ce re po rt to the defen dant 

or attorney, he mu st set fo rth on the record in summ ary form, o ral ly 

or in wr iting , the fac ts con tain ed in the rep ort upo n which he relied 

in assessing the sentence. We th in k th at is minim um fa ir play for 

the defe ndant.

An d then th e de fend an t cannot later claim that his pu nis hm ent w as 

enh anced by othe r fac tor s. Wh ere the judge s aid, “Here , you have g ot

* a record of two felony convictions fo r this, you hav e been in tro uble 

before this, and th is is a serious offense, in rel ati on to some oth er conduct, a nd I t hi nk I am going to have to tak e tho se things into con sideration”—at least a t the tim e of allo cution o r s ent enc ing th e rule gives

* th e de fend an t an o pp or tunity to meet th ose things if t hey are in fac t 

no t tru e or if the re is a n answer to them . An d I th in k very sim ply it 

is not a leg itimate c om pla int t hat thi s requires divu lging confidential 

infor ma tio n.

As soon as t hi s rule was sub mitted to the bench and ba r, as a distr ict 

judge I s tarted r ou tin ely m aking th e inform ation available. I had the 

whole hea rted coo peratio n of the chief prob ati on officer. II said, this 

will clean it up, we will not be ge tti ng a lot o f garba ge p ut in the repo rts now, I am glad to ha ve i t come this way.

I sent the defe nse attorney to the probati on officer. I did no t give 

him the rep ort. He went to the pro batio n officer, and if there were
38

any problem s with the rep ort, then the probati on officer came to me 

and I mad e a jud gm ent as to wh eth er to release the repo rt or to do 

as thi s rule pro vides, set fo rth on t he record a sum ma ry of those only 

which I relied upon .

And it worked beautifull y. I am abs olutely co nvin ced th at this rul e 

will go a long way tow ard satis fying th e man in prison th at he was 

not somehow snoo kered at the very end of his tr ia l in the sentencing 

process.

Th an k you, M r. Chairma n.

Mr. Den nis. I th an k you. Ju dg e Webster, fo r th at contr ibu tion, 

which I think was worth m aking.

Ju dg e Lu mba rd, did you have som eth ing you wanted to add? «

Ju dg e Lumbard. I have nothing to a dd. Tha nk you, Mr. Ch airma n.

Mr. Den nis. Judg e T homsen.

Ju dg e T homsen. ATay I say we have done the same th ing in the 

Distri ct of M arylan d fo r 15 yea rs wi thou t any difficulty, wh at Ju dg e 1

Webster said.

Mr. Den nis. Gentle men, on be ha lf of th e com mittee, I th an k you 

for you r appeara nce here this mo rning. An d I wa nt to rem ind you 

th at th e chair ma n said he would like you to r etur n. So we will reco nvene in the n eighbo rhood of 1 o’clock. I sug ges t you gentlem en might 

ret urn at ap prox im ate ly th at time.

Tn the mea ntim e, tha nk you very much.

The next gro up f rom whom we will he ar repres ents the D ep artm en t 

of Justice. I believe th at Mr. W. Vincent Ra kestraw , assis tan t at to rney general fo r Le gis lat ive Affairs, is here.

You mi ght, if you will. Mr. Rakestraw , introd uce and name your 

colleagues so th at we will have th at fo r the record.

TESTIMONY OF W. VINCENT RAKESTRAW, ASSISTANT ATTORNEY

GENERAL, LEGISLATIVE AFFAIRS, U.S. DEPARTMENT OF JUSTICE, ACCOMPANIED BY H. M. RAY, U.S. ATTORNEY, NORTHERN

DISTRICT OF MISSISSIPPI; RICHARD L. THORNBURGH, U.S. ATTORNEY, WESTERN DISTRICT OF PENNSYLVANIA; HENRY F.

GREENE, EXECUTIVE ASSISTANT U.S. ATTORNEY, DISTRICT OF

COLUMBIA: AND MICHAEL W. DOLAN, ATTORNEY, DEPARTMENT

OF JUSTICE

Mr. R akestraw. Tha nk you, Mr. Ch airma n.

If I may hav e ju st a few min utes , I will introd uce my colle agues 

here at the table, and also e xplain how we h ave dra wn the consensus 

of the De pa rtm en t toge ther fo r the subcommittee. *

T have a prep ared statem ent . I would like to sub mit it to preserve 

the tim e of the subcom mittee and sum marize fo r you.

Mr. Den nis. Yo ur prepared sta tem ent will be admi tte d and mad e 

a p art of the record.

Mr. R akestraw. T ha nk you.

At the fa r righ t of the table is Mr. Michael W. Dolan, legisla tive 

counsel, the Office of L egi slative Affairs . Mr. Dol an is c harge d wi th—

1 mi gh t say before T finish Mr. Do lan’s int rodu cti on th at mv office, 

the Office o f Legislative Affairs, is charg ed with the coord ina tion of 

the De pa rtm ent's position on the Fe de ral rule s, and also to br in g the
39

1 )epa rtm en t’s consensus to th e subco mm ittee in its most workable form. 

To do t hat we h ave not only wor ked with t he v arious div isio ns in the 

De pa rtm ent, bu t also the U.S . att orne ys an d othe r collater al burea us 

and agencies. Mr. Dolan is the focal po int and co ord ina tor fo r the 

Office of L egislative Affairs, co ordina tin g t he wo rk of the in terd ep ar tme nta l tas k forc e on the Fe de ral rules. Th is task force i ncludes rep resenta tiv es of the Crimina l Div isio n, the A nt itru st Div isio n, th e Civil 

Righ ts Div ision, and other par ts o f the Ju stice De partm ent.

To my immediate r ight is Mr. Hen ry F . Greene, who is the e xecutive 

assis tan t to th e U.S. att orney fo r the Distric t of Columbia. He 

ap pe ars here toda y rep resenting th e XT.S. attorney, Mr. Sil bert.

To my imm ediate left is Mr. II . M. Ray, U.S . attorney fo r the 

no rth ern distr ict of M ississip pi. Mr. Ra y chair s the Sub com mittee on 

Le gis lation and Co urt Rules. Th is subcommittee is a part o f the U.S. 

attorney advis ory council th at Atto rney Gener al Sax be has been emph asizi ng since confirmed as A tto rney Ge neral.

To mv fa r le ft is Mr. Rich ard L. Th ornb urgh , the U.S . att orne y for 

the w estern district of Pennsylva nia .

A ft er my sum ma ry—and I believe th at counsel h as the b iog rap hic al 

sketches of all thes e ge ntle men—af te r my su mm ary what we have done 

is sp lit up the rules th at we wa nt to emp hasize. Mr. Tho rn be rg will 

spe ak to rule 16 and a sma ll par t of rule 15. Mr. Ra y will spe ak to 

rules 4 and 11. And Mr. Gre ene will spe ak to rule 12, rule 12.1, and 

rule 12.2.

Before gettin g into my sum ma ry, we have some ex hib its th at I wou ld 

like to sub mit to the subc omm ittee , and espe cially to counsel.

Fi rs t, to be tte r expla in wh at we hav e done with the Sub com mittee 

on Le gis lation and Co urt Rules, I hav e an out line of th e At torney 

Ge neral ’s dir ective to the subcom mittee as par t of the U.S . atto rn ey ’s 

adv isory council.

Second, T have a com pilatio n th at pu lls toge ther the recommenda ­

tion s and observa tions of 89 U .S. att orneys, 89 out o f 94 d ist ric ts. Mr. 

Dolan will appro ach the ch air with th at , as well as a notebook of 

pic tur es and a tap e rec ord ing th at bear on rule 16, the disclosu re rule.

An d wi thou t taki ng any more time, I would like to now get into 

my sum mary.

Mr. Den ni s. Le t the record show th at the several doc uments referred to by Mr. Ra kestraw and pre sen ted to counsel will be made a 

pa rt of the record and included in the record o f these proceedings.

Go a hea d, M r. Rakes traw.

Mr. Rakestraw. A lso, I might add at the outset is th at our desire 

is to coo perate com pletely with th e subcomm ittee. An d if you deem 

it possible. Mr. Ch air ma n, would you leave the record open fo r subsequent opinio ns and exhib its to come before the subcom mittee?

Mr. Den nis. I believe th at is a n ap prop riate, a reason able l ength of 

time. I, of course, will advise the gentlem an th at I am only a tempo rary chair ma n here. I th in k the chair ma n of the subcom mittee 

wou ld have to rule u ltima tel y on how long the record will r em ain open. 

Bu t we w ill leave it open at this tim e.

Air. R akestraw. We will con tinu e to work with counsel as fa r as 

an vt hi ng yo u might need.

Now I will sum marize the prep ared tex t. Mr. Ch air man. An d then 

move on into specific disc ussion o f th e ru les.
40

Mr. Dennis. You handle the matter as you wish. You may proceed.

Mr. R akestraw. Mr. Chairman, Mr. Hutchison and Mr. Blommer, 

on .Tune 17 Attorney General Saxbe wrote to this subcommittee asking 

that Congress delay the effective date of the proposed amendments to 

the Federal Rules of Criminal Procedure until August 1975. The Attorney General noted th at although the Department of Justice had the 

opportunity to comment on the preliminary drafts disseminated by 

the Judicial Conference, the final drafts submitted to the Congress, 

which were changed in some material respects, did not receive a review 

and consideration by this Department. According to this committee's 

report on H.R. 15461, this request as well as complaints from both 

bench and bar caused the Congress to enact, and the President to *

approve, Public Law 93-361, which postponed the effective date of 

the proposed amendments until August 1,1975.

On behalf of the Department of Justice, I would like to thank th is 

subcommittee and its chairman for recognizing the advisability of 

delaying the effective date of the new rules so th at both the bench and 

tho bar as well as the Congress can take the necessary time to study 

these proposals. I am confident that afte r f urther reflection and study, 

and after considering the views of this Department, as well as the 

views of others, this committee will insure that any amendments to the 

existing Federal Rules of Criminal Procedure will be in the interests 

‘of the entire criminal justice system.

The Attorney General's Juno 17 letter cited two significant objections t hat tho Department had with respect to the proposed amendments. First, the amendment to rule 1(5 which would require the disclosure of the names and addresses of potential Government witnesses 

presents a grave threat to the safety of such witnesses. Second, the 

amended rules 4 and 9 would have a devastating effect on Federal law 

enforcement efforts by denying the Government the use of an arrest 

warrant except upon a showing of a “valid reason.”

While rules 4, 9, and 16 continue to be the basis for the Department’s 

objection to implementation of the amended rules, we would like to 

take the opportunity presented by these hearings to present to this 

subcommittee our views on several other amendments which we believe can be improved. I should like to emphasize th at our comments 

should not be construed as criticism of the able work done by the Advisory Committee on Criminal Rules. This group has labored long and 

hard to devise amendments to the Federal Rules of Criminal Procedure which they believe are in the best interests of the criminal justice 

system. We trust that the advisory committee understands that only 

the most serious of objections would have forced the Department to 

approach this subcommittee. 4

This concludes my summary.

[Mr. Rakestraw’s full statement and supporting materials follo w:]

[Note.—The notebooks of pictures and the tape recording referred 

to by Mr. Rakestraw are on file with the subcommittee.]

Statement of W. Vincent Rakestraw, Assista nt Attorney General, Office

of Legislative Affairs

Mr. Chairman and Meml>ers of the Subcommittee : On June 17th Attorney General Saxl»e wrote to this Subcommittee asking th at Congress delay the effective 

date of the proposed amendm ents to the Federal Rules of Criminal Procedure 

until August 1975. The Attorney General noted th at although the Departm ent of
41

Jus tice had the opportunity to comment on the preliminary draft s disseminated 

by the Judicia l Conference, the final drafts subm itted to the Congress, which 

were changed in some m aterial respects, did not receive a review and consideration by tiiis Depa rtment. According to thi s Committee’s report on H.R. 15401, 

this request as well as complaints from both bench and bar caused the Congress 

to enact, and the Presiden t to approve, Public Law 93-361 which postponed the 

effective date of the proposed amendm ents until August 1, 1975.

On behalf of the Departm ent of Justice , I w'ould like to thank this Subcommittee and its Chairman for recognizing the advisability of delaying the effective 

date of the new Rules so th at both the bench and the bar as well as the Congress 

can take the necessary time to study these proposals. I am confident th at after 

fu rth er reflection and study, and after considering the views of this Department, 

as well as the views of others, this Committee w ill insure tliat any amendments 

to the existing Federal Rules of Criminal Proc edure will be in the intere sts of 

the en tire criminal justice system.

The Attorney Gene ral’s Jun e 17th lette r cited two significant objections that 

tl»e Department had with respect to the proposed amendments. First, the amendment to Rule 16 which would require the disclosure of the names and addresses 

of potential government witnesses presents a grave threat to the safety of such 

witnesses. Second, the amended Rules 4 and 9 would have a dev astatin g effect 

on Federal law enforcement efforts by denying the government the use of an 

arrest w arrant except upon a showing of a “valid reason.”

While Rules 4. 9, and 16 continue to be the basis for the Dep artm ent’s objection to implementation of the amended Rules, we would like to tak e the opportunity presented by these hearin gs to present to thi s Subcommittee our views 

on seve ral other amendments which we believe can be improved. I should like 

to emphasize th at our comments should not be construed as criticism of the 

able w’ork done by the Advisory Committee on Criminal Rules. This group has 

labored long and hard to devise amendments to the Federal Rules of Criminal 

Procedure which they believe are in the best intere sts of the criminal justice system. We trus t th at the Advisory Committee und erstands th at only the most 

serious of objections would have forced the Departm ent to approach this 

Subcommittee.

RUL E 4. ARREST WARRANT OR SUMM ON S UPON COMPL AINT

The Proposal.—This amendment would make the summons the routine pre ­

ferred process even though probable cause exists to arrest a defendant, and 

would preclude the issuance of an ar re st wa rra nt except where a defe ndant 

fails to app ear in response to a summons, a “valid reason” is shown for the issuance of an arrest wa rra nt rather than a summons, or a summons having issued, 

a “valid reason” is subsequently shown for the issuance of an ar re st w arrant. A 

new subdivision (c) in R ule 4 would provide tha t a finding of probable cause may 

be based upon hearsay evidence in whole or in part and that th e magistrate may 

require the exam ination under oath of the complainant and any witness he may 

produce.

Effect of the Proposal.-—By making the summons the routine pre ferred process, 

the amended Rule 4 would have a devasta ting effect on Federal law enforcement 

efforts as well as the crim inal justice system by (1) resu lting in substan tially 

increased fugitivity among defendants charged with serious Federal crimes, 

(2) fostering the fabrica tion of alibis and the secreting and destruction of evidence by defe ndants prior to apprehension, (3) generating the increased usage 

of warrantless arrests as a countermeasure to preserve evidence, and (4) leading to sub stantial additional delays in the adm inistratio n of criminal justice, 

both from offense to apprehension and from apprehension to tria l.

1. Fugitivity ^—The avoidence of appreh ension and tri al by Federal criminal 

suspects is alre ady a serious problem in many Federal jurisdictions. For example, sta tistic s of the United States District Court for the Dis trict of Columbia reveal th at for the past few years approximately 20 to 25 percent of defendan ts in pending criminal cases were fugitives. Substitution of a summons 

for an arre st would simply place an accused on notice th at he is involved in a 

crim inal case and afford him an opportunity to flee prior to apprehension.

2. Fabrication of Alibis and Destruction and Secreting of Evidence.—By 

alertin g crim inal defendants to the fac t th at charges are to be placed against 

them for particu lar crimes, suspects would be afforded easy opportunities to 

con struct alibis and to secret and destroy evidence of the ir offenses prior to 

reporting in response to a summons. As one United States Attorney has noted,
42

“It is a fac t of life t hat crim inals quite often carry the fru its or instrumentalities 

of crime iq»on their person or within reaching range such as a felon with a gun or a pusher with narcotics. Searches incident to arrest are valid. Now, by 

summons, we shall be advising all to rid themselves of incriminating evidence 

prior to arrest. ”

3. Resort to Increased Usage of Warrantless Arre sts.— In most cases, Federal 

law’ enforcement agents have a statutory right to ar re st without wa rra nt upon probable cause, and a search incident to such an arre st is lawful. It would not 

be at all unrea sonable to exjtect these agents, prompted by the burdens imposed by this ride, to incre ase the ir use of warrantless arrests.

//. Delay.—The additional time required to locate d efenda nt’s addresses, serve 

summonses upon them, await their appearance in court on the designated dates, 

and ultim ately obtain the issuance and execution of arrest wa rra nts in the commonplace instances of nonapi>earanees will certainly foster delays between 

the commission of the offenses and the apprehen sion of the suspects. Delay <

would occur between apprehension and trial as a result of the pretrail litigation 

th at would inevitably result over the issue of whether magistrates had “valid reason” to order arre st of defendants. Additional delays in the crim inal justice 

system are particularly difficult to justify at this time in the face of urgent efforts that have been mandated by both the Congress and the Supreme Court t

under Rule 50 of the Federal Rules of Criminal Proc edure to dispose of criminal 

cases in a n effective an d expedited fashion. This amendment was not included in eith er the Jan uary, 1970, or the April,

1971, preliminary draft s of proposed amendments to the Federal Rules and 

thu s neither the Advisory Committee nor the Supreme Court received the assistance of the comments and criticisms of the bench or bar . Indeed, the Advisory Committee note to the proposed amendment of R ule 4 ref ers only to the proposed 

amendment to Rule 9 to suggest the reasons for the change, and the Advisory Committee note to Rule 9, in turn, cites only a n arti cle by Judge Marvin Fra nkel 

of the United States Distric t Court for the Southern District of New York in suppo rt of the change. His article, however, Is devoted not to Rule 4 at all, 

but exclusively to a crit ical analysis of Rule 9 and its requirement th at arrest 

wa rra nts issue automatically for indicted defend ants upon the demand of 

the United States Attorney. See Frankel, “Bench W arrants Upon the Pr osecuto r’s 

Demand: A View from the Bench,” 71 Col. L. Rev. 403 (1971). Poin ting up the dea rth of authority in supp ort of his novel proposal, Judge Frankel, with typical 

candor, acknowledged th at 11 of his 13 brethren on the Southern Distric t 

Bench, as well as all citable commentators, disagreed w ith his view. See Frankel, 

supra, p. 403, n.l and p. 410, n.25. In addition to the sub stantial difficulties which the proposed amendment 

to Rule 4 would portend for law enforcement and the lack of autho rity in supp ort of the changes, the proposed amendment itself is vague, subject to varying interp retation, and—as Judge Frank el also acknowledged—likely to 

res ult in a whole new panoply of adversary proceedings, ostensibly at both the 

tria l and appe llate levels, to tes t judicial or magisteri al dete rmination s th at the government demonstrated a sufficiently “valid reason” for the issuance of an 

arrest wa rra nt rather tha n a summons. See Frankel, supra, p. 414, n.40. Most 

imp ortantly in this regard, there is no definition of “valid reason” in eith er 

the Rule or the Advisory Committee note, and only a brief discussion of the *

problem in Judge Fra nkel’s article. Indeed, the “valid reason” requirement 

does more tha n provide the ju dicial officer with d isc ret ion ; it imposes a presumption in favor of a summons which must be overcome by a government showing 

of a “valid reason”. The Departm ent also objects to the provisions of amended subdivision (c) *

which would authorize the magistrate to require the exam ination under oath of 

the complainant and any witness the complainant may produce. If the m agistrate 

is not satisfied with the complaint and any accompanying affidavits, his remedy 

is to deny the application rather than to assum e control of the investiga tion by 

calling w itnesses for examination under oath.

Recommendation.—Fo r the reasons sta ted above, Rule 4 should not be 

amended. If, however, the Congress is bent upon giving prio rity to the issuance of a 

summons rather th an a w arr ant, then at least the amendments should be changed 

to allow the atto rney for th e government to obtain a warrant when he believes a 

wa rra nt is necessary. If the amended Rule is retained, the Department of Jus tice 

recommends that it be modified by adding a new subdivision (d ), renum bering
43

the subdivisions of the Rule accordingly, and amending subdivisions (b) and (c) 

to read as follow s:

(b) Issuance of an Arrest Warrant.—A wa rra nt sliall issue whenever:

(1) a defe ndant fails to appea r in response to a summons, or

(2) upon the request of th e a ttorney for the government.

(c) Multiple Warrants or Summons.—More tha n one wa rra nt or summons 

may issue on the same complaint or for the same defen dant.

(d) Probable Cause.—Tlie finding of probable cause may be based upon hearsay evidence in whole or in p art.

Finally, if the Committee insists on requiring the atto rney for the government 

to present a “valid reaso n” for an a rre st warrant in lieu of a summons, then the 

Rule should be further amended as follows to make clea r the issuance of a wa rra nt in lieu of a summons which is subsequently found to be without a "valid 

reason” is not grounds for suppression of evidence seized incident to the arr est :

"A determination by a court after an arrest that no valid reason existed for 

an arr est in lieu of a summons shall not be grounds for the suppression of evidence seized incident to the arrest , or to a search incid ent thereto.”

RULE 0. WARRANT OR SUMM ON S UPON INDIC TM EN T OR INFO RMA TION

The Proposal.—This amendment would make the summons the routine preferred process on an indictment or information except when the government 

presents a “valid reason” for issuance of an arre st w arr ant.

Effect of the Proposal.—The amended Rule 9 would have the similarly adverse 

effect upon the crim inal justice system as would the amended Rule 4. The problems of increased fugitivity, destruction of evidence, increased use of warrantless arrests, and sub stantial delay are described in our discussion of Rule 4. It 

should be i>ointed out th at with respect to indictme nts and informations, United 

States Attorneys often use summons and mail notices to conserve the time of 

United States Marshals and employ wa rra nts only when necessary.

Recommendation.—For the reasons stated above and descril>ed in our discussion of Rule 4, Rule 9 should not be amended. If the summons is to lie the 

preferred form of process then, at the very least, the attorney for the government should be allowed to request the issuance of a warrant when he considers 

such to be necessary.

Accordingly, the Departm ent of Justice recommends th at subdivision (a) of 

proposed Rule 9 be amended to read as follows :

(a ) Issuance

(1) Summons.—Upon the filing of an information or indictment the clerk 

shall issue a summons for each named defendant, except as provided in subdivision (a )( 2).

(2) Warrant.— Upon request of the attorney for the government, the court 

sha ll issue a warrant instead of a summons for each defe ndant named in tlie 

indictme nt or inform ation, if the information is supported by oath.

(3) Multiple Warran ts or Sum mon s; Failure to Appear.—The clerk shall 

deliver the warrant or summons to the marshal or other person authorize d by 

law to execute or serve it. More than one warrant or summons may be issued 

on the same information and indictment or for the same defendant. If a defendan t 

fails to appear in response to the summons, a w arrant shall issue.

RULE 11 . PLEAS

The Proposal.—Tlie amendments to Rule 11 a ttemp t for the first time to e stab ­

lish specific criteria for the acceptance of a plea of guilty, set forth specific 

conditions regulating plea bargaining, and stipulate full disclosure of plea 

agreements.

Effect of the Proposal.—While the Departm ent of Jus tice is pleased th at the 

amended Rules recognize the plea bargain procedure, we oppose those provisions 

of the amended Rule 11 which (1) could be construed as permitting the court 

to reje ct a plea agreement based upon a dismissal of oth er charges, (2) would 

require, withou t exception, disclosure of the agreement in open court, and

(3) could be construed as precluding admissibility in all circum stances of s tatements made in the negotiation process.

1. R ejection of Plea.—The amended rule could be construed as sanctioning an 

unwarranted infrin gement by the judiciary on the powers of the executive. The 

plea agreement procedures set forth in subdivisions (e) (2), (3) and (4) should
make clear t ha t the court may decline to accept an agreement only on the ground 

that the maximum sentence agreed upon is too harsh or inadeq uate; the court 

should not he perm itted to reje ct an agreement it deems too lenient or too 

restrictive with respect to the dismissal of counts or the reduction in g rade of the 

offense charged. In the sentencing area the cou rt’s p rerogativ es are admittedly 

param ount, hut no rule should he promulgated which intrude s the judgment of 

the court in the executive decision to charg e or to dismiss charges—areas tr aditionally reserved for the exercise of prosecutorial discretion. “ (A )s an incident of the Constitutional separation of powers, . . . the Courts are not to 

inte rfere with the free exercise of the attorneys of the United States in the ir 

control over criminal prosecutions.” United Sta tes v. Cox, 342 F. 2d 167, 171 

(5th Cir. 1965), cert, denied, 381 U.S. 935 (1966), quoted with approval in 

Newm an v. United States, 382 F. 2d 479, 481 (D.C. Cir. 1967) (Burger, J.). 

Complete executive discretion has heretofore been specifically acknowledged by 

the courts, with respect to decisions to accept a plea to a lesser offense from 

one codefendant hut not another, or to prosecute a defendant on a lesser or 

more serious charge. See In re Petition of United Sta tes for Writ of Mandamus,

306 F. 2d 737 (D.C. Cir. 1962) ; Newman v. United States, supra; Hutcherson v. 

United States, 345 F. 2d 964 (D.C. Cir. 1965) ; United States v. Ammidown,

497 F. 2d 615 (D.C. Cir. 1973).

2. Disclosure.—Subdivision (e) (2) requires “disclosure of the agreement in 

open court at the time the plea is offered.” Ord inarily this is acceptable, but 

unless some provision is made to maintain secrecy with respect to a defend ant’s 

agreem ent to testify , inform, or act in an undercover capacity, either his agreement will not be forthcoming or the government will be compelled to decline 

acceptance with the res ult that both the adv anta ge of his services and the plea 

bargain will be lost.

3. Inad missibility.—Subdivision (e) (6) could be construed as providing th at 

state ments made during unsuccessful negotiatio ns as well as the fac t of a plea 

of guilty that was subsequently withdrawn, or the offer of a plea of guilty, would 

l>e the rea fter inadmissible in evidence aga inst the defen dant. Introduction in 

evidence in the government’s case in chief of a withdrawal plea is barred by 

United Sta tes v. Kerehcval, 274 U.S. 220 (1927), and we have no objection to 

barrin g sim ilar use of the fac t of an offer. We do object, however, to the innovation of excluding statements of fact or admissions made by the defe ndant in 

the presence of his counsel, except, of course, when the admissions themselves a re 

tainted, such as when the plea is vacated because of coercion. We are very concerned that the Rule could be misconstrued to preclu de use of such statements 

even for impeachment purposes; certainly the Rule should not be usable as a 

means of self-immunization aga inst a revelation of perjury. See Harris v. New

York, 401 U.S. 222 (1971) ; United States v. Zane, ----- F .2 d------- (2d Cir. No.

73-2401, April 1, 1974, slip op. at 2509-10). While we agree th at conversations 

occurring during ihformal plea discussions should not be admissible in evidence, 

we believe th at statements made by a defe ndant voluntarily and in open court 

during the course of an actual plea, with the advice of counsel, should be admissible, at least to impeach the defe ndant if he subsequently attem pts to withdraw’ 

his plea and take the stan d in his ow’n behalf at tria l. See Harris v. New York,

supra. In any event, the Committee report should clearly reflect that only the 

stateme nts themselves are inadmissible and th at the preclusion does not extend 

to the derivative use of such statements.

Recommendation.—Fo r the reasons set forth herein, and because the Department agrees with Advisory Committee note that an agreement th at a specific 

sentence is the app rop riate disposition of the case is ano ther possible concession 

th at may be made in a plea agreement, we recommend th at subdivisions (e) 

(1) , (2), (3) , (4) and (6) of Rule 11 be amended to read as follows:

(e) Plea Agreement Procedure

(1) In General.—The atto rney for the government and the atto rney for the 

defendan t or the defe ndant when actin g pro se may engage in discussions with 

a view tow’ard reach ing an agreement tha t, upon the entering of a plea of guilty 

or nolo contendere to a charg ed offense or to a lesser or rela ted offense, the 

attorney fo r the government will move fo r dismissal of other charges, or w ill recommend or not oppose the opposition of a particu lar sentence, or will do both, or 

will agree that a specific sentence is the app rop riate disposition of the case. 

The court shall not partic ipate in any such discussions.

(2) Notice of Such Agreem ent.—If a plea agreement has been reached by the 

parties, the court shall requ ire the disclosure of the agreem ent in open court,
45

except for good cause shown, at the time the plea is offered. Thereupon the court 

shall accept the plea unless the parties have been agreed that a specific sentence 

is the appropriate disposition of the case, in which event, the court may accept 

or reject such agreement for a specific sentence, or may defer its decision as to 

acceptance or rejection until there has been an opportunity to consider the p resentence report.

(3) Acceptance of a Pica Agreement for a Specific Sentence aft the Appropriate Disposition of the Case.—If the cou rt accepts a plea agreement for a 

specific sentence, the court shall inform the defe ndant that it will embody in 

the judgment and sentence the disposition provided for in the plea agreem ent.

(4) Reje ction of a Plea Agreem ent for a Specific Sentence as the Appropriate

Disposition of the Case.—If the court reje cts the plea agreem ent for a specific 

sentence, the court shall inform the par ties of this fac t in open court and set 

aside the guilty plea or plea of nolo contendere.

» * * « • * • •

(6) Inadmissibility of Plea Discussions.— Evidence of a plea of guilty, or a 

plea of nolo contendere, later withdrawn, or of an offer to plead guilty or nolo 

contendere to the crime charg ed or any other crime, or of out of court stateme nts 

made in connection with any of the foregoing pleas or offers, is not admissible 

* in any civil proceeding, or in the government’s case in chief in any criminal

proceeding a gainst the person who made the plea or offer. However, a statement 

made by a defe ndant in open court and in the presence of counsel in connection 

with such plea or offer is admissible to impeach the defendan t where his tes timony at the subsequent proceeding varies materially from his stateme nt at the 

time of th e taking of the plea.

The purpose of the Departm ent’s proposed changes to Rule 11 (e)(1) is to 

insure th at the Rule does not alt er existing law which leaves for Executive 

decision to charg e or to dismiss charges. As proixised by the Departm ent the 

Executive would decide, without court intru sion, whether to :

(1) reduce th e cha rge to a lesser or r elated offense;

(2) dismiss other c ha rges; or

(3) make recomm endations (or not oppose recommendation) only. Such recommendations would not be binding on the court, as to what sentence, if any, 

the court would impose. The court would be left fre e to impose sentence without being bound by the recommendations of the parties, and the court could 

eith er increase or lower any punishment or recommendation.

If a specific sentence is agreed to between parties as an app ropriate disposition of the case, then the court w’ould be free to eith er accept or reje ct the 

agreed specific sentence. If accepted, the court would embody the agreed specific 

sentence in its judgm ent. If rejected, the c ourt would set aside the plea of guilty 

or plea of nolo contendere.

Wo oppose the idea th at the court should be involved in changing the term s of 

a plea agreement for a specific sentence by reducing the agreed sentence, or 

being subject, after such an agreement has been entered into, to the furth er 

urging of a defe ndant to lesser punishment tha n the defe ndant has theretofore 

agreed to. By permitting a defendant to urge for a lesser sentence than he has 

agreed to, we feel th at such proceedings would not only be an invitation to

„ subsequent habeas corpus attack through motions to vacate sentence, but would

vitiate the entire th ru st of the amendment to Rule 11 to encourage openness

and good faith betw’een par ties in reach ing binding plea agreements.

RULE 12 . PLEA DING AND MOTIONS BEFORE TR IA L; DEF ENS ES AND OBJE CTIO NS

The Proposa l— Generally, proposed Rule 12 would identify additional motions 

which must be made prior to trial and would provide for opportunity by eith er 

the government or the defense to identify evidence which the government inten ds 

to use at tria l. A new subdivision (c) would change the time for making pretri al motions from “before the plea is entered” to a time set by the court “at the 

time of the arra ign ment or as soon the reafter as prac ticab le.” A new subdivision (d )( 2) would authorize the defendant to request notice of the government’s 

intention to use any evidence discoverable un der amended Rule 16.

Effect of the Proposal.—The Departm ent of .Justice objects to Rule 12 (d )(2) 

on the same grounds discussed in more detail in our comment opposing the 

expanded discovery provisions of Rule 16. Discovery should continue to be a 

ma tter of judicia l discretion, not of right, and we therefore object to the term inology used in the provision, “any evidence to which the defe ndant is entitled 

4 1-6 23— 75------ 4
to discover under Rule 16.” The government often notifies a defe ndant of its 

intention to use certain evidence so as to expedite the filing and determination 

of a motion to su ppres s; the advisory Committee note recognizes this. As drafted, 

however, the proposed rule requires more; it seems to contemplate th at the 

government will give notice of everything it possesses that is discoverable, 

regardless of whether any motion to suppress is anticipated. Government counsel should not liave to do the defense's work. While the proposal involves no 

sanction for failure to meet a defendant’s request we doubt th at this provision 

would serve to expedite motions to suppress as much as it would be invoked as a 

discovery aid.

Subdivision (e) of the Rule indicates th at general author ity is conferred 

on the court to d efer the determination of any pre trial motion until tri al or even 

after verdict. This provision should not be allowed to deprive the government of 

its right to appeal under such statutes as 18 U.S.C. 3731.

Recommendation.— For the foregoing reasons th e D epartmen t of Justice recommends that subdivision (d) (2) be deleted and that subdivision (e) be modified 

to read as follows :

(e) Ruling on motion.—A motion made before trial shall be determined before 

tri al unless the court orders that it be deferred for determination at the tri al of 

the general issue or until after verdict, but no such dete rmination shall be deferred if a party ’s r igh t to appeal is adversely affected. . . .

BULE 1 2 .1 . NO TICE OF A LIB I

The Proposal.—This new Rule would require the defe ndant to notify the government of his intention to rely upon an alibi defense after which the government would be required to provide the defe ndant with the specific time, date and 

place at which the offense is alleged to have been committed. The defe ndant 

would then be required to divulge the claimed location and witnesses supporting 

the alibi after which the government would be required to supply the names 

and addresses of witnesses placing the defe ndant at the scene of the crime.

Effect of the Proposal.—Unlike Rule 2- 5(b) of the United States Dis trict 

Court for the Dis trict of Columbia, Rule 12.1 would permit the defendant, by 

indicating his inten tion to rely on an alibi defense and making certa in disclosures, 

to compel the government to disclose the names and addresses of its witnesses. 

Because the Department of Justice vigorously opposes those provision of proposed Rule 16 which would compel the government to disclose the names and addresses of its witnesses, we reject any alibi notice rule which would permit 

similar discovery a t th e discretion of the defendant.

Recommendation.—The Department of Jus tice recommends the adoption of a 

rule similar to Rule 2- 5(b) of the United States District Court for the District 

of Columbia which is set forth below :

(6 ) Alibi Demand by the Government

(1) Upon writte n demand of the prosecutor stating the time, date, and place 

at which the alleged offense was committed, the defendan t shall serve within 

ten days, or at such different time as the court may direct, upon the prosecutor 

a written notice of his intention to offer a defense of alibi. Such notice by the 

defe ndant shall sta te the specific place or places at which the defe ndant claims 

to have been at the time of the alleged offense and the names and addresses of 

the witnesses upon whom he inten ds to rely to establish such alibi.

(2) Within ten days thereafter, but in no event less than ten days before 

tria l, unless the cou rt otherwise directs, the prosecutor shall serve upon the 

defendant or his atto rney a written notice statin g the names and addresses of 

the witnesses upon whom the government inten ds to rely to establish the defendan t’s presence at the scene of the alleged offense and any other witnesses to be 

relied on to rebut testimony of any of the defe nda nt’s alibi witnesses.

(3) Upon the failur e of either party to comply with the respective requirements of this rule, the court shall, except for good cause shown, exclude the tes timony of any witness offered by such party as to the defe ndant’s absence from, 

or presence at. the scene of the alleged offense. This rule shall not limit the right 

of the defe ndant to testify in his own behalf.

RULE 12 .2 . NOTIC E OF DEF ENSE BASED UPON MENTAL CONDITION

The Proposal.—This new Rule would requ ire the pre tria l disclosure of the 

defe ndant’s intention to rely upon a defense of insanity or a showing lack of
47

required mental state. The court upon the government’s motion would be permitted to order the defe ndant to submit to a psychiatric examination.

Recommendation.—Although the Departm ent of Jus tice strongly favo rs the 

amended Rule, we recommend that the Committee report to subdivision (c) 

indicate th at the Rule is not intended to preclude the court from ordering 

more tha n one psyc hiatric examination.

RULE 15 . DEPOSITIONS

The Proposal.—The amended Rule would auth orize the government as well 

as the defendan t to depose prospective witnesses whenever due to special 

circum stances of the case it is in the intere st of justice. Such depositions may 

be used as substan tive evidence if the witness is unavailab le as defined in subdivision (g) of the Rule or if the witness gives inconsistent testimony at tria l.

* Recommendation.—Although the Department favors the concept of depositions 

by the government we recommend that the language of the proposed Rule conform to the language of IS U.S.C. 3503 to insure th at depositions are take n in 

only the most exceptional circumstances. We also recommend th at such depositions be tak en under the judicial supervision of one knowledgeable in the crim inal

* law. Accordingly, the first sentence of subdivision (a) and the entire subdivision 

(d) should be amended to read as follows:

(a) When Taken.—Whenever due to exceptional circumstances of the case 

it is in the inte rest of justice that the testimony of a prospective witness of a 

party be taken and preserved for use at trial, the cou rt at any time after filing 

of an indictment or information may upon motion of such party and notice 

to the parties order th at testimony of such witness be take n by deposition and 

that any designated book, paper, document, record, recording, or other material 

not privileged, be produced a t the same time and plac e.. . .

* * * * * * *

(d) How Taken.—Subject to such additional conditions as the court shall 

provide, a deposition shall be taken and filed in the manner provided in civil 

actions except as otherwise provided in these rules, provided that

(1) in no event shall a deposition be taken of a party defendan t without his 

consent, (2) the scope and manner of exam ination and cross-examination shall 

be such as would be allowed in the tri al itself, and (3) the deposition may be 

taken before a United States District Judge or United States Magistrate. After 

a witness being deposed by the government has testified on direct examination, 

upon request of the defendan t or his counsel, the government shall produce any 

statement, as defined in 18 U.S.C. 3500, to which the defe ndant would be entitled 

at tria l.

RUL E 1C. DISCOVERY AND INS PECTION

The Proposal.—The proposed amendments to Rule 1G would change existing 

pre tria l discovery procedure in two significant w ays: (1) in addition to other information, the government would be required to disclose to the defe ndant the 

names a nd addresse s of all government witnesses, and (2) much discovery that is 

now within the discretion of the court to permit or deny would become mandatory absent a sufficient showing in opposition.

Effect of the Proposal.—1. Disclosure of ffovernment witnesses.—The Department of Justice cann ot overstate its opposition to the provisions of proposed 

Rule 1G which would require the government to disclose to the defe ndant the 

names and addresses of pote ntial government witnesses. Certainly courts have 

overwhelmingly upheld the government's refusal to m ake such disclosure. See e.g. 

United States v. Condor, 423 F. 2d 904, 910 ( 6th Cir.), cert, denied, 400 U.S. 

958 (1970) : Hemphill v. United States, 392 F. 2d 45, 48 (8th Cir.), cert, denied,

393 U.S. 877 (19G8) ; United States v. Mahaney, 305 F. Supp. 1205, 1209 (N.D. Ill. 

1969) ; United States v. Westmoreland, 41 F.R.D. 419, 427 (S.D. Ind. 1967) ; 

United States v. Coil), 271 F. Supp. 159, 162 (S.D.N.Y. 1967). The consequences 

of such a rule are both dangerous and frighten ing in that government witnesses 

and the ir families will even be more exposed tha n they now are to threats, 

pressures and physical harm.

The language of subdivision (a )( 1 )( E ) represen ts a virtual concession by the 

authors of the rule elevating the importance of a defendant’s opportunity to obtain disclosure of the identity of w itnesses over the need to protect the physical 

safety of such witnesses. Indeed, the juxtapo sition in the same subsection of 

an absolute requirement for disclosure of names and addresses of witnesses on
48

the one hand, and the assurance that the government will have an opportunity 

to depose and preserve the testimony of such witnesses at an early date on the 

other, represents at once an implicit acknowledgement of the likelihood of extrem e physical danger to witnesses th at would emanate from the enactment of 

the rule, and a rema rkable conclusion th at the physical safety of victims of 

crime must assume second priority to the unnecessary expansion of pre trial 

discovery.

As the United States Attorney for the Western District of Pennsylvania has 

obse rved :

“Proposed Rule 16 eliminates any discretion of the cou rt in denying discovery 

which the court presently possesses under Rule 16, and it requires the government 

to supply defe ndant with a list of the names and addresses of all of its witnesses. 

It is as if the proponents of that Rule had never hea rd of the murder of key 

witnesses in organized crime cases with which many of us are regrettably familiar. Or perh aps they have, as reflected in the additional provision th at when a 

defe ndant makes a request for discovery of the names of witnesses, the government is perm itted to perpetua te their testimony under Rule 15 [Depositions]. 

However, a key witness slated for “erasur e” would not likely make it to the deposition, since Rule 15 requires notice to be given to the defe ndant of the name 

and address of the witness, as well as the time and place for taking the deposition.”

Nor is the problem limited to organized crime cases. I n United States v. Estep,

151 F. Supp. 668, 672-673 (N.D. Tex., 1957), the co urt observed :

“Ninety per cent of the convictions had in the trial court for sale and dissemination of n arcotic drugs are linked to the work and the evidence obtained by an 

informer. If that informer is not to have his life protected there won’t be many 

informers hereafter. . . . The court takes judicia l notice of a number of informers that have appeared in this court who have been murdered or foully trea ted.

The Tax Division of the Department of Jus tice has noted that witnesses in 

its 1500 cases a yea r are always subject to either economic or social pressures 

that can be applied to distort the ir tri al testimony, and that the problem would 

be m ater ially increased by the proposed amendment to the Rule. The concern of 

the United States Attorney for the Southern District of New York was expressed 

as follows:

“The narc otic and mafia type of case may be the main problem area here but 

we have many ‘white collar’ eases in which witnesses are intimated and perjury is suborned.

“We do not believe that the provision permitting depositions will really solve 

the problem as to murder and intim idation—particularly the la tte r because the 

defendan ts would have every notice to induce a change in testimony even after 

a deposition was taken. Ju st yesterday a cooperating defe ndant in a number 

of our most important cases was driven to commit suicide by the pressure put 

upon him by a defe ndant who had learned of his cooperation. Changes in tes timony are easier to procure than suicides.

"On two occasions in the las t month we taped ‘white collar’ defe ndants in the 

act of suborning perjury from persons who had already testified before Grand 

Juries.

“The murder of government witnesses is hardly unknown in this District, 

United Sta tes v. Pacelli. 491 F. 2d 1103 (2d Cir. 1974), nor are plots to murder 

them unknown. See United States v. Rosncr, 485 F.2d 1213, 1218 (2d Cir. 1973), 

in which an atto rney and a priv ate investigator engaged in, among other things, 

a plot to m urder George Stewart, a government info rma nt and an imp ortant w itness in United Sta tes v. Bynum, 485 F.2d 490. 493-495 ( 2d Cir. 1973) ; see also 

United Sta tes v. Girillo, 468 F.2d 1233, 1240 ( 2d Cir. 1972). Nor is such activity 

unknown in less imp orta nt cases. We recently had a postal embezzlement case in 

which one of the two defen dants pleaded guilty several months before trial and 

agreed to be a government witness. Early one morning eight days before tria l, 

the co-defendant shot him down on a str eet in Queens. The case had to be 

nolled.

“It seems clear th at we have a hard enough time securing the cooperation of 

civilian witnesses who ‘don’t wan t to get involved’ without puttin g them in a 

situatio n in which, months before trial, they become subject to such depredation 

and harassment as may occur to an ingenious defendant, who will have fa r 

more to gain under the new rules tha n the present post-conviction satisfac tion 

of revenge. Indeed, we are of the view that the law should not, in the name of 

•enlightened' discovery procedures, expose innocent members of the public, who
49

have had the misfortune to he victims of or witnesses to criminal conduct, to the 

mercy of de fendants any more t han the confrontation clause presently requires.” 

Another United States Attorney, from Minnesota, argued :

“It is not fair to the citizen witness to place him in such jeopa rdy as disclosure 

of his identity will accomplish. In the are as of drug societies, organized crime, 

ghetto crime, prostitution rings, and, even sometimes in certain neighborhoods, 

respect for the criminal outweighs that for those who cooperate with the law. 

This will double the burden.

“It is tough enough to get witnesses in our society. Any prosec utor will tell you 

how difficult it is to get people to become involved. Even if they are the victims, 

people will not come to the police (as evidenced by a crime rat e which far exceeds reported crimes).”

The comments of other government atto rneys concerning the amendment are 

similar, calling the proposed amendment “dangerous” and “frigh tenin g,” an 

invitation to “bribery and obstruction of justice ” and to “hara ssment, intim idation, or elimination of government witnesses,” and an inducement to perjury 

and the “manufac turing of defenses.” As summarized by a United States Attorney from the Southwest, the proposed amendment would create “substantial 

problems of obstruction of justice, tampering, intim idating and even assassinating of government witnesses,” thereby furth er exac erbating “the ever-growing 

problem of ‘no one wanting to become involved.’ ”

The situatio n is aggravated by the cur ren t provisions of the Bail Reform Act 

under which dangerous defe ndants are se t at large as long as they may be relied 

upon to reappe ar for tria l, with no regard to the risk created for potential witnesses. Nor would the provision for a protective order be an adequate rem edy ; 

a cou rt would be reluctant to act upon the prosecutor’s unsu bstantiate d suspicions 

and would requ ire a specific showing based on past occurrences in the pending 

case, such as an actual atte mpt to thr eaten or suborn one of the government’s 

prospective witnesses. Correspondingly, the formal existence of this remedy 

would not alleviate the concern of a p oten tial witness weighing w heth er he should 

come forw ard and cooperate. Indeed, preliminary data from a witness cooperation study conducted by the Insti tute for Law and Social Research in Washington, D.C., under a gra nt from the Law Enforcement Assistance Adm inistration confirms the impact which witness fear h as on criminal prosecutions. When 

asked the open-ended question, “What changes do you thin k would make witnesses more willing to cooperate?” 28.8% of those witnesses who had cooperated 

with the police and the United States Attorney’s Office and 31.3% of those who 

had declined to cooperate gave one of three significant kinds of responses, all 

reflecting a concern with rep risal: “Be tter protection of witnesses by police,” 

“Keep witness identification from defendants,” and “Assure witness of protection after testim ony.” We believe tha t the alre ady dem onstrated fear of witnesses 

about testifyin g against defe ndants would, under the proposed Rule, become a 

substan tial, if not totally destructive, impediment to effective law enforcement, 

and wTe furth er believe th at in view of the alrea dy substantiated basis for those 

fears, the proposed Rule would be adopted only at a tota lly unacceptable risk 

to the lives and safety of witnesses.

2. Mandatory Discovery.—B y using “shall” throughout the amended Rule 16, 

the language of the Rule w’ould divest courts of existing discretion in handling 

discovery problems and would m ake discovery under the Rule mandatory absent 

the making of a “sufficient” showing by the par ty possessing the information 

requested. The Advisory Committee note to the proposed Rule explains that the 

reaso n for the mandatory language is to make clear “th at discovery should 

be accomplished by the p arties themselves, without the necessity of a cou rt order 

unless there is a dispute concerning whether the ma tter is discoverable or a request for protective order under subdivision (d )( 1). ” However, rather than 

elim inating litig atio n over discovery, as the Advisory Committee note implicitly 

suggests would be the effect, it can be expected that, deprived of their trad itio nal 

righ t to tailor discovery to the facts of each partic ula r criminal case, trial 

courts would become embroiled in litig atio n fostered by both the defendan t and 

the government over issues whether each side has fully complied with its mandato ry and contin uing disclosure obligations. The problem is aggrava ted by the 

fac t th at the shift from discovery controlled by invocation of the courts' discretion to mandatory discovery has been accompanied by removal of “access 

limitations” requ iring specificity, reasonableness, and a showing of materiality. 

In addition, any insignificant noncompliauce on the government’s p art would inevitably be alleged as a violation of due process, while noncompliance on the
pa rt of defen dants , even if serious, is highly unlikely to res ult in the imposition 

of any meani ngful sanctions.

We are a lso concerned with the provisions of proposed subdivision (a ) (1 ) (A ) 

which would author ize defen dants which are c orporations, partner ship s, associations, or labor unions, to discover the grand jury testimony of officers or employees. Such discovery would seriously ham per prosec utions of both corporat e defendan ts and indiv idual defe ndan ts joine d with them and discourage 

the testimony of witness es now protected by gra nd jur y secrecy rules.

Recomm endation.—For the reasons sta ted above the Dep artm ent of Jus tice 

opposes the proposed am endmen ts to Rule 16.

RULE 20 . TRANSFE R FROM TH E DISTRICT FOR PLEA AND SEN TEN CE

The Propo sal.—The amendment would provide th at a person “pres ent ” in a 

dis tric t oth er tha n the distric t in which he is charged with a crim inal offense 

may, subje ct to the oth er provisions of Rule 20, and with the conse nt of the 

United States Attor neys for each dis trict plead guilt y in the dis tri ct in which 

he is “prese nt”.

Recommendation.—While the Dep artm ent of Jus tice supp orts this change, it 

should be pointed out th at with respect to charg es aga ins t juveniles, both the 

United States Attorney in the distric t in which the charges are pending, as well 

as the United Sta tes Attorney in the Dis tric t in which the juve nile is found, 

should determin e whe ther a juvenile is to be processed in the dis trict in which 

he is found. Accordingly the words “for each distr ict” should be inse rted af ter 

the phra se “United States Attorney” in subdivision (d ).

W. Vincent Rakes traw was appointed Ass ista nt Attorney General for Legislative Affairs and confirmed by the Senate in March of 1974.

He is a form er Ass istan t Attorney General of Ohio and served as Legislative 

Ass istan t to Sena tor William B. Saxbe for over five years.

He was educa ted at Ohio University in Athens, Ohio, and the Fra nkl in Law 

School at Capitol University in Columbus, Ohio, and is a member of the Ohio, 

Flor ida and Distr ict of Columbia B ars.

Richard L. Thornburgh, U.S. Attorney—Western Pennsylvania, 

Pittsburgh, Pa.

Age 42—Married—4 sons.

Gradua te of Yale College and Univ ersity of Pitt sbu rgh Law School (High 

Honors; Edito r, Law Review).

Member of Ba r—U.S. Supreme Cou rt; adm itte d to all Fed eral and Sta te 

Courts in Penn sylv ania since 1957.

Member; House of Delegates, Pennsyl vania Ba r Association, American Ju ­

dicial Society.

For mer Board Member; Urban League of Pit tsburg h; Neighborhood Legal 

Services Association (OE O) ; ACLU of Greater P ittsb urgh.

Elected Delegate, Pennsylva nia Con stitu tional Convention, 1967-1 968, Secretary , Jud icia ry Committee.

Appointed U.S. Attorney for Western Pennsylv ania, 1969, re-appointed, 1973; 

member U.S. Attorneys Advisory Committee to U.S. Attorney General, 1973 to 

date.

H. M. Ray, U.S. Attorney, Northern District of Miss iss ipp i

Has served as United States Attorney for the Northern Dis tric t of Mississippi 

for thi rte en years, and has actively par ticipa ted in significant crim inal and civil 

tri als and appellate argum ents. Has been a freq uen t contributor of proposals 

dealing with Federal Rules of Civil, Criminal and Appellate Proced ure. I s a member of the Atto rney General’s Advisory Committee of United States Att orneys, and Chai rman of its Legislation and Court Rules Subcommittee. Recently 

testified before the Senate Committee on the Jud iciary on the pending proposed 

Fede ral Rules of Evidence, and before Subcommittee on Crime, House Committee 

on the Jud icia ry, on the “Speedy Tri al Act of 1974.” Spearh eaded rece nt United 

Stat es Attor neys successful efforts with Congress for a dditiona l consi deration of 

imp orta nt crim inal rule s proposals.
51

He is President-Elect of the Mississippi Chapter of the Federal Bar Association, a member of the American Bar, the Mississippi State Bar, a former 

State Legislator and former County Prosecuting Attorney.

Subcommittee on Legislat ion and Court R ules

The purposes stated by the Attorney General in his creation of the Advisory 

Committee of United States Attorneys were :

(1) To give the United States Attorneys a voice in Departmental policies;

(2) To conduct studies and make recommendations with regard to improving 

management, specifically with respect to relationship between the Department 

and the United States Attorneys;

(3) To improve liaison with State Attorneys General to the end of a better 

understanding of the proper sharing of law enforcement responsibilities by 

sta te and fede ral law enforcement agencies ;

(4) To promote gre ater consistency in the application of legal standar ds across 

the country and across the levels of government;

(5) To aid him in formulating new program s for improvement of the criminal 

justice system at all levels, including the penal system ;

OBJECTIVES

In orde r to accomplish its responsibilities for the above purposes the objectives 

of the Sub-Committee bn Legislation and Court Rules shall include the following: (1) Establishing liaison and subsequent exchanging of views, comments and 

suggestions, with others involved in the Sub-Committee's areas of responsibility.

(2) Providing comments and suggestions, on an on-going basis, to the Committee on Rules of Prac tice and Procedure of the Jud icia l Conference of the 

United States.

(3) Reviewing and responding to legislative proposals, including such current 

pending subject m atter a s :

(a) Federal Criminal Code.

(b) Federal Rules of Evidence.

(c) Speedy Trial.

(d) Federal Grand Juries.

(e) Deferred Prosecution of Adults.

(4) Initiati ng legislative proposals on C riminal Justice System subject matter.

(5) Commenting on impact of court rules, court decisions, Dep artm ental 

policy, and legislation of the criminal justice system.

ME MB ER SH IP

The membership of the Sub-Committee on Legislation and Court Rules shall 

consist of the six following regular members: Ralph G. Guy, Jr .— (E., Mich.) ; 

1>. Dwayne Keyes— (E., Calif.) ; James R. Thompson— (N., ill.) ; James M. Sullivan, Jr .— (N., N.Y.) ; James L. Treece— (Colo.) ; II. M. Ray— (N. Miss.), 

Chairm an; and such other special members, to be selected by the Chairman, as 

may be needed to car ry out any so cia l or par ticula r Sub-Committee objective.

U.S. Depa rtme nt op J us tice,

United State s Attorney,

Nort her n Dist ric t of Mis s is s ip p i,

Oxford, Miss., Jun e 1}, 197}. Hon. W. Vin ce nt R ak est ra w,

Ass ista nt Attorn ey General,

Office of Legislative Affairs,

Department of Justice,

Washington, D.C.

Dear Si r : I am enclosing herewith six copies of the “Comments Of United 

States Attorneys On New Amendments To The Federal Rules of Criminal Procedure”, revised as of May 31,1974.

For your information, on June 7, 1974, by teletype, I asked each U.S. Attorney 

the following questions:

1. Whether you favor the substan tial modification of new amendments prio r 

to the ir becoming effective?
52

2. Whether, in the alternative , assuming th at modification is not possible at 

thi s late date, you favor legislation delaying the effective date of the rules until 

August 1,1973?

As of this date 90 of the 94 U.S. Attorneys have resoundingly answered, indicating an urgent need for modification, and all being of the unanimous view tha t legislation is needed to delay the effective date so th at the rules may be fu rth er 

studied by Congress.

If the United States Attorneys across this Nation are not experts in these 

matters, then I respectfully submit that there are none to be found. The representatives of the people should be alerte d to the urgent need for modification 

of these rules. Please convey to the Attorney General our grave concerns and our 

request for his strong support in calling these serious issues to the atte ntio n 

of The Congress.

Sincerely yours,

H. M. Ray,

U.8. Attorn ey,

Chairman, Legislation and Court Rules Subcommittee.

To: W. Vincent Rakestraw, Assistant Attorney General, Office of Legislative 

Affairs.

Info copy to all U.S. attorneys (including overseas ofiices).

Fm : II. M. Ray, U.S. Atty., N.D. Mississippi, Chairman, Legislation & Court 

Rules Subcommittee to U.S. attorney s Advisory Committee.

Su bj: Proposed amendments to Federal Rules of Criminal Procedure now pending in Congress.

In view of the substantial impact of the amendments to the Federal Rules of 

Criminal Procedure on the prosecution of Fed eral offenses, on J une 7, 1974, the 

following questions were asked, by teletype, of each United States At tor ney:

1. Whether you favor the substan tial modification of the new am endments prior 

to their becoming effective?

2. Whether, in the alternative , assuming that modification is not possible at 

this late date, you favor legislation delaying the effective date of the rules until 

August 1, 1975?

As of this afternoon 89 of the 94 U.S. atto rneys have responded. The responses 

have been absolutely overwhelming indicatin g th at modification is needed prio r 

to the amendments becoming effective. All reporting to this hour favor legislation 

delaying the effective date of th e rules until August 1,1975.

Please convey to the attorney general our grave concerns and request for his 

stron g support in these urg ent matters.
53

COMMENTS OF UNITED STATES ATTORNEYS

ON

NEW AMENDMENTS TO FED ERA L RULES OF CRIMINAL PROCEDURE

A

>

Revis ed as to May 31, 1974

44-625 0 - 75 - 5
COMMENTS OF UNITED STATES ATTORNEYS

ON NEW AMENDMENTS TO FEDERAL RULES OF 

CRIMINAL PROCEDURE

As a r e s u lt o f th e F ir s t Rep ort and Recomm endations 

to th e A tt o rn e y Ge neral from h is A dvis o ry Comm ittee o f U. S. 

A tt o rn e y s , in wh ich i t was re queste d th a t th e A tt o rn e y General 

re -e xam in e th e pre sent p o li c y o f n o t op po sing ru le s re p o rt e d by 

th e Supreme Court to Con gres s, th e De pa rtm en t re c e n tly in v it e d 

comments from United S ta te s A tt o rn e y s on th e ru le s which were 

fo rw ard ed by th e Supreme C ourt to Congres s on A p ril 22 , 1974.

U nited Sta te s A tt o rn e ys are o f th e ne ar una nimous view 

th a t th e prob lems pre se nte d by th e New Amendments to th e Fed er al 

Rules o f C rim in al Pro ce du re sh ould be ra is ed w it h th e Con gres s.

Comments from U nited S ta te s A tt o rn e y s , re ceiv ed as o f 

May 31 , 19 74, ar e se t fo rth h e re in un der th e a p p ro p ri a te ru le 

a fte r which ge ner al comments fo ll o w .
55

RULE 4

ARREST WARRANT OR SUMMONS UPON COMPLAINT.

Comments o f U. S . A tt o rn e y s

R ic hard L. Th or nb ur gh , N. D. P en n sylv a n ia :

Rule 4 would require the magistrate to issue a summons 

for the appearance of a defendant, rather than an arrest warrant, 

unless the defendant fails to appear in response to the summons 

or unless a valid reason is shown for the issuance of an arrest 

warrant. Query what the rules committee considers a "valid" 

reason or, what an individual magistrate might require as a "valid" 

reason.

It would appear that the very reason for resort in the 

initial instance to the complaint procedure, rather than initiating 

prosecution by indictment, is the need for quick apprehension of 

the defendant. A summons will in all probability be an invitation 

to numerous defendants to abscond.

Donald E. W a lt er, W. D. L o u is ia na:

I agree with Thornburgh.

W. C. Sm ithe rm an , D. A ri zo n a :

1 adopt Thornburgh's comments concerning these amendments

R ober t E. Jo hnso n, W. D. A rk ansa s:

I would agree with the substance of U. S. Attorney 

Thornburgh's comment on proposed Rule 4.

Ir a De M en t, M. D. Ala bama :

With regard to Rule 4, I recommend that summons should 

be at the discretion of the attorney for the government.

(R ul e 4, pa ge 1)
56

Robert G. Renner, D. Minnesota:

I approve of United States Attorney Thornburgh's comments 

on proposed changes to Rule 4.

I t is a fa ct of lif e th at cr im in als quite often ca rry 

the fru it s or in strum enta lit ie s of crime upon th e ir person or 

w ithin reaching range, such as a felon with a gun or a pusher 

with nar co tic s. Searches incide nt to arr est are va lid . Now, by 

summons, we sh all be advis ing a ll to rid themselves of in cr im inatin g 

evidence p ri o r to arr est.

J . P. Farris, S. D. Texas:

We agree stro ngly with the positio n (U.S .A. Thornburgh's) 

stated 1n your te letype as to Rule 4. In rec ent years much emphasis 

has been placed upon estab lis hing probable cause in a complaint and 

supporting a ff id a v it . This ru le , 1n additi on to giving the defendant 

an op po rtu nity to fr u str a te in vest ig ation or plea , seems to dis reg ard 

the fa ct th at the ma gis trate has already found th at the re is probable 

cause to arrest th is in div id ual. We pre dic t a considerab le increase 

in paperwork a» a consequence of th is proposed change, and feel th at 

the ad ditio na l burdens on the agents and the ass is ta nt United States 

attorn eys w il l not be au tomatically compensated fo r by ad ditio na l 

manpower, as we ll as serving no re a lly useful purpose.

Robert W. Rust, S. D. Florida:

The implementation of the summons process would be 

detrim ental to law enforcement fo r the fo llo win g reasons:

1. Would decrease amount of evidence seized in a search 

incide ntal to arr est by reducing number of arr ests .

2. Would Increase the number of fu g itiv e s.

3. Would cre ate more paper work fo r the U. S. Atto rn ey 's 

o ff ic e and the U. S. Marsh al's se rvice.

4. Would increase the time lag between issuance of the 

com plaint and eventual t r ia l.

(R. 4, p. 2)
57

Har ry D. Ste w ard , S . D. C a li fo r n ia :

The proposed m od ifica tio n to Rule 4 seems to be in 

lin e with the s p ir it of Ba il Reform Act, i. e . , th at a defendant 

is not to be inc arc era ted unless some good reason appears th ere fo r.

I t is my impression th at the Bail Reform Act did not substa ntially 

a lt e r the co urts' h is to ri c approach to in ca rcer ating defendants in 

lie u of high bail where circumstances warrant i t . I would assume 

th at magistrates would ro utinely authorize arr est warrants where 

any re a li s tic need is shown. In my judgment the m odifica tio n merely 

recognizes the d e s ir a b il it y , where po ss ible, of not having to arrest 

defendants pending the fi n a l determination o f th e ir g u il t or innocence 

We have ro utinely used summonses in th is d is tr ic t fo r a number of 

years . Inc luding the use by o ff ic e rs of forms e n ti tl e d "Notice to 

Appear". Surp risingly we have had those arrested and released on 

b a il. Obviously we re s tric t the use of these nonarrest approaches 

to minor offenders who appear to be good risks. I see no ob jection 

to the m od ifica tio n of the ru le as proposed.

V ic to r R. O rt ega, D. New M ex ico:

P rio rit y is given under Rule 4 to the issuance of 

a summons ra th er than an arr est wa rra nt. Over the years, we 

have found th at su bs tantial evidence concerning crim inal a c ti v it y 

is frequently seized at the time of a defendant's arr est upon a 

wa rrant. This is esp ecially tru e in na rcotics cases where selle rs 

of na rc ot ic drugs freq ue ntly have na rcotics on th e ir person or in 

th e ir immediate environs at the time of th e ir arr est. Frequently 

a determination as to where the arr est should be made upon an 

arrest wa rrant is made upon previous in te lli gence as to where 

the defendant keeps his na rcotics or whether he may be a conveyor 

of narc otic s. While we regard th is as le gitim ate law enforcement 

work, others may not feel th at th is is a "v alid" reason and arr est 

warrants may not issue in many situations which would re su lt in 

better cases.

In additio n, a fa il u re to answer a summons may not 

amount to bail jumping because under 18 U.S.C. 3150, a defendant 

must have been released under th at act, then fa il u re to answer 

a summons would not appear to be a vio la tio n of the act . In 

the Tenth C ir c u it , a fa il u re to appear as req uired under the 

Ba il Reform Act is evidence which would be admissible on the 

main charge as evidence in the nature of fli g h t.

(R. 4 , p. 3)
58

V ic to r R. O rt ega, D. New Mexico ( c o n t'd .)

We have some concern th at the new ru le giving p rio rit y 

to the use of a summons w il l perhaps promote ar re sts with ou t 

warrant based on probable cause th at a felony had been comm itted. 

This might be the only way to ins ure th at important evidence was 

seized at the time of the arr est. Because of the d iffic u lt ie s 

we foresee, we recommend th at the proposed changes to Rule 4 be 

opposed by you r sub-committee.

C harl es H. A nder so n, M. D. Tenness ee:

The Ba il Reform Act has created enough problems with 

defendants' fa ilu re s to appear and re port. I can th in k of no 

greater boon to the crim inal element than leaving i t to the whim 

of the Magistrate or the vagaries of the Postal Service as to 

whether they w il l appear. "V alid reason" is meaningless term; 

we always use the summons fo r defendants who we do not fe ar w il l 

flee. Our loca l magistrate has indica ted he is contem plating 

using th is te st: i f bond would be requ ire d, a wa rrant w il l issue; 

oth erwise, a summons.

Sta n P it k in , W. D. W as hi ng to n:

We agree th at whenever fe asib le , a summons should be 

used on comp laints . However, we would pr ef er th is be set out 

in the ru le as a polic y statement ra th er than re quirin g a showing 

of a "v alid reason" fo r the issuance o f a warrant separate and 

apart from the "probable cause" necessary fo r the issuance of the 

comp laint. In the ru le as i t now stands, the re are no standards 

set out as to what "v alid reason" fo r the issuance of a wa rrant 

(rath er than a summons) is necessary and whether i t should be 

under oath or in w ri tin g . I f we are in fa ct to be require d to 

show additi on al cause fo r the issuance of a wa rra nt, the ru le , 

at minimum should be c la fi rie d as to whether the "v alid reason" 

must be shown in the com plaint or otherw ise in w ri ti n g . Also, 

we would suggest a specific prov ision th at the magistrate may 

not be second-guessed and th at a court 's subsequent determination 

th at no "v a lid reason" ex isted fo r the issuance of a warrant should 

not be grounds fo r in valid ating the arr est and any searches in cident 

th ere to . Otherwise, we foresee endless li tig a tio n .

(R- 4, P

. 4)
59

H. M. Ray , N. D. M is s is s ip p i:

We see no cause fo r changing the present Rule 4.

Issuance of a summons in lie u of an arr est warrant should 

at le ast requ ire concurrence of the attorney fo r the government. The 

origin al d ra ft , commented on by the bench and the bar, ca rrie d over 

the exis ting prov ision denying the cou rts power to ov errid e the government's 

decis ion th at a summons may sa fely be used, i t would be anomalous to 

au thorize courts to ov errid e the government's judgment th at fo rc ib le 

apprehension is necessary. Decision on whether a summons or arres t 

wa rrant should be used is prop erly le ft with the exe cutive branch.

In the altern ative the proposed ru le should be amended by 

dele tin g the language contained in 4(b) (2) and in sertin g in Heu thereo f 

language which would requ ire th at a warrant sh all issue whenever "(2) 

requested to do so by the attorney fo r the government", by de letin g 

the entire provisions of 4(b )( 3), and by de letin g the language set 

fo rt h in 4(c) and in sertin g in lie u ther eo f:

"A complaint or a ff id a v it sh all not be 

in s u ff ic ie n t because made on inform ation 

i f such information appears from the 

com plaint or a ff id a v it (or otherw ise) 

to be reasonably tru stwor thy. More than 

one warrant or summons may issue on the 

same com plaint or fo r the same defen dant."

The pro hib itio n again st iss uin g even a summons on an 

Information unless i t is supported by a ff id a vits showing probable 

cause in the ela borate deta il more and more require d w il l re sult 

1n unnecessary delay and inconvenience in pro secuting minor offenses, 

not only in U. S. d is tr ic t courts but in a ll p ro b a b ility 1n prosecution 

of minor and pe tty offense s before magistrates [see Rules 1, 2(a) and 

3(a ), Rules of Procedures For T rial of Minor Offen ses].

I t is also proposed to Include new language in Rule 4 

to pro vide th at probable cause may be founded on "hearsay 1n 

whole or in p a rt ." The commentary merely notes th at th is "is 

cu rren t law."

Inso far as the amendment recognizes th at a warrant 

may issue on hearsay evidence, i t goes no fu rt her than the 

exis ting ru le which autho rizes the Issuance of a warrant on 

a ff id a v it s . Any a ff id a v it , even one made on personal knowledge, 

is hearsay "because, though under oath, 1t is utte re d 'ex parte1.

(R. 4, p. 5)
H. M. Ray, N. D. M is s is s ip p i ( c o n t'd .) s

with ou t no tic e to the opponent to afford him the op po rtu nity of 

cro ss-examination," 6 Wigmore, Evidence Section 1709 (3rd Ed 

1940). -----------

The amendment, however, is obviou sly not addressed to 

hearsay in th is sense. The amendment is intended to approve 

statements by info rmers or th ir d persons to the a ff ia n t which 

are repeated by the a ff ia n t in his a ffid a v it . The statement of 

the inform er to the a ff ia n t is , of course, hearsay even double 

hearsay when presented to the magistrate in the a ff id a v it . The 

sig n ific a n t poin t, however, is not th at i t is hearsay, but th at 

i t is not under oath as required by the Fourth Amendment. The 

use of such unsworn hearsay in ob taining warran ts was expre ssly 

upheld in Jones v. United States, 362 U.S. 257, 271 (I960) and 

long before had been approved in opinions such as Brinegar v. 

United States, 338 U.S. 160, 175-76 (1949) where the co urt said:

"Probable cause exists where 'th e fact s 

and circumstances w ithin th e ir [the o ffic e rs '] 

knowledge and of which they had reasonably 

tru stwor thy inform ation [a re ] s u ff ic ie n t in 

themselves to warrant a man o f reasonable 

caution in the b e lie f th at an offense has 

been or is being com mitted."

The problems considered in the rec ent cases which 

have attra ct ed the re vis ers ' attention have arise n not from 

the use of unsworn hearsay, but from the re lia nc e on unsworn 

hearsay which is fa ctu a lly inadequate to show the commission 

of a crime by the accused. This point 1s amply il lu s tr a te d 

by the cases cited by the re vise rs .

In Giordenello v. United Sta te s, 357 U.S. 480 (1958), 

the entire complaint sta ted no more than the a ff ia n t's conclusion 

th at the defendant had received and concealed na rcotics with ou t 

any supporting fa cts . The co urt held th at "1 t is cle ar th at i t 

does not pass muster because i t does not provide any basis fo r 

the Commissioner's determination under Rule 4 th at probable 

cause exis te d," Id . at 486.

In Aguila r v. Texas, 378 U.S. 108 (1964) the releva nt 

pa rt of the complaint stated only the a ff ia n ts ' b e lie f, on the 

basis of "re lia b le information from a cr edib le person" th at the
61

H. M. Ray, N. D. M is si ss ip p i (c o n t'd .) :

defendant possessed na rcotics. There was no factua l deta il 1n 

the complaint and the co urt held th at the "wa rrant should not 

have Issued because the a ff id a v it did not provide a s u ff ic ie n t 

basis fo r a findin g of probable cause," Id . at 115.

In S pin elli v. United States, 393 U.S. 410 (1969) 

the es se ntial alle gation of the a ff id a v it sta ted merely th at 

the a ff ia n t had been informed by a re lia b le info rmant that 

the defendant was conducting a gambling operation . Other 

facts were re ci te d but a majority of the Court considered them 

innocuous or e n title d to no weight. The co urt held th at "the 

inform an t's tip--eve n when corroborated to the extent in dicate d-- 

was not s u ff ic ie n t to provide a basis fo r a fin din g of probable 

cause," Id . at 418.

In a ll of these cases, the a ff id a v it s sta ted only 

the ultim ate fa ct in is sue--th at the defendant had committed 

a crime. None state d, either d ir e c tl y or by hearsay, sworn 

or unsworn, any evi dent iary facts to ju s tif y the b e lie f th at 

any offense had been committed by the accused. When the 

a ff id a v its in these cases are contrasted with those upheld 

in oth er cases cited by the re vis ers , i. e . , McCray v. Illin o is ,

386 U.S. 300 (1967); Jaben v. United States, 381 U.S. 214 (1965); 

United States v. Ventrasca, 380 U.S. 102 (1965), i t seems clea r 

th at the defec ts in the former were th e ir factua l inadequacy 

ra ther than th e ir testim on ial u n re li a b il it y .

For these reasons, the proposed change is an 

empty gestu re. I t adds nothing to the ru le by sp e cific a lly 

mentioning hearsay when the ru le already autho rizes the 

issuance of warrants on a ff id a v it s . I t does not reach the 

ma tter of unsworn inform ation repeated in an a ff id a v it , and 

no re vi sion of the ru le can deal with the problem of a fa ctu a lly 

in s u ff ic ie n t a ff id a v it . Moreover, by expre ssly approving, in 

the termino log y of the rules of evidence, one form of inadm issible 

evidence the change may be interp re ted as disapproving other 

forms of ina dm iss ible evidence which e .g ., Brinegar v. United 

States, 338 U.S. 160, 172-73 (1949) (p ri o r arr est fo r sim ila r 

offens e). The proposed change should be rejected alto geth er, 

but i f one is to be made i t should be made along the lin es 

suggested above as an altern ative to 4(c ). The above suggested 

altern ative would es tablish a normal, or ro utine, procedure th at 

a summons would be used (carrying out the views of U.S.A. Steward), 

but would ma intain the absolute ri g h t of the Executive Branch to 

requ ire a warrant when the attorney fo r the government deems a 

warrant approp ria te (carrying out the views of the othe r U. S. 

Atto rney s).

(R. 4, p. 7)
62

H. M. Ray, N. D. M is sis s ip p i ( c o n t'd .) :

The proposed change provides fu rt her th at "be fore 

ru lin g on a request fo r a warrant the ma gis tra te may re qu ire 

the complainant to appear person ally and may examine under 

oath the complainant and any witnesses he may produce, 

provided th at such proceeding sh all be taken down by a co urt 

repo rter or rec ordin g equipment."

The commentary expla ins th at th is change makes cle ar 

th at the magistrate may examine the complainant or other witnesses 

to determine the existence of probable cause, but th at such 

examination must be recorded. The purpose of th is change "is 

to ins ure th at the re ex ists an adequate basis fo r review ing the 

pro priety of the issuance of the wa rrant i f it s issuance should 

be attacked upon a subsequent motion to suppress evidence seized 

incident to the arr est, fo r example." Why th is is necessary or 

even desi ra ble, the revise rs do not say.

Ju stice Bla ck's response to the holdin g in Agu ila r 

v. Texas, 378 U.S. 108 (1964) 1s even more appropriate as 

applie d to th is proposal:

"That decision went very fa r toward 

eleva tin g the mag istrate's hearing fo r 

issuance of a search wa rrant to a f u llfled ged t r ia l, where witnesses must be 

brought forward to a tt e s t pe rson ally to 

a ll of the facts allege d. . . . Of course, 

i t would strengthen the probable cause 

pre sentation i f eye witnesses can te s tif y 

th at they saw the defendant commit the 

crime. I t would be stronger s t i l l i f 

these witnesses could ex plain in deta il 

the nature of sensual perceptions on which 

they based th e ir 'con clus ion' th at the 

person they had seen was the defendant 

and th at he was res ponsible fo r the events 

they observed. Nothing in our C onstitu tion, 

however, req uires th at the fa ct s be establis he d with th at degree of cert ain ty and 

with such elaborate s p e c if ic it y before a 

policeman can be autho rized by a d is in ­

terested ma gistrate to conduct a care fu lly 

lim ited search." S pin elli v. United States,

393 U.S. 410, 429 (1969) (Dissenting Opinion).

(R. 4, p. 8)
63

H. M. Ray, N. D. M is s is s ip p i ( c o n t'd .) :

To these ob jections can be added the fu rt her one 

th at the proposed change w il l re sult in a needless and enormous 

waste of tim e, money and manpower.

R ober t J . R o th , D. Ka nsas:

Oppose change. Warrants should be issued unless 

circumstances ju s tif y issuance of summons. When charges are 

f ir s t fil e d , fre qu en tly c rit ic a l information is not ye t 

ava ila ble . Facts ju s ti fy in g issuance o f summons normally are 

« known or re adily ava ila ble .

Wayman G. S h e rre r, N. D. Ala bama :

a Gen erally not ob jectiona ble. S p e cific a lly, what does

th is do with respect to making more d iffic u lt prosecutio ns under 

the Bail Reform Act (18 USC 3150). Secondly, a ll being aware of 

the in vestigative agencies' sta tu to ry ri g h t to wa rra ntles s probable 

cause arr ests , even with ou t p ri o r co ns ultatio n with United States 

Attorney , w il l not th is prov ision serve to increase ra th er than 

lessen the incidence of premature or prein dic tment arr ests?

Earl J . S i l b e r t , D. C .:

This ru le , as the Advisory Committee Note acknowledges, 

would give p rio rit y to the issuance of a summons over a wa rra nt, 

even where probable cause exi st s to arr est a defendant, and would 

preclude the issuance of an arr est wa rrant except where a defendant 

fa il s to appear in response to a summons, a "v alid reason" is shown 

fo r the issuance of an arr est wa rrant ra th er than a summons, or a 

summons having issued, a valid reason is subsequently shown fo r the 

issuance of an arrest wa rrant.

I t is our view th at th is ru le , i f permitted to stand as 

proposed, would have a devastating e ff e ct on federal law enforcement 

e ff o rts , as well as law enforcement e ff o rt s of loca l ju ri sd ic tio n s 

which adopt the ru le . I t would severely increase what has already 

been characterize d as a "fu g it iv e c ris is " in th is and oth er 

ju ri s d ic ti o n s by puttin g those accused of crime on no tic e th at they 

are being sought by law enforcement o ff ic e rs and should thus take 

pre cau tion s to avoid apprehension. (In th is connection, I have

(R. 4, P. 9)
64

Earl J . S i l b e r t , D. C. (c o n t’d .) :

appended a memorandum from Charles H. Ro istacher, the Chief of our 

Federal Grand Jury Se ction, to Paul L. Friedman, our Adm inistra tiv e 

Ass ista nt, in which Mr. Roistacher deta ils his apprehensions about 

the proposed amendments to Rule 4. To those who would mainta in 

th at most summoned defendants charged with serious crime w il l appear 

vo lu n ta ri ly , the s ta ti s ti c s obtained from the C le rk 's O ffice of the 

United States D is tric t Court by Mr. Ro istacher, in dic ating th at even 

in tr a ffic cases, only ten per cent of 2600 summoned defendants 

appeared, are strong evidence to the contrary .) (Copy of memorandum 

not included in these comments; origin al sent to Mr. Ronald L. Gainer, 

Acting Chief, Legis la tio n and Special Projects Se ction, Crim inal 

D iv is io n.)

In add ition to encouraging fu g itiv ity , the proposed amended 

Rule 4 would also fo ste r the fa brication of a li b is and the secreting 

and de stru ction of evidence by crim inal defendants before law enfor cement o ff ic e rs had an op po rtu nity to apprehend them. F in a lly, i t is 

li k e ly th at the Rule would encourage po lic e to e ff e ct ar re sts with ou t 

warrants in a la rg er number of cases because of the d if fic u lt ie s of 

obtaining arr est warrants .

This amendment was not included in e ith e r the January,

1970, or the A p ril , 1971, pr elim inary dra fts of proposed amendments 

to the Federal Rules and thus, neith er the Advisory Committee nor 

the Supreme Court received the assistance of the comments and 

criticis m s of the bench and bar. Indeed, the Advisory Committee 

Note to the proposed amendment of Rule 4 re fe rs only to the proposed 

amendment to Rule 9 to suggest the reasons fo r the change, and the 

Advisory Committee Note to Rule 9, in tu rn , cites only an a rti c le 

by Judge Marvin Frankel of the United States D is tric t Court fo r the 

Southern D is tric t of New York in support o f the change. While 

Judge Fr an ke l's a rtic le is discussed in somewhat more deta il in 

our comments below, i t is s u ff ic ie n t to note here th at his a rti c le 

is devoted not to Rule 4 at a ll, but excl usi ve ly to a c rit ic a l 

an alysis of Rule 9 and its requirement th at arr est warrants issue 

au tomatically fo r in dicte d defendants upon the demand of the United 

States Attorney . See Frankel, "Bench Warrants Upon the Prosecutor's 

Demand: A View from the Bench", 71 Col. L. Rev. 403 (1971).

Po intin g up the dea rth of auth ority in support of his novel pro posal, 

Judge Frankel, with ty pic al candor, acknowledged th at 11 of his 13 

bre thren on the Southern D is tr ic t Bench, as we ll as a ll citable 

commentators, disagreed with his view. See Frankel, supra, p. 403, 

n. 1 and p. 410, n. 25.

(R. 4, p. 10)
65

Earl J . S i l b e r t , D. C. ( c o n t'd .) :

In ad ditio n to the su bs tant ial d if fic u lt ie s which the 

proposed amendments to Rule 4 would portend fo r law enforcement 

and the lac k of auth ority in support of the change, the proposed 

amendment its e lf is vague, su bjec t to varying in te rp re ta tio n , and-- 

as Judge Frankel also acknowledged—lik e ly to re su lt in a whole new 

panoply of adversary proceedings, os tens ibly at both the tr ia l and 

ap pe lla te le vels , to te st the effic acy of mag isteria l determinations 

th at the Government demonstrated a s u ff ic ie n tl y "v alid reason" fo r 

the issuance of an arrest wa rrant ra th er than a summons. See Fra nkel, 

supra , p. 414, n. 40. Most im po rtan tly in th is regard, the re is no 

d e fi n it io n o f "v alid reason" in e ith e r the Rule or the Advisory 

Committee Note, and Judge Fran ke l's almost casual dismis sal of the 

problem is of l i t t l e additio na l help. See Fra nkel, supra , pp. 404- 

405. A dditio nally, no prov ision is made fo r the processing (e .g ., 

booking, fi n g e rp ri n tin g , photographing, e tc .) of defendants who are 

summoned, ra th er than arrested .

For the reasons noted above we vigo rous ly and steadfa st ly 

oppose the prom ulgation of the proposed amendments to Rule 4 and 

urge th at the exis ting Rule 4 be re ta ined . Nevertheless, in the 

absence of the Department conside ring i t either de sirable or 

fe asi ble to re ta in exis ting Rule 4, we would urge th at the proposed 

amendment be modified to defin e a "v a lid reason" fo r the issuance 

of an arr est warrant ra th er than a summons by adding as a fin a l 

paragraphs to proposed Rule 4(b ) the fo llo win g language: A "v alid 

reason" exi st s fo r the issuance of an arr est warrant ra th er than a

summons where the defendant is charged with an offen se re lated to

na rcotics or in vo lving the ri s k of physical harm, where the attorney

fo r the government c e rti fi e s th at issuance of a summons ra th er than

a wa rrant may afford the defendant an op po rtu nity to destroy evidence

of the offense or to fa bricate an a lib i, or where he states reason to

believe th at the defendant may fle e upon being summoned. (A comparable

c e rti fi c a ti o n prov ision was proposed in the A p ril , )971 Report to the 

Attorney General Concerning disc losu re of government witnesses. See 

pp. 28-29 .)

R ober t E. Hau be rg , S. D. M is s is s ip p i:

The new proposed ru le requ ire s th at only a summons 

be issued on a com plaint or upon the re turn of an ind ictmen t 

unless some valid reason is shown fo r issuance of an arr est 

wa rra nt. Why should th is extreme burden be placed upon the 

government?

Extreme hardship w il l be placed upon arr est in g 

o ff ic e rs who may have evidence of a stolen motor ve hicle being

'R . 4 , p. 11)
66

Ro be rt E. Hau berg, S. D. M is si ss ip p i (c o n t' d .) :

transported in in te rs ta te commerce and i f the o ff ic e r must re ly 

upon a summons defendant w il l be out of the ju ris d ic ti o n before 

the summons could even be served upon the defendant. Certain 

types of crimes would never be prosecuted i f a summons only is 

issued. Many grand ju ro rs expect a warrant of arr est to be 

issued in instances where probable cause is s u ff ic ie n t fo r the 

return of a tru e b ill. The law is adequate at the present time 

to allow a summons instead of a warrant i f made upon the request 

of the attorney fo r the government.

From th e O ff ic e o f James R. Thompson, N. D. I l l i n o i s :

New Rule 4(a) su bs titutes summonses fo r arrest warrants 

in com plaint proceedings before mag istra tes. Such a substitu te is 

appro priate in ce rtain categories of cases, but not in cases where 

either the nature of the offense or past conduct of the defendant 

in vite the p o s s ib ilit y of fli g h t to avoid pro secution. Certain 

offenses, as we ll as certain types of past conduct, should, per se, 

fa ll under the arr est warrant provisions of the old ru le .

Naw Rule 4( b) (3 ) provides fo r the issuance of arrest 

warrants a ft e r a showing of valid reason to the mag istra te, but 

only a ft e r summons has issued. This presents a double-barreled 

problem. By the time showing is made, wa rrant is issued, and 

agents have been mob iliz ed , i t is possible fo r the defendant to 

have already been put on no tice by the pr ev ious ly issued summons 

and have long fle d by the time the agents a rr iv e . Secondly, i t 

leaves too much to the whim and caprice of in div id ual mag istrates , 

who do not have the background and experience o rd in a ri ly a tt ri b u ta b le 

to.ju dg es . Ma gis trates do not s it through complex and revealing 

tr ia ls and, th ere fo re , never obtain the quantum of exposure ava ila ble 

to d is tr ic t co urt judges.

The new rules as w ritten does create the summons as a 

viab le to o l, but unless a magistrate fin ds oth erwise, becomes the 

to o l. The fo llo win g are several suggestions which minimize the 

ri sk of premature no tic e to a fli g h t prone su bjec t and s t i l l 

preserves the advantages of the a v a il a b il it y of the summons. The 

fo llo win g is a p a rt ia l l is t of types of offenses wherein arrest 

warrants should au tomatically issue and in which summons is 

unavailable:

a. a ll homicide offenses;

b. a ll offe nses invo lving a weapon in th e ir commission;

(R. 4, p . 12)
67

From th e O ff ic e o f James R. Thompson, N. D. I l li n o is ( c o n t'd .) :

c. a ll bank robb eries;

d. robberies of postal employees;

e. kidnappings;

f. hijack in gs;

g. a ll hard na rcotics cases;

h. a ll drug cases over a ce rtain number of ounces;

1. a ll exto rtio ns;

j . most TFIS cases;

k. a ll firearm s vio la tio n s;

l . Mann Act vio la tions;

m. counte rfeitin gs; and

n. fo rg eries.

In additio n, summons should not be ava ila ble reg ardless 

of the crime, i f either the defendant has been convicted of any of 

the fe lo nie s enumerated in a. through n. above w ithin the past five 

years , i f he has ever been con victed of a homicide, and i f he has any 

charges pending again st him in any co urt fa ll in g under the a. through 

n. categ ories liste d above.

Furthermore, summons should not be ava ila ble where the 

defendant is an alie n or has no su bs tantial tie s to any one place.

At the same tim e, the re are innumerable categ ories of 

crime where there ex ists l i t t l e , i f any, risk of flig h t. In these 

cases, unless there is a showing to the co ntra ry , a summons should 

issue, and these are:

a. tax cases;

b. mail fra uds;

c. perjuries;

d. bankruptcy fra ud s;

e. most postal vio la tio n s;

f. vote fraud cases;

g. IRS liq uor vio la tions;

h. Impersonation of fed eral o ff ic e r cases; and

i . Dyer Acts.

Probably the best altern ative 1n re vi sing the ru le is to 

re ta in the present ru le with the pro viso th at a summons w il l Issue 

upon applic atio n by the United States Attorney and approval by the 

ma gis trate or sue sponti by the ma gis tra tes .

(R. 4, p. 13)
68

Paul J . Cu rra n, S. D. New York:

The imp ortant change made by th is ru le is th at i t 

gives the Magis trate dis cr etio n whether to issue a summons or a 

wa rrant of arr est upon the filin g of a complain t. The p e cu lia ri ty 

of the change in Rule 4 is made cl eare st by the fa ct th at in th is 

D is tric t the re are hardly any situ ations in which i t would be 

appropriate to commence crim inal proceedings by way of a complaint 

before the Magis trate with ou t the need to secure the immediate 

arrest of the defendant. I f the Magistrate decides in a given 

case th at a summons is preferab le to a warrant, and he is wrong, 

then the defendant w il l be but another fu g it iv e who w il l have to 

be pursued.

Another danger posed by the new ru le arises from the 

vagueness of the standard fo r immediate issuance of a warrant of 

arrest instead of a summons (" va lid reason" - 4(b )(2) and (3 )) 

and the li k e ly pr otractin g of proceedings before the Ma gis trate 

in having to show th at a warrant ra th er than a summons should 

issue. A considerable amount of time is being wasted before the 

Magistrates now because of fa ir ly fre quent congestion in th e ir 

calendars.

A dditio nally, of course, i t appears th at i t w il l now 

be open to a defendant to move to suppress evidence secured 

in cident to an arrest on a wa rrant on the grounds th at the showing 

of a "v alid reason" fo r it s issuance was inadequate and th at the 

Magis trate abused his dis cre tion in not iss uing a summons instead 

of the warrant. In view of the enormously protracted suppression 

problem which already exists in crim inal cases, i t is fo olish to 

add a new and wh olly unnecessary ground on which suppression 

motions can be based.

Moreover, since an arr est warrant need not be obtained 

even where there is adequate time to do so, except perhaps fo r 

nigh ttime arrests in a home, United States v. Gonzalez, 483 F.2d 

223, 225 n.2 (2d C ir. 1973), the e ff e ct of the new ru le w il l be 

to discourage attempts to ob tain warran ts except when re a lly 

necessary. I t seems wh olly unreasonable fo r the re to be a ru le 

of crim inal procedure which puts a premium on avoid ing app lic ations 

to a Magistrate fo r a wa rrant. The probable response to th is 

re su lt may be a ru le th at a warrant of arr est must be secured in 

the absence of exige nt circumstances. I f th at happens, then 

of course the re w il l be an additio na l who lly unnecessary ground 

on which defendants w il l make p re tr ia l suppression motions.

(R. 4, p. 14)
69

Paul J. Cu rra n, S. D. New York ( c o n t'd .) :

The net of the new Rule is to create both present and 

pote ntia l com plications to taking custody of lawbreakers which 

exceed anything the Con stitu tio n requ ire s and w il l su re ly lead 

to fu rt her unecessary expend iture of law enforcement and ju d ic ia l 

resources and delay in what ought to be the purpose of the crim inal 

process--the prompt determination of g u il t or innocence.

(R. 4 , p. 15)

44-625 0 - 7 5 - 6
70

RULE 9

WARRANT OR SUMMONS UPON INDICTMENT OR INFORMATION.

Comments o f U. S. At to rn ey s

Ira De Ment, M. D. Alabama:

With re gard to Rule 9, I recommend th a t summons sh ou ld 

be a t th e d is c re tio n o f th e a tt o rn e y fo r th e go ve rnmen t.

Robert W. Rus t, S. D. Flori da:

The im ple m entio n o f th e summons pr oc es s wo uld be 

d e tr im e n ta l to law en forc em en t fo r th e fo ll o w in g re aso ns:

1. Would de crea se amount o f ev id ence se iz ed in a 

se arch in c id e n ta l to an a rre s t by re ducin g number o f a rre s ts .

2. Would In cre ase th e number o f fu g it iv e s .

3. Would cre a te more paper wo rk fo r th e U. S. A tt o rn e y 's 

o ffic e and th e U. S. M ars hal's s e rv ic e .

4. Would in cre ase th e ti m e .l a g between issu an ce o f th e 

com pla in t and eventu al t r i a l .

Stan P it kin , M. D. Was hington:

We have s im il a r o b je c ti o n s to thos e un de r Ru le 4 as to 

re q u ir in g a showing fo r Issu an ce o f a w arr ant on an In d ic tm e n t. 

In a d d it io n , we d o n 't see th e need fo r an oath on an In fo rm a ti o n 

1n ord e r to a ll o w th e c le rk to is sue a summons. We are not 

com ple te ly c le a r wh at "o ath " 1s re q u ir e d , but assume i t means 

an a f f id a v it un de r oath e s ta b li s h in g pro bable cause fo r the 

Issu an ce o f a summons. This makes th e c le rk th e perso n who 

dete rm in es w heth er th e re is pro bable cause fo r th e Issu an ce o f 

a summons, a ju d ic ia l d e te rm in a ti o n .

H. M. Ray, N. D. M is si ss ip pi :

We see no cau se fo r ch an ging th e pre sent Ru le 9.

(R ul e 9, pa ge 1)
71

H. M. Ray , N. D. M is s is s ip p i ( c o n t 'd . ) :

Issuance of a surranons in lie u of an arr est warrant should 

at le ast requ ire concurrence of the attorney fo r the government. The 

origin al d ra ft , commented on by the bench and the ba r, ca rrie d over 

the exis ting prov ision denying the courts power to ov errid e the government's 

decis ion th at a summons may sa fe ly be used, i t would be anomalous to 

au thorize courts to ov errid e the government's judgment th at fo rc ib le 

apprehension is necessary. Decision on whether a summons or arr est warrant 

should be used is prop erly le ft with the executive branch.

In the altern ative the proposed ru le should be amended 

by dele tin g the fo llo win g language se t fo rt h in proposed Rule 

9(a )(1) " i f i t is supported by oa ths," and by s tr ik in g the 

sentence in 9(a) th at reads "th e co urt sh all ord er issuance 

o f a warrant instead of a summons i f the attorney fo r the 

government presents a valid reason th ere fo r" and in sertin g 

in lie u ther eo f the fo llo w in g:

"However, upon requ est of the attorney fo r 

the government, the cle rk of the co urt sh all 

ord er issuance of a warrant instead of a 

summons fo r each defendant named in the 

inform ation, i f i t is supported by oa th, or 

in the in dict m en t."

E arl J . S i l b e r t , D. C.s

Our criticis m s of the proposed amendments to Rule 9 

essentially tra ck our ob jections to the proposed amendment of 

Rule 4, and a ll of the ob jections noted above to Rule 4 apply 

with equal force to Rule 9. Inasmuch as Judge Fran ke l's a rtic le , 

upon which the Adv isory Notes prop ortedly re ly in supporting 

amendments to both Rules, was e x p li c it ly addressed to Rule 9, our 

criticis m s of th at a rtic le bear p a rt ic ula r attention here; the 

proposal's fa ilu re to meet the problems of the increased lik elih ood 

of fu g itiv ity , fa brication of a li b is and des truc tio n of evidence 

th at would re sult from it s implem entation; the lack of support fo r 

Judge Frankel's view among his brethern and leg al commentators; 

the lik elih ood th at i t would spawn a su bs tantial measure of ad ditio na l 

co lla te ra l li tig a tio n in crim inal proceedings; and Judge Frankel's 

fa il u re to come to grips with the troublesome problems of d e fin itio n 

inherent in the "v alid reason" he would re qu ire fo r the issuance 

of an arr est warrant ra th er than a summons.

(R. 9, pa ga 2)
72

Ro be rt E. Hau berg, S. D. M is sis sip p i:

The new proposed ru le requires th at only a summons be 

issued on a complaint or upon the re turn of an indic tm ent unless 

seme valid reason is shewn fo r issuance of an arr est wa rrant.

Why should th is extreme burden be placed upon the government?

Extreme hardship w il l be placed upon arrest in g o ff ic e rs 

who may have evidence of a stolen motor ve hicle being tra nsported 

in in te rs ta te commerce and i f the o ff ic e r must re ly upon a summons 

defendant w il l be out of the ju ri s d ic ti o n before the summons could 

even be served upon the defendant. Certain types of crimes would 

never be prosecuted i f a summons only is issued. Many grand ju ro rs 

expect a warrant of arrest to be issued in instances where probable 

cause is s u ff ic ie n t fo r the re turn of a true b ill. The law is 

adequate at the present time to allow a summons instead of a warrant 

i f made upon the request of the attorney fo r the government.

From th e O ff ic e o f James R. Thompson, N. D. I l l i n o i s :

New Rule 9 adopts essentially the same substitu tion of 

summons fo r err est warrants in indictmen ts. The same reasons as 

set fo rt h in our comments under Rule 4 apply he rein, only more so.

Paul J. Curra n, S. D. New York:

This ru le req uires the Government to show a "v alid 

reason" why an arr est warrant should issue on an ind ictme nt 

instead of a summons; the previous ru le req uired the issuance 

of an arr est wa rrant upon request by the Government. This 

pro posal, also , carrie s with i t many of the problems already 

discussed in connection with the changes in Rule 4.

(R. 9, p. 3)
73

RULE 11

PLEAS.

Comments o f U. S. A tt orn eys

V ic to r R. Orte ga , D. New Mex ico:

The proposed changes in Rule 11 present a number of 

problems. Rule 11(e)(1) re fe rs to a plea being taken to a lesser 

or re late d offense. We question whether "rela te d" means fa ctu a lly 

related or le g a lly related and whether or not agreements beyond 

what appear in the ru le can be entered.

With respect to the words "o ther charges" we frequently 

run in to large marihuana seizu re cases or Dyer Act pro secutio ns 

in vo lvin g several in div id uals in an autom obile. Frequently one 

of the in div id uals is w il li n g to accept the blame fo r the entire 

ma tter and exculpate the othe rs. There is l i t t l e we can do under 

these circumstances other than to accept the plea bargain which 

re su lts in the dismissal of othe r charges again st othe r people.

We feel th at plea barga inin g is pres en tly an accepted procedure; 

however, encasing the ma tter in to a ru le w il l in evitably reduce 

the f le x ib ilit y of the device.

We are very concerned about plea bargain agreements 

being fu ll y dis clo sed in open co urt at the time the plea is 

offere d. Frequently in na rcotics cases pa rt of the plea bargain 

is th at the defendant s t i l l perform ce rtain useful work fo r government na rcotics agents, such as intro du cing them to heroin su pp liers 

and the li k e . Two of our judges have been very coopera tive with 

respect to th is problem and have not inqu ire d too deeply in to 

these plea bargain arrangements in public . However, one fed eral 

judge in th is d is tric t in sis ts th at the entire plea bargain go 

down on the record or he w il l not accept the plea at a ll. In 

one case, the defendant was scheduled to introd uce an undercover 

na rcotics agent to an important su pplie r w ithin a few days a ft e r 

the plea was to take place. Because of th is judg e's policy, we 

had no choice but to dism iss the case against the cooperating 

in divid ual ra ther than reveal the entire bargain. C learly th is 

so lu tio n is bad not only because we have to dism iss a prosecutable 

case, but als o because co ntro l over the coopera tive in div id ual 

1s lo s t. The danger to the coopera tive in divid ual of public iz in g 

his or her cooperation is , o f course, obvious.

(Ru le 11, page 1)
74

V ic to r R. O rt ega, D. New Me xic o ( c o n t'd .) :

Because of the problems we see with Rule 11, we oppose 

these proposed changes.

Sta n P itk in , W. D. W as hi ng to n:

Rule 11(e)(1 ) raises many of the normal po ints of 

discussion in plea barga inin g but is unclear whether those are 

the only perm issible subje cts of discus sio n. Among oth er matters 

ty p ic a lly discussed are testim ony, in te llig e n ce , and oth er means 

of developing fu rt her cases which the government is in tere sted in , 

and various matters to be offered to the defendant such as *

dis positio n of pro bation and parole problems or dis positio n of 

charges as to othe r persons.

Rule 11 (e)(2 ) req uires th at the plea agreement be F

disclosed in open co urt. I f pa rt of the plea bargain 1s to aid 

the government as a witn ess or as a source o f in form ation, 

disclosu re of such in open co urt may destroy defendant's 

effectiven es s and w il l make such an agreement impossible i f 

the defendant wants anonymity as to his cooperation . Obviously 

some plea bargains should not be made public in the in te re st of 

safety of the defendant or to avoid prejud ice to othe r cases.

The ru le should be e x p li c it th at the co ur t has dis cre tion to 

hear such problems in chambers and to seal the record.

W illi am D. K e ll e r , C. D. C a li fo rn ia :

I stro ngly fe el th at the nolo plea should be abolished. 

There is no valid reason to protec t a defendant from c iv il lia b ilit y 

i f he is in fa ct g u il ty of a crime. The public's confidence in the 

law enforcement system is diminished by the existence of such a ple a.

H. M. Ray , N. D. M is s is s ip p i:

The f ir s t sentence of Rule 11(b) should be amended to

read:

"A defendant may plead nolo contendere only 

with the consent of the government and the 

court ."

(R. 11 , p. 2)
75

H. 11. Ray, N. D. M ississ ip pi (c ont' d.) s

To avoid po st-c on viction hearings on a ll Rule 11 

in q u ir ie s, to insure r e lia b ili ty of the defendant's statements 

to the Court; and fo r the reasons and requirements in Sryan v.

United States, 492 F.2d 775, 780 (1974), i t is suggested th at 

the defendant be placed under oath at the ou tset of the Rule 11 

in quiry. We therefore recommend th at proposed Rule 11(d) be 

modified to read as fo llo ws:

"( d) INSURING THAT THE PLEA OF VOLUNTARY.-The 

co urt sh all not accept a plea of g u ilty or nolo 

contendere with ou t f i r s t , by addressing the 

defendant person ally in open co urt, a ft e r he has

been placed under oa th, determin ing th at the 

plea is vo luntary and not the re sult of for ce 

or threats or of promises apart from a plea 

« agreement. The co ur t sh all also in quire as to

whether the defendant's willin gness to plead 

g u ilty or nolo contendere re su lts from p ri o r 

disc ussions between the attorney fo r the 

government and the defendant or his attorn ey."

To avoid possible danger to cooperating in div id uals and 

to conform with the language of 11(e )(5), we suggest th at Rule 11(e)(2 ) 

be mo dified to read as fo llo w s:

"(2) NOTICE OF SUCH AGREEMENT.-If a plea 

agreement has been reached by the partie s which 

contemplates en try of a plea of g u il ty or nolo 

contendere in the expecta tion th at a specific 

sentence w il l be imposed or th at othe r charges 

before the co urt w il l be dismissed , the co urt 

sh all requ ire the disc losu re of the agreement 

in open court, e x c e p t fo r good cause shown,

at the time the plea is offere d. Thereupon the 

co urt may accept or re je ct the agreement, or 

may defer it s decis ion as to acceptance or 

re je ct io n u n ti l the re has been an op po rtu nity 

to consider the presentence re port ."

Rule 11(e) (6) should be amended to read as fo llo ws:

" I f a plea dis cussion does not re su lt in a 

plea of g u ilty or nolo contendere or i f a 

plea of g u ilty or nolo contendere is not 

accepted or is withdrawn , or i f judgment on 

a plea of g u ilty or nolo contendere is reversed

(R. 11 , p. 3)
76

H. M. Ray, N. D. M is si ss ip p i (c o n t' d .) :

on direct or co lla tera l review, neither the 

plea discussion nor any resu ltin g agreement or 

plea shall be admissible against the defendant 

1n any crim inal or c iv il action or adminis trative 

proceeding, not only 1n U. S. d is tric t courts 

but 1n a ll pr ob ab ility in the prosecution of 

minor offenses before magistrates [see Rules 1, 

2(a) and 3(a ), Rules of Procedure fo r Tria l of 

Minor Offenses]."

Ch arles H. An de rso n, M. D. Te nn essee:

The other proposals are sa lutary, partic ula rly Rule 

I l's affirmation of plea bargaining. This is re a lis ti c and 

progressive. »

Harry D. Stew ar d, S. D. C a li fo rn ia :

Corcerning plea bargaining, I feel stron gly that th is 

should be a matter of pub lic record as much as the circumstances 

w ill allow. I think the public has more misunderstanding about 

plea bargaining and chamber conferences with judges than any other 

area of criminal law. In my d is tric t. a ll AUSAs are directed to 

keep an accurate writte n record of plea bargaining, Including the 

reasons why any reduction is made. Where pos sible, they are also 

to state th is fo r the record in open court. Likewise, unless the 

judge in sist s to the contrary , or the circumstances otherwise make 

i t impossible or unnecessary, a ll conferences with the court in 

chambers are on the record with the court rep orter present. I 

have heard the debates about court par tic ipat ion in plea bargaining 

and have yet to come to a conclusion in th is area. However, as 

prosecutors, I feel that we should do everything to bring plea 

bargaining and court conferences out into the open so that the 

public w ill know what has transpired in a given case.

(R. 11, p. 4)
77

E a rl J . S i l b e r t , D. C .:

This proposed Rule establish es specific c rit e ria fo r 

the acceptance of a plea o f g u ilty and sets fo rt h specific co nd ition s 

re gu latin g plea bargaining and insu rin g fu ll disc losu re of plea 

agreements. While we ge ne rally support th is ru le , we would suggest 

a few mod ifica tio ns :

1. We continue to be lie ve , as has been the polic y of the 

Department of Ju stice since 1958, th at a plea of nolo contendere should 

not be accepted by the Court with ou t the consent of the Government.

Thus, we would propose th at the f ir s t sentence of Rule 11(b) be amended

« to read: A defendant may plead nolo contendere on ly with the consent

of the Court and the attorney fo r the Government.

2. The plea agreement procedures set fo rt h in Rule 11(e)

(2 ), (3) and (4) should make cle ar th at the Court may only de cline

* to accept a plea agreement on the ground th at the agreed upon

maximum sentence is inadequate; the Court should not be permitte d 

to re je ct the agreement on grounds th at the number of counts or 

charges to be dismissed upon motion of the Government is either too 

le nie nt or too re s tr ic ti v e . For while in the sentencing area the 

Co urt's pre rogatives are ob vio usly paramount, i t is eq ua lly obvious 

th at no ru le should be promulgated which in serts the judgment of the 

Court in areas cle arly reserved fo r the exerc ise of pros ec utorial 

dis cr etion ( i.e . , the de cis ion to charge or to dismiss cha rges). The 

proposed ru le would accomplish an unwarranted infring em en t by the 

ju d ic ia ry on the powers of the executive . I t c o n flic ts with the 

tr a d itio n a l sep aration of powers between the ju d ic ia ry and the executive 

and is ther efore unconstitu tional. "[A]s an in ci dent of the Co nstitu tional sep aration of powers, . . . the Courts are not to in te rf ere 

with the fre e exercise of the attorneys of the United States in th e ir 

co ntrol over crim inal pros ec utions ." United States v. Cox, 342 F.2d 

167, 171 (5th C ir. 1965), c e rt, denie d, 381 U.S. 935 (1965), quoted 

with approval in Newman v. United States, 382 F.2d 479, 481 (D.C.

C ir. 1967)(Burger, J .). 1/ The complete dis cre tion vested in the

1/ Cf. , United States v. Ammidown, U.S. App. No. 72-1694, decided 

Nov.” 16, 1973, Pet, fo r Rehrg. En Banc denied, May 10, 1974. While 

we agree with the holdin g in Ammidown reversing appella nt's ju ry 

co nv ictio n fo r f ir s t degree murder where the tr ia l judge declin ed 

to accept a plea to second degree murder agreed upon before tr ia l 

by the prosecutio n and defense, we are tro ub led by dic ta of the 

< Court suggesting th at a tr ia l judge may withho ld approval of a

g u il ty plea where he fin ds i t does not adequately pro te ct the pu blic 

in te re st. See s li p op. at p. 11. That decis ion is fo r the prosecuto r, 

not the tr ia l Co urt, and Rule 11 should so re fl e c t.

(R. 11 , p. 5)
Ea rl J. S ilb e r t, D. C. (c ont1d .) :

exe cutive over crim inal prosecutions has been acknowledged by the 

Courts, p a rt ic u la rl y in the area of whether to accept a plea to a 

lesser offense from one co-defendant but not the oth er, or whether 

to prosecute a defendant on a less er or more serious charge. See 

In Re P etition of United States fo r W rit of Mandamus, 306 F.2d 737 

T9th C ir. 1962); Newman v. United Sta te s, supra ; Hutcherson v. 

United States, 345 F.2d 964 (D.C. C ir. 1 9 6 Therefore we wou1d 

suggest the fo llo win g amendments to Rule 11(e):

a. The la s t sentence of Rule 11 (e)(2 ) should be amended 

to read: Thereup on th e Court sh a ll ac ce pt th e pl ea unle ss i t

r e je c ts th e se nte nce agree d upon, or a le s s e r se nte nce ; in th e

a lt e rn a ti v e th e Co urt may defe r i t s d ecis io n as to ac ce pt an ce or

re je c ti o n o f th e ple a u n ti l th ere ha s been an opport unit y to

co nsi der th e pr es en te nce re port .

b. Rule 11(e)(3 ) should be amended to read: i f th e

Court ac ce pts th e p le a , i t sh a ll in fo rm th e def en da nt th a t i t w il l

embody in th e jud gm ent th e se nt en ce pro vi de d fo r in th e ple a

agr eem ent or an ot he r se nt en ce more fa vora ble to th e de fe nd an t

than pr ov id ed fo r in th e pl ea ag reem en t.

c. Rule 11(e)(4 ) should be amended to read: i f th e

Co urt r e je c ts th e p le a , i t sh a ll in fo rm th e p a rti e s o f th is fa c t,

advi se th e de fe nd an t per so nally in ope n court th a t th e Co urt i s

no t bound by th e ple a ag reem ent, a ff o rd th e de fe nd an t th e op po rtu n it y to then withdraw h is ple a , and advis e th e def en da nt th a t

i f he p e r s is ts in h is g u il ty ple a or ple a o f no lo co nt en de re th e

se nte nce in th e ca se may be le s s fa vora ble to th e de fe nd an t tha n

th a t co ntem plat ed by th e pl ea ag reem en t.

3. While we agree th at conve rsation s oc curring during 

inform al plea discussions should not be admlssable 1n evidence, 

we believe th at statements made by a defendant, with the advice 

of cou nsel, vo lu n ta ri ly and 1n open co ur t during the course of 

an actual plea , should be admissible, at le ast to impeach the 

defendant 1f he subsequently attempts to withdraw his plea and 

to take the stand in h1s own be ha lf at t r ia l. There fore, we 

would propose th at Rule 11(e)(6) be amended to read as fo llo ws: 

In ad missibi lit y o f Plea Discu ssions.—Evidence of a plea of guilty

la te r withdrawn, or a plea of nolo contendere, or of an offer to

plead guilty or nolo contendere to the crime charged or any other

crime, or o f out o f Court statements made in connection with any

o f the fore going ple as or offers , is not adm issible in any c iv il
Earl J . S i l b e r t , D. C. ( c o n t 'd . ) :

p ro c e ed in g , o r in th e G ove rn m en t's ca se in c h ie f in an y c rim in a l

pro ceed in g a g a in st th e pers on who made th e ple a o r o f f e r .

Ho we ver, a sta te m en t made by a d e fe n d a n t in op en c o u rt an d in

th e p re se n ce o f counse l a t th e ti m e a p le a o f g u i lt y i s ta ken

i s a d m is sib le in a su bse guent c rim in a l pro ceedin g to im pe ac h

th e d e fe n d a n t wh ere h is te sti m o n y a t th e pro ceed in g v a r ie s

m a te r ia ll y from h is sta te m en t a t th e ti m e o f th e ta k in g o f

th e p le a . (S ee H arr is v . New Y ork , 401 U.S . 222 (1 971).

4. F in a lly, we be lieve as the Adv isory Committee 

suggested (see Advisory Committee Note, to Rule 11, page 14), 

th at i t is a desirab le pr ac tic e th at the defendant be placed 

under oath at the time of his ple a. This w il l help to ins ure 

the defen dant's understanding of the sig nifica nce of his ac tio n 

in determin ing to plead g u il ty , plac ing his statements at the 

time of the taking of a plea on the same fo otin g as his testimony 

in his own defense i f he were to go to t r ia l. There fore, we 

be lieve Rule 11(f) should be amended to read as fo llo ws: 

D et er m in in g Acc ur ac y o f P le a . The C ourt s h a ll n o t e n te r

ju dg m en t upon a p le a o f g u i lt y w it h o u t r e q u ir in g th a t i t be

ta ken un de r o a th and w it h o u t mak in g su ch in q u ir y as s h a ll

s a t i s f y i t th a t th e re i s a fa c tu a l b a s is fo r th e p le a .

Wayman G. S h e rre r, N. D. Ala bama :

This contains nothing of si gnifica nce not already a 

ma tter of pr ac tic e in our D is tric t.

From th e O ffic e o f Jam es R. Tho mp son , N. D. I l l i n o i s :

New Rule 11 continues to perpetuate the plea of nolo 

contendere. The plea of nolo serves no purpose but to permit 

the defendant to avoid the consequences of a g u il ty plea in 

a n cilla ry proceedings. Whatever benefit i t has inures sole ly 

to the defendant, and the plea is a re li c .

That the plea of nolo is an ab su rdity must have been 

recognized by the committee dra ft in g the new rules because they 

contin ue to leave i t to the co urt to decide whether or not to 

accept a nolo ple a. Theore tically , two defendants in dict ed 

toge th er , but arreste d in separate pla ces, and transfe rr in g 

th e ir cases under Rule 20, w il l end up with d if fe re n t ultim at e 

consequences. A ll th is is based sole ly upon the prop en sitie s 

of d if fe re n t judges.
80

From th e O ffic e o f Jam es R. Tho mpson, N. D. I l l i n o i s (c o n t’d . ) :

The plea of nolo is a fic tio n , since fo r the purposes 

of the primary proceeding i t has the exact same fu nction, 

consequence and impact of a plea of g u ilty . In cases of extensive 

frauds and where there are a ncilla ry c iv il proceedings, i t permits 

a defendant to escape with a li g h t sentence and enjoy the fr u it s 

of his offense since the nolo plea is ina dm iss ible as an admission 

again st in te re st in the c iv il case, wh ile the g u ilty plea would 

have been admissible. The new ru le continues to ignore the rights 

of victim s and the higher pu blic in te re st.

New Rule 11(e)(1) excludes the judge from plea bargain ing . *

I t seems to encourage such bargaining between pro secutor and defense 

atto rn ey, but leaves i t to the judge at any la te r time to agree or 

disagree with the plea agreement. The co urt may accept or re je ct 

the agreement as la te as a ft e r the pre paration and his reading of a 

pre-sentence re port. There are too many instances where the delay *

occasioned by these occasions can be ill- a ff o rd e d . A defendant who 

is w il li n g to plead at the beginning of one month may we ll change 

his mind 30 days la te r. This plan has the ca pability of causing 

untold delay.

Part of the foreseeable problem is th at a prosecutor w il l 

completely prepare fo r tr ia l. A fter th is , and on the day before 

t r ia l, there is plea bargaining and a supposed agreement. Subsequently, 

the judge is apprised of the agreement and takes i t under advisement 

u n ti l a ft e r he reads the pre-sentence re port, a ft e r which he re je ct s 

i t , a ft e r which the defendant elec ts to go to t r ia l, ne ce ss ita tin g 

the prosecutor prepare the case from scratch a second time.

In many plea bargaining cases, the grea test in ce ntive to 

the Government is the defendant's co -ope ratio n, which o rd in a ri ly is 

most valuable at the e a rl ie st possible time. The longer the dela y 

between agreement and co -ope ratio n, the sta le r and less valuable 

the inform ation he can provide.

Under new Rule 11 (e )(3), the co urt can accept the plea 

agreement but can subsequently re je ct i t only i f the actual 

dis posi tion is more favorable to the defendant than the one agreed 

upon. In lar ge measure, th is is not much d if fe re n t than the court's 

power to reduce a sentence w ithin 120 days. However, in instances 

of in te ll e c tu a ll y dishonest judges, i t is possible fo r a judge to 

agree to the agreement then intending never to abide by i t . The 

actual th re at, o f course, is a minimal one to us since courts always >

were and should be free to impose whatever sentence they feel 

ap prop ria te.

(R. 11 , P

. 8)
Paul J . Cu rra n, S. D. New York:

This ru le codifie s in pa rt the exis ting pr ac tic e in 

th is D is tric t of our agreeing to accept g u ilty pleas to less 

than a ll the counts in an Indictm ent. However, i t goes beyond 

th at by pe rm itting agreement between the Government and the 

defendant upon the penalty to be imposed, which agreement must 

then be presented to the tr ia l judge and may be accepted or 

re jected by him.

As to the la tt e r pa rt of the new pro visions, we have 

always refused in th is D is tric t to make such agreements and, 

we belie ve , properly so. I t is not seemly fo r the prosecutor 

to agree to attempt to set the punishment of a defendant, nor is 

i t proper fo r us to tr y to bind the judges in any way as to what 

pe na ltie s should be imposed w ithin sta tu to ry li m it s . Of course, 

the Rule does not requ ire us to make such agreements, but the 

le gitim iz ation of such agreements by the Rule w il l put pressure 

on both prosecutors and judges with heavy work loads to agree to 

too l i t t l e 1n order to move another case and avoid a t r ia l.

There are ad dition al s ig n if ic a n t drawbacks in the 

proposed Rule. While the punishment of a defendant has in th is 

D is tr ic t always been the ex clus ive func tio n of the D is tr ic t 

Judge, a determination of the charges to which the g u ilty plea 

is entered has been w ithin the sole dis cre tion of the pro secutor. 

I t is cle ar th at under Rule 11(e)(3 ) the Court w il l now have the 

dis cr etion to accept or re je ct suggestions not on ly as to the 

punishment to be imposed but also the offense to which the plea 

is to be entered. While as a th eore tic al ma tter the re should be 

no ob jection to ju d ic ia l approval of the adequacy of the charges 

to be pleaded to , as a pra ct ic al ma tter the re may be a host of 

reasons beyond both ju d ic ia l ex pe rtise and sensible disc losu re by 

a pro secutor which could prevent a prosecutor and a tr ia l judge 

from agreeing on what the plea to be entered should be. A 

simply example is a case where a dis positio n apparently he av ily 

favo rin g a defendant may be welcomed by the pro secution because 

i t w il l elim inate a need to disc lose the id e n ti ty of an inform ant 

Yet a tr ia l judge w il l not know th is , and fo r the pro secutor to 

expla in i t to the Court w il l re su lt in the very thing which the 

prosecutor has sought to avoid .

A sim ila r d if fic u lty arise s from the requirement in 

Rule 11 (e)(2 ) th at the plea agreement be dis clo sed to the tr ia l 

judge in open co ur t. Frequently a co nd ition of a plea agreement
82

Pa ul J . C ur ra n, S . D. New York ( c o n t' d .) s

w ill be that the defendant act as an informant or furnish information 

and testimony against his criminal associates. To reveal th is in 

open court is lik e ly to resu lt in the complete frustration of 

receiving such assistance from the defendant.

One aspect of the new rule which is partic ula rly 

tro ubling is (e )(6), which appears to provide th at a ll evidence 

arising out of plea neg otia tion s, including a defendant's statements to Government prosecutors or agents, be inadmissible against 

him. Such a contention was recently rejected by the Second Circ uit 

fo r reasons which show the fa lla cy of the provisio n:

"Persky's fu rthe r objection that by 

allowing Green to te stify regarding his 

admissions made at an attempted 's e tt le ­

ment' of the case against him the court #

some how or other involved it s e lf in a 

viola tio n of the Code of Professional 

Re sponsib ility, EC5-9, DR5-1O1, is not 

supported by the cited te st of that Code 

or by opinions issued with respect to i t .

Indeed i t would be a rather extraord inary 

interp re tatio n that would enable a witness 

to te s ti fy to one version of the facts 

without ris king confrontation with a prior 

contradictory statement, whether or not 

given to the prosecutor at an unsuccessful 

plea bargaining session. There is no 

evidence that Persky's prior statement to 

the prosecutor was made 'withou t pre jud ice' 

and i t is doubtful, had such a condition 

been imposed, that the prosecutor would 

have continued with the session."

United States v. Zane, Docket No. 73-2401 (2d C ir ., Ap ril 1, 1974),

Slip Op. at 2509-2510.

Fin ally , the ju dic ia l involvement in plea bargaining 

which Rule 11 provides w ill undoubtedly lead to a whole new area 

of appellate li ti g a ti o n . If a tr ia l judge rejects a plea 

bargaining agreement and the defendant is la te r convicted at tria l 

and is more su bs tantially punished than he would have been under 

the plea agreement, there w ill no doubt be a claim on appeal that 

the tria l judge abused his dis cretion in re jecting the plea *

agreement.

Rule 11 is , therefore, to ta lly meretricious, and should 

be vigo rously opposed despite it s apparent optional form. «

(R. l l , P

. 10)
83

RULE 12

PLEADINGS AND MOTIONS BEFORE TR IAL; DEFENSES AND OBJECTIONS.

Comments o f U. S . A tt o rn e y s

J . P. F a rris , S . D. Te xa s:

We fu rth e r ob se rve th a t Ru le 12 co nce rn in g ple adin gs 

and m ot ions in co rp o ra te s an un ne ce ss ar y q u a li ty o f verb ia ge 

concern in g th e d is c re tio n o f th e go vernment to giv e n o ti c e to 

th ec fefend an t o f s p e c if ic evid ence, o r o f th e defe n d a n t's 

o p p o rtu n it y to move to have th is in fo rm a ti o n d is c lo s e d . I t 

tend s to in cre ase th e amount o f d is co ve ry lit ig a t io n and c e rta in ly 

e s ta b li s h e s s t i l l anoth er p i t f a l l fo r th e le ss experience d 

p ro se cu to r.

R obert W. R u st, S . D. F lo rid a :

The pro posed amendment is s u b s ta n tia ll y u n o b je cti o n a b le . 

P r e tria l pro cedure , although more d e ta il e d g e n e ra lly fo ll o w s c u rre n t 

p ra c tic e . However, th e amendment deals w it h th e pr oce dure to be 

fo llo w e d in th e case where an a lib i de fens e is a sse rt e d , and in such 

a case a fte r th e defe ndant giv es n o ti c e o f such defe nse, th e gove rn ­

ment is re q u ir e d to in fo rm th e defe ndant o f th e s p e c if ic ti m e , da te 

and pla ce a t wh ich th e off ense o ccurr ed. I f a defe ndant can a sse rt 

an a lib i de fens e befo re be ing in fo rm ed by th e go vernment o f th e 

ti m e , pla ce and date o f th e o ff e n s e , then lo g ic a lly he sh ould be 

able to d e ta il h is a lib i befo re be in g so in fo rm ed by th e go ve rnmen t.

H. M. Ray , N. D. M is s is s ip p i:

As an a lt e rn a tiv e to prop osed Ru le 1 2 (c ), i t is 

su gg es ted th a t much dela y wo uld be av oide d i f th e ru le were 

to read as fo ll o w s :

"U nles s oth erw is e pro vid ed by lo c a l r u le , 

p r e - t r ia l motions s h a ll be made in w r it in g 

and f ile d w it h in 14 days a fte r s e rv ic e by 

th e governm ent o f a copy o f th e in d ic tm e n t 

upon th e defe ndant, but th e Court may fo r 

good cause p e rm it such m ot ions to be made 

w it h in a re aso nable tim e th e re a fte r. I f 

a hearing is re q u ir e d , th e C ourt s h a ll 

se t a dat e fo r such h e a ri n g ."

(R ul e 12, pa ge 1)
84

H. M. Ray , N. D. M is s is s ip p i ( c o n t'd .) :

and, 1f such amendment is offe re d, "o r ora l" appearing in 12(b) 

should be deleted.

Proposed Rule 12(d) (2) provides as fo llo w s:

"At the arraignment or as soon th ere after 

as is pr ac tic ab le the defendant may, in 

order to afford an op po rtu nity to move to 

suppress evidence under su bd ivision (b )(3) 

of th is ru le , request no tice of the government's in te ntion to use (1n It s evidence in

chie f at tr ia l) any evidence which the <

defendant may be e n title d to discover under 

Rule 16 subje ct to any releva nt lim ita tio n s 

pre scribed in Rule 16."

I t is recommended th at proposed Rule 12 (d)(2) be deleted. *

I t 1s proposed to add new language to Rule 12 

pro vid ing th at motions to suppress evidence and motions fo r 

severance of charges or defendants "must" be raised p ri o r to 

t r ia l. The amendment fu rt her provides th at to afford the 

defendant an op po rtu nity to raise these ob jections the government may vo luntee r no tic e of it s in te ntion to use ce rtain 

evidence or the defendant may request a no tice of the government's in te ntion to use such evidence. The amendment fu rt her 

provides th at fa il u re to ob ject to the evidence or the jo in der 

before tr ia l "s hall const itute waiver th ere of."

The proposed change is easi ly suscep tib le to the 

in te rp re ta tion th at where the defendant has no no tic e of the 

government's in te ntion to use evidence e ither volunteered by 

the government or furnished pursuant to the defendant's requ est 

th at his fa il u re to ob ject before tr ia l does not waive the 

objection. The amendment should make i t clea r th at where the 

defendant knows or could have known by the exerc ise of due

(R. 12 , p. 2)
85

H. M. Ray , N. D. M is s is s ip p i ( c o n t'd .) s

dilige nc e of the existence of evidence to which he would ob ject 

i f of fe re d by the government at tr ia l when his fa il u re to ob ject 

to the evidence before tr ia l 1s lik ew ise a waiver of the objection. 

Otherwise, in every case the government w il l have to volunteer 

no tic e of it s in te ntio n to avoid the ri sk of having the ob jection 

raised fo r the f ir s t time during t r ia l. I t w il l also put a 

premium on neglect by defense counsel and in eff ect negate the 

prov ision providing fo r a request of no tic e.

The amendment also provides th at "the co urt 

fo r cause shown may gra nt re li e f from the waiver" effected 

by the fa il u re of the defendant to raise ob jections which 

must be made before t r ia l.

To pr ot ec t the government's ri g h t to appeal an 

ord er suppressing evidence under 18 U.S.C. 3731 the amendment 

should provide th at r e li e f from the waiver of ob jections may 

be granted only a ft e r tr ia l by way of a motion fo r a new t r ia l. 

When ob jections are raise d fo r the f ir s t time during the heat 

of t r ia l, counsel and the co urt both us ua lly have to shoot 

from the hip. In th is situation the co urt, concerned with 

"p ro te ct in g the record" and sublim in ally aware th at the 

government cannot complain of e rr o r, tends to aim low.

Furthermore, the witnesses necessary to resolve a collate ra l 

issue such as the le g a lity of a search or seizure are not 

always in attendance at the tr ia l and the government is not in 

a positio n to make a fu ll record on the issue. The government 

is as much prey to " tr ia l by ambush" as the defendant but 

with ou t the equal ri g h t of an appeal. I f the defendant can 

hold back his ob jections u n ti l jeop ardy has attached he can 

ambush the government and cu t o ff it s ri g h t to appeal an 

erroneous ru lin g suppressing the evidence. By postponing 

r e lie f from waiver u n ti l a ft e r t r ia l, the rights of both pa rties 

w il l be adequately protected . As the co urt said in United States 

v. Nolan, 420 F.2d 552, 554 (5th C ir. 1969), in upholding a 

p o s t- tr ia l hearing on a p re -tr ia l motion to suppress:

" . . . I f the re is an a cq u itta l, 

of course, then the question is moot and 

we do n't have any wor rie s; and everybody's 

rights have been preserved. I f there is a 

co nvi ct io n, then a hearing is held . . . to 

determine whether or not the government's 

* asse rtion is corr ect. I f . . . corr ect,

the n, of course, everybody's rights have

(R. 12 , p. 3)

44-625 0 - 75 - 7
86

H. M. Ray , N. D. M is sis s ip p i ( c o n t 'd . ) :

been preserved by le tt in g the co nv ictio n 

stand. I f . . . not corr ect, the n, of 

course, everybody's rights have been 

preserved by the co urt rev ersin g the 

convi ction."

The amendment to Rule 12 provides th at the defendant 

may "request no tic e of the government's in te ntion to use (i n 

it s evidence 1n chie f at tr ia l) any evidence to which the defendant is e n title d to discovery under Rule 16." The prov ision 

au thor izing the government to volunteer no tic e provides th at the 

government may n o ti fy the defendant of it s in te ntion to use 

"s pecifie d evidence ."

The diffe re nce 1n language suggests th at the defendant 

may simply make a broadside requ est in the language of the ru le 

fo r no tice of "any evidence to which the defendant is e n ti tl e d to 

discovery under Rule 16." I f th is 1s a correct in te rp re ta tion i t 

puts upon counsel fo r the government the burden of s if ti n g through 

his fi le s and researching the law to determine what evidence the 

defendant is e n ti tl e d to discover under Rule 16. In the annotations 

to Rule 16, the re are almost f i f t y pages of fine p ri n t summarizing 

adjudicated dis putes over what 1s dis coverable under Rule 16. I f 

government counsel is going to be le f t any time to prepare his own 

case Rule 12 should make 1t cl ear th at.th e defen dant's request fo r 

no tice must be at le ast as specific as his motion fo r dis covery 

under Rule 16.

I t is proposed to change the time fo r making p re -tr ia l 

motions from "befo re the plea 1s entered" to a time set by the 

co urt "a t the time of the arraignment or as soon th ere after as 

pra cticable ." The reason given fo r th is change is "to make 

possible and to encourage the making of motions p ri o r to t r ia l. "

I t is d iffic u lt to understand how th is purpose is 

advanced by making motions due on a la te r date than at pre sent.

The rea l e ff e ct of th is change 1s sim ply to delay the time fo r 

making motions, thus delaying the tr ia l Its e lf . Any change 

should be 1n the opposite d ir ection, toward re quirin g motions 

to be fi le d e a rl ie r ra ther than la te r 1n ord er to hasten the 

tr ia l of cases.

(R. 12, p. 4)
87

H. M. R ay, N. D. M is s is s ip p i ( c o n t’d . ) :

In th is d is tr ic t, the U. S. Attorney serves each 

defendant by mail with a copy of the ind ictme nt as soon as i t 

is returned . He knows we ll in advance of arraignment what the 

charges are and in most cases he has already been arrested and 

is represented by cou nse l. He is in a positio n, th ere fo re , to 

prepare and f ile motions even before arraignment and plea. For 

the very same reason given by the re vis ers , we would recommend 

th at the ru le be changed to read: "Unless otherwise provided 

by loca l ru le , p re -tr ia l motions sh all be made in w ritin g and 

fi le d w ithin 14 days a ft e r se rvice by the government of a copy 

of the ind ictme nt upon the defendant, but the Court may fo r 

good cause permit such motions to be made w ithin a reasonable 

time th ere after. I f a hearing is requ ire d, the Court sh all set 

a date fo r such he aring."

Wayman G. S h e rre r, N. D. Alabam a:

We agree wholeheartedly, es peci al ly with subsections 

(3) and section ( f) .

Earl J . S i l b e r t , D.C .:

1. We believe th at fo r the sake of the effective 

ad ministration of crim inal prosecutions, a ll p re tr ia l motions 

should be raised a ft e r ind ictmen t and p ri o r to t r ia l, except 

where the defendant w il l be prejudice d. Thus, we would propose 

th at the f ir s t paragraph of Rule 12(b) be amended to read:

P r e tr ia l M o ti o n s.— Any d e fe n s e , o b je c tio n , or re q u e st whi ch i s

capable o f d e te rm in a ti o n w it h o u t th e t r i a l o f th e gen era l is s u e

may be r a is e d b e fo re t r i a l by m oti on. M otions may be w r itte n

or o ra l a t th e d is c r e tio n o f th e Judge, and s h a ll be f i l e d a fte r

in d ic tm e n t u n le ss th e d e fe n d a n t can sho w p re ju d ic e from n o t b ein g

a b le to f i l e a m otion b e fo r e in d ic tm e n t. The fo ll o w in g mus t be

r a is e d p r io r to t r i a l : . . .

2. We ob ject to Rule 12(b)(2 ) on the same grounds set 

fo rt h in the A p ril , 1971 Report to the Attorney General Concerning 

Preliminary Draft of Proposed Amendments to the Federal Rules of 

Crim inal Procedure fo r the United States D is tr ic t Courts. See 

pages 7-9. Division (e) of th is Rule indica tes th at general 

auth ority is conferred on the tr ia l co urt to de fer the determination of any p re tr ia l motion u n ti l tr ia l or a ft e r verd ic t. This 

prov ision is p a rt ic u la rl y unfa ir to the Government where it s ri g h t 

to appe al--o r at le ast an eff ective appeal--depends upon whether

(R. 12, p. 5)
88

Earl J . S i l b e r t , D. C. (c o n t’d .) :

the tria l judge rules before or after jeopardy attaches, or before 

or after tr ia l begins or the ve rd ict is returned. See 18 U.S.C.

Section 3731j 23 D. C. Code Section 104. We would therefore 

propose that the fir s t sentence of Rule 12(e) be modified as 

follows : R u li n g on M otion. A m oti on made b e fo re t r i a l s h a ll be

d ete rm in ed b e fo re t r i a l u n le ss th e c o u rt o rd ers th a t i t be

d e fe rr e d fo r d e te rm in a ti o n a t th e t r i a l o f th e genera l is s u e o r

u n t il a f t e r v e r d ic t, b u t no su ch d e te rm in a ti o n s h a ll be d e fe rre d

wh ere th e ti m in g o f th e r u lin g on th e m ot io n i s d e te rm in a ti v e o f

th e r ig h t o f a p a rt g to a p p ea l.

*

F

*

(R. 12 , p. 6)
89

RULE 12.1

NOTICE OF ALIBI.

Comments o f U. S. A ttorn eys

J. P. F a rris , S. D. Texas :

Rule 12.1, Notice of A li b i, is a nice the ory and tho ught, 

but we feel th at i t w ill, as a pra tical matter, be unworkable, and 

do not anticip ate th at the defendant w il l be gettin g anything oth er 

* than inform ation from the government, includ ing names and addresses

of witnesses, and then we pre dict fu rt her th at the courts w il l water 

down the defen dant's recip rocal ob lig atio ns to supply us with names, 

dates, tim e, and places. The dangers are too gre at to warrant the 

« promulgation of th is part ic ula r ru le .

Ro be rt J. Roth, D. Kansas:

Oppose disclosu re of id e n ti ty of government witnesses. 

Disclosure in vites harassment, in tim id ation or elim in atio n of 

government witnesses. Witnesses may be more re lu cta nt to cooperate 

i f disc losu re allo wed. Encourages manufacturing of defenses.

Wayman G. S h err er, K. D. Alabama:

No serious disagreement here, except th at sanctions 

imposable under 12.1(e) (fa ilu re to comply) would seem to de tract 

from, ra th er than ass is t the search fo r the tr u th , and in a 

situation where th is ru le was invoked and enforced; i t is believed 

th at a bare showing by defendant of prejud ice hereby would lead to 

in st ant reversa l by Court of Appeals, fo r "abuse of dis cre tion". 

(See subsection 12.1( f3 )

Ea rl J. S ilb e r t, D. C.:

We ob ject to th is form of a no tic e of a li b i ru le because 

i t permits the defendant, by in dic ating his in te ntion to re ly on 

a defense of a lib i, to in e ff e ct demand the disclosu re of the names 

and addresses of Government witnesses. Inasmuch as we vigo rous ly 

oppose those po rtion s of the proposed amendments to Rule 16 which 

would ge ne rally permit such discovery, fo r reasons noted below, 

we lik ew ise strenuously oppose a form ulation of an a li b i no tice 

ru le which w il l permit sim ila r dis covery at the dis cre tion of the 

defendant. We would propose one of two altern atives:

(R ule 1 2 .1 , pa ge 1)
90

Earl J . S i l b e r t , D. C. ( c o n t'd .) :

a. Adoption of a ru le sim ilar to Rule 2-5(b) of the 

United States D is tric t Court fo r the D is tric t of Columbia. A 

copy of th at ru le is appended hereto. (Copy of ru le not included 

in these comments; origin al sent to Mr. Ronald L. Gainer, Ac ting 

Chief, Legis latio n and Special Projects Se ction, Crim inal D iv is io n.)

b. Amendment of proposed Rule 12.1(b) to read as fo llo ws:

D is c lo su re o f In fo rm a ti o n and W it n e s s e s .— Upon r e c e ip t o f n o tic e

th a t th e d efe n d a n t in te n d s to r e ly upon an a l i b i d e fe n se , th e

a tt o r n e y fo r th e Go ver nm ent s h a ll in fo rm th e d efe n d a n t in w r itin g *

o f th e s p e c if i c ti m e , d a te , and p la ce a t whi ch th e o ffe n s e i s

a ll e g e d to ha ve be en co m m itte d. The d e fe n d a n t s h a ll th en in fo rm

th e a tt o r n e y fo r th e Gover nment in w r itin g o f th e s p e c if i c p la c e

a t wh ich he c la im s to ha ve be en a t th e ti m e o f th e a ll e g e d o ffe n s e . F

W ithin h is d is c r e tio n , th e a tt o r n e y fo r th e Go vernme nt may th en

f i l e a dema nd fo r d isc lo s u re o f th e nam es o f th e d e fe n d a n t’s a l ib i

w itn e s s e s . Upon th e re c e iv in g o f su ch a dema nd, th e d efe n d a n t

s h a ll in fo rm th e a tt o r n e y fo r th e Go vernme nt in w r itin g o f th e

nam es and a d d resses o f th e w it n e sse s upon whom he in te n d s to r e ly

to e s ta b lis h su ch a l i b i . Upon r e c e iv in g t h i s in fo r m a ti o n , th e

a tt o r n e y fo r th e Go ver nm ent s h a ll in fo rm th e d efe n d a n t in w r itin g

o f th e nam es and a d d re ss es o f th e w it n e ss e s upon whom th e Go vernme nt

in te n d s to r e ly to e s ta b lis h th e d e fe n d a n t' s p re se n ce a t th e sc ene

o f th e a ll e g e d o ffe n s e .

Pa ul J . Cur ra n, S . D. New Yo rk :

This Rule appears to benefit the Government by re quirin g 

a defendant to fu rn is h, in advance of t r ia l, the partic ula rs of any 

a li b i defense he proposes to as se rt. In fa c t, however, the prov isions 

o f the Rule w il l re su lt in considerab le harm to the Government in 

most cases and l i t t l e be nefit to i t .

The ru le provides th at i f a defendant n o tifie s us th at 

he w il l as se rt the defense of a lib i, " . . . the government sh all 

inform the defendant of the specific tim e, date and place at 

which the offense is alleged to have been com mitted." Rules 12.1(a) 

and (b). In other words, the Government must te ll the defendant 

ex ac tly when and where the Government intends to prove th at he 

committed the crime charged. While i f , of course, the crime is 

something li k e a bank robb ery, the ind ictmen t w il l have already

(R. 1 2 .1 , p. 2)
91

Paul J . Cu rra n, S. D. New York (c o n t' d .) :

dis clo sed most of th is in fo rm atio n* , and the re is l i t t l e to be

* But see next paragraph.

said again st disclos ing the re st. However, 1n a consp iracy case a 

defendant w il l obtain from the Government's response to his no tic e 

of a li b i defense a good idea of ex ac tly who the pote ntial government 

witnesses are (see also Rule 16(a )(1)(E)) and also something he gets 

under no other present or amended ru le --substa ntial foreknowledge of 

the Government's evidence again st him by the disc losu re of when and 

where he particip ate d in the conspiracy. And there is nothin g to 

prevent a defense lawyer from serving a no tic e of a lib i, ge tting 

the response, and then abandoning his a li b i defense. Indeed, i t is 

ha rdly cl ear how a defense attorney can determine in most cases 

whether to asse rt an a li b i defense u n ti l he known a ll the Government's 

evidence.

To what exten t th is same problem w il l aris e on substan tive 

counts depends on the pre cis e meaning of th at prov ision in Rule 12.1(b) 

which requires the Government to serve no tic e of "the specific tim e, 

date and place at which the offense 1s alleg ed to have been committed". 

As a hyp oth etic al, A and B are charged with robbing a bank on 

January 2, in vio la tion of Sections 2113(a) and 2 of T it le 18,

United States Code. The evidence shows th at only B went to the 

bank, but th at on January 1 A bought the pis to l and the mask fo r B 

to use the next day at the bank. A serves a no tice of a li b i defense. 

Under Rule 12.1(b) i t is not at a ll cle ar whether the Government is 

to respond with the date, time and place of the actual robbery or 

with the date, time and place of the acts which w il l be used to 

show th at A was an aide r and abettor. I f the forme r, then

Rule 12.1 is meaningless in many cases. I f the la tte r , then 

in substantive crime cases the ru le w il l provide the same 

p re tr ia l disc losu re of the Government's evidence th at i t w il l 

in consp iracy cases. And, of course, the hypo thetica l above 

is the sim ple st of a ll fa ct pa tte rns. How much must be rev ealed , 

whether as to princip als or accomplices, in cases in which the 

substan tive crime is committed over tim e, such as mail fraud or 

wire fr a u d -- ju st the partic ula rs regard ing use of the mail or the 

wires or a ll the events estab lis hing the fraud? The examples are 

legion --Tr av el Ac t, tax evasion, il le g a l gambling business (Section 

1955), etc.

(R. 1 2 .1 , P

. 3)
92

P a u l J . Cur ra n, S . D. New Yo rk ( c o n t 'd . ) :

Fin ally , the disclosure of the Government's witnesses 

required by Rule 12.1(b) is subject to the same cr iticism s set 

fo rth in the discussion of Rule 16(a)(1)(E) supra.

This Rule's benefits to the Government w ill prove to be 

illu sory and it s detriments severe.

*

r

(R. 1 2 .1 , p. 4)
93

RULE 12.2

NOTICE OF DEFENSE BASED UPON MENTAL CONDITION.

C ons en ts o f U. S . A tt o rn e y s

E arl J . S i l b e r t , D. C.s

While we do no t obje ct to the Ru le, we belie ve th a t the 

Adv isory Committee Note to d iv is io n (c ) should re fle c t th a t th is 

d iv is io n is no t intended to prec lude the Co urt from ord ering more 

than one p sych ia tr ic ex am ination .

1

(R ul e 1 2 .2 , pa ge 1)
94

RULE 15

DEPOSITIONS.

Comments o f U. S. Atto rn ey s

Rich ard L. Thornburgh, N. D. Pe nnsylva nia :

Rule 15 presents a radica l departure from the present 

ru le which allo ws depositions only in exceptional circumstances, 

in ord er to prevent a fa ilu re of ju s ti c e . The proposed amendment 

would allow them "whenever due to special circumstances of the 

case [th ey ar e] in the in te re st of ju s ti c e ". I t would fu rt her 

allow such deposition s to be used as substantive evidence i f the 

witness is unavailable or i f he give testimony at the tr ia l or 

hearing inco ns istent with his de po sitio n, or i t may be used fo r 

co ntradictin g or impeaching the testimony of the witness. One 

can envis ion resourceful defense counsel taking such depositions 

simply fo r discovery purposes or to la y the groundwork fo r 

crea tin g rea l or imaginary co n flic ts in the witnesses' tr ia l 

testimony.

Donald E. Walter, W. D. Lou isia na:

I agree with Thornburgh.

W. C. Smitherman, D. Arizon a:

I adopt Thornburgh's comments concerning these amendments.

Rob ert E. Johnson, W. D. Arkansas:

I would suggest th at any de po sition ru le should (1) 

requ ire presence of the accused, and (2) be supervised by either 

a U. S. d is tric t judge or ma gis trate to prevent "badgering" 

witnesses by either sid e. I have pe rson ally been to ld by many 

witnesses th at they w il l not become inv olved as a witness again 

because of th e ir treatm ent in court, p a rt ic u la rl y when harassed 

by successive deposition s in c iv il cases.

(Rule 15, page 1)
95

Rober t G. R en ner, D. M in ne so ta :

I approve of United States Attorney Thornburgh's comments 

on proposed changes to Rule 15.

Rule 15 is most cy nic al. I t grants the rig h t to the 

government to depose a witness a ft e r his name and address have been 

dis clo sed. We are permitted to depose a person to avoid the consequences of his ulti m ate u n a va ila b ility. I t is l i t t l e com fort 

to a witness th at his words w il l li v e on 1n a de po sitio n. Witnesses 

are not re lie ve d of pressure merely because th e ir testimony is 

certain .

* LEAA gra nts are being made to develop programs to better

care fo r witnesses. Our ju stice system has been rig h tl y c rit ic iz e d 

fo r the curso ry manner with which we tr e a t them. They are summoned 

in to co urt, sent home during delay s, sent back and fo rt h with ou t

■v proper expla nation and gene rally subjected to In d iffe re n t bureaucra tic

attitudes. The proposed ru le is a step backwards fo r the citiz e n 

who is already afr aid of the ju stice system.

The ru le permits deposing in "spe cia l cases." Mo defense 

attorney w il l ca ll his case ir.ything but "s pecia l." No defense 

attorney w il l l is t testimony oth er than as "c ru c ia l. "

The Jencks Act is frustrate d because the witness statements 

are subject to disc losu re by reason o f. the compulsory turn ing over 

of p ri o r statements of the witnesses at the time of the de po sitio n.

J . P. F a rris , S . D. Tex as:

As to Rule 15 re la ting to de po sitio ns , we see grave 

dangers in th is area. While we would not oppose giving the 

government the ri g h t to a deposition in exceptio nal circumstances, 

we feel th at the ru le should be le ft as is . The theory th at Rule 

15 w il l elim in ate the problems incidenta l to sup plying a witness 

l is t under Rule 16 is fo lly , in th at Rule 15 require s the no tice 

of the time and pla ce, and the name and address of the persons 

to be deposed. Ob viously, in a situation where a witness is in 

danger of being liq uid ate d, i t would sim ply be done at an e a rl ie r 

stage in the proceedings, to -w it , the de po sition stage. Also, 

there are problems raised in connection with the constitu tional 

ri g h t of co nfronta tio n.

(R. 15, P. 2)
96

Rober t W. R u st, S . D. F lo rid a :

Much of th is amendment is unobjec tionable . However, the 

language "whenever due to special circumstances . . . " should be 

de fin ed , or at le ast be narrowed by some gu idelines . The language 

in question, i f broadly in te rp re te d, w il l s ig n if ic a n tl y delay the 

tr ia l of crim inal cases, fo r the amendment als o provides th at 

" . . . a de position sh all be taken and fil e d in the manner provided 

in c iv il actions . . ." This means th at notices of de position s must 

provide s u ff ic ie n t time fo r a witness to trave l (ofte n long dis tances) 

to the place designated. Time w il l also be required to allow those 

witnesses who do not wish to waive sig nature to read and approve 

(o r disapprove) the tr a n scri p t. Time w il l also be require d to sett le 

problems th at w il l aris e in the course of de po sitio ns , such as refusal *

of a witness to answer part ic ula r questions. Since ob jections must 

be sta ted at the time of the deposition tes tim ony, i t is clea r that 

on ly an attorney thorou ghly fa m ilia r with the case could handle the 

de po sitio n. I t would appear th at de position taking w il l become a *

sig n ific a n t func tio n of both the United States Attorn ey's o ff ic e 

and the pu blic defen der's o ff ic e . The cost of each crim inal case 

w il l rise substa ntially because of the increased witness expense fo r 

trave l and co urt repo rter fees , and the need to make s ta ff increases.

An ad ditio na l comment is directed to th at por tio n of the 

amendment which is contained in subparagraph (d )(2) to the eff ect 

th at the government is req uired to turn over to the defendant fo r 

use at the de position any statements of the witne ss. This would 

appear to c o n fl ic t with 18 U.S.C. 3500 which provides th at such 

statements be turned over a ft e r the witn es s's d ir e ct testimony at 

the t r i a l .

Ha rry D. Ste w ard , S. D. C a li fo rn ia :

I wholehearted ly support the proposed modifica tio n to 

Rule 15 allow ing the government to take de po sitions . On numerous 

occasions we have f e lt th at deposition s would be hig hly de sirable, 

but have been unable to secure them as Rule 15 is a one-way str eet. 

I do not feel th at most federal judges would allow defense counsel 

to u til iz e deposition s simply fo r discovery purposes or to lay the 

ground work fo r impeachment. I feel the l i t t l e we los e by 

expanding the co urts' dis cre tion is more than o ff se t by our ri g h t 

to secure and use, i f necessary, depositions in certain cases.

I p a rt ic u la rl y have in mind the foreign witness who refuse s to 

come to the United States or the witness such as the owner of the 

car in a Dyer Act who resides several thousand miles from the 

place of tr ia l and whose appearance would be both expensive and 

onerous.

(R. 15, p. 3)
97

V ic to r R. O rt ega, D. New M ex ico:

\fi& are very much opposed to the new ru le with respect 

to de po sitio ns . The term "spe cia l circumstances" is much too 

vague and we be lieve th at deposition s w il l begin to be taken fo r 

the purposes o f discovery.

Natu ra lly the giving of the name and address of each 

person to be examined is a serious problem in many crim inal cases 

and steps should at leas t be taken to insure the sa fety of the 

witn esses.

C harl es H. A nder so n, M. D. Ten nes se e:

While on balance taking o f deposition s w il l probably 

fav or the government, i t could be abused i f the only c rit e ria 

were the vague words "i n the in te re st o f Justice."

I suggest c rit e ria sim ilar to the Rules of C iv il 

Procedure, Rule 32 (a )(3), plus an additi on al ground: "t hat the 

witnes s' testimony is co rrob orative or circum sta ntial."

This would requ ire an amendment to the proposed Rule 

15(G), "U n a va ila b ility."

S ta n P it k in , W. D. W as hi ng to n:

Generally we see problems under Rule 15(d) as to 

ob jections and p a rt ic u la rl y under 15 (d )(2) . How do you enforce 

15(d)(2 ) with ou t a judge the re to ru le when one attorney te ll s 

his c li e n t not to answer. Requiring an answer to be ruled on 

la te r at tr ia l in a crim inal case is a l i t t l e d iffe re n t from a 

sim ilar procedure in a c iv il case, since many times the refusa l 

to answer in a crim inal case 1s based on a claimed constitu tional 

basis . Ob structive counsel could make these deposition s imp ossible.

Also, the ru le does not apply we ll to hostile witnesses. 

Consider the defendant who obtains the l i s t of government witnesses, 

names them as his witnesses, and moves to depose them under the 

guise of perpe tua ting testimony but re a lly fo r discovery.

* W il li am D. K e ll e r , C. D. C a li fo rn ia :

At the very le ast, the language of the new Rule 15 

should u til iz e the language of the old Rule 15 in regard to the 

requirement th at the depo sition can be ordered only " . . . a ft e r

(R. 15, P

. 4)
98

W illi am D. K e ll e r , C. D. C a li fo rn ia :

the filin g of an ind ictme nt or inform ation. . . ." This language 

appears in both the old Rule 15 and in T it le 18, Section 3503.

We are cu rr ently fac ing pressure from our co ur t to take deposition s 

of alie n ma terial witnesses in smuggling cases soon a ft e r the 

arr est of the alie n smugglers and prior to indictmen t. Such 

deposition s should not be ordere d, i f ordered at a ll, u n ti l the 

charges are fi n a ll y framed and counsel have had more adequate 

op po rtu nity to prepare th e ir cases. The wording of the new Rule 

15 would encourage deposition s at a premature stage.

The extensive use of depositions contemplated by the *

changed rules w il l pose numerous problems. At le ast some of them 

could be reduced i f the ru le made e x p li c it prov ision fo r ready 

co urt review of objec tio ns , refusa ls to te s tif y , questions of

immunity, and claims of privilege. *

He nry A. Schw art z, E. D. I l l i n o i s :

Expresses the concern th at unless fu rt her re str ic tio n s 

are placed in the proposed ru le there w il l be tremendous added 

ad ministrat ive needs, delays in tr ia l and abuses in the takin g of 

depositions .

H. M. Ray , N. D. M is s is s ip p i:

I t is suggested th at Proposed Rule 15(a) be modified 

as follo ws to more cle arly conform to the language of 18 U.S.C.

3503:

"(a) WHEN TAKEN.--Whenever due to special 

e xc e p ti o n a l circumstances of the case i t is 

in the in te re st of ju stice th at the testimony 

o f a prospective witness of a pa rty be taken 

and preserved fo r use at t r ia l, the co urt 

a t an y ti m e a fte r f i l i n g o f an in d ic tm e n t o r

in fo rm a ti o n may upon motion of such pa rty and 

no tice to the parties order th at testimony of 

such witness be taken by depo sition and th at 

any designated book, paper, document, record, 

reco rding, or othe r ma terial not privile ged,

be produced at the same time and place. I f *

a witness is committed fo r fa il u re to give 

bail to appear to te s tif y at a tr ia l or

(R. 15, p. 5)
99

H. M. Ray, N. D. M is sis sip p i:

hearing, the co urt on w ritten motion of the 

witness and upon no tic e to the partie s may 

d ir e ct th at his de po sition be taken. A fter 

the depo sition has been subscribed the co urt 

may discharge the witn es s."

In re co gn ition th at de position s are to be taken only 1n 

"exceptional circumstan ces," i t 1s believed th at the ends of ju stice 

would be best served by ju d ic ia l supervisio n of one knowledgeable in 

cr im inal law. The proposed ru le would grant to a defendant rights 

not accorded to him under exis ting law , 18 U.S.C. 3500; i t 1s, 

th ere fo re , suggested th at Proposed Rule 15(d) be modified to read 

as fo llo ws:

"(d) HOW TAKEN.--Subject to such ad ditio na l 

co nd ition s as the co ur t sh all prov ide, a 

depo sition sh all be taken and fil e d 1n the 

manner provided in c iv il ac tio ns except as 

otherw ise provided in these ru le s, provided 

th at (1) in no event sh all a de po sition be 

taken of a pa rty defendant with ou t h1s consent, 

and (2) the scope and manner of examination 

and cross-exa min atio n sh all be such as would 

be allowed in the tr ia l its e lf, and (3) th e

d ep o si ti o n sh a ll be ta ke n b efo re a United

S ta te s D is tr ic t Judge or United S ta te s

M agis tr ate . A ft e r a w it ness bei ng deposed

by th e United S ta te s has t e s t i f i e d on d ir e c t

ex am in at io n, upon re quest o f th e de fe nda nt or

h is counse l, th e United S ta te s sh a ll pro duce

any st a te m en t, as d efi n ed in 18 U. S.C . 350 0,

to which th e de fe nd an t would be e n title d a t

t r i a l ."

Ro be rt J. Rot h, D. Kansas:

Should provide th at deposition s of prison er 

witnesses should be taken only at place of confinem ent. 

Otherwise, marshals would have to be pre sent. Oppose 

broadening of de po sition ru le except to allow government 

to take deposition s as defendants are now able to do.

(R. 15, p. 6)
100

Wayman C. S h err er, N. D. Alabama:

Too li b e ra l. A crim inal ju ry can best evaluate a witness 

and his c re d ib il it y by viewing him, his appearance, his demeanor.

We believe th is fu rt her undercuts the a b il it y of the government to 

put on a stra ightforw ard , be lievable prosecutive case. Query: In 

the case of a coached, lying or evasive defense witn es s, how do 

you re a lly e ff e ctive ly crossexamine a deposition?

Ea rl J. S ilb e r t, D. C.:

While we gene rally favo r the proposed amendments to 

Rule 15, we recommend th at the second sentence of Rule 15(d) be 

amended to read as fo llo ws: The p a rti e s a t whose in sta n ce th e

deposi ti on i s take n sh a ll made avail able to th e op po sing part y

or h is co un se l fo r ex am ination and use a t th e ta kin g o f th e

deposi ti on any st ate m en t o f th e w itnes s be in g depo sed whic h i s

in th e po ss es si on o f th e p a rt y a t whose in sta n ce th e deposi ti on

i s take n and to which th e op po sin g part y would be e n title d at

th e tr i a l , pu rs ua nt to IB U.S. Code Secti on 3500 or Rul e 16 (b )( 1)

(D) o f th ese ru le s.

This mod ifica tio n is recommended in view o f our po sitio n 

th at Rule 16(b) (1) should contain an ad ditio na l paragraph, (D), 

affor ding the Government the same op po rtu nity fo r access to the 

p ri o r statements of a defense witness a ft e r th at witness has 

te s ti fi e d on d ire ct examination as the Jencks Act (18 U.S.C.

Section 3500) affo rd s the defense with reference to p ri o r sta te ­

ments of Government witnesses a ft e r they have te s ti fi e d . See 

State v. Montague, 55 N.J. 387, 262 A.2d 398 (1970); People- ?. Sanders, 110 I l l . App. 85, 249 N.E.2d 124 (1969); People v?

Damon, 24 N.Y. 2d 256, 247 N.E. 2d 651 (1969); and the Government s P etition fo r Rehearing En Banc in United States v.

Anthony Wrig ht, __ U.S. App. D.C. , 489 F.2d 1181 (1973),

appended hereto. (These are not included in these comments; 

origin al sent to Mr. Ronald L. Gainer, Ac ting Chief, Le gislation 

and Special Proje cts Se ction, Crim inal D iv is io n.) We have proposed 

below the ad ditio n of such a section to Rule 16 (b)(1 ) and our 

proposed mod ifica tio n of Rule 15(d) is co ns istent with th at ad dition . 

W illi am S ta ffo r d , N. D. F lo rid a :

We have a situation that has arise n in Florid a which 

is pertinen t to proposed Rule Number 15.

(R. 15 , p. 7)
101

W il li a m S ta ff o r d , N. D. Flo rida ( c o n t'd .) :

Rule 3.190(1) of the Flor ida Rules of Crim inal Procedure 

provides as fo llo ws:

" ( I) At any time a ft e r the filin g of an indictmen t, 

in form ation, or a ffid a v it upon which a defendant 1s 

to be tr ie d , i f he sh all s a tisfy the co urt by his 

oath in w ri ti n g , or by the a ff id a v it s of cre dib le 

persons, th at the testimony of an absent person is 

material and necessary to his defense, and th at such 

witness resides beyond the te r rit o ria l ju ris d ic ti o n 

of the co urt or is so sick and in firm th at with 

diligence his attendance cannot be procured at the 

t r ia l, the co urt upon the proper applic atio n o f the 

accused, or his attorn ey, sh all order th at a commission be issued to take the depo sition of such wltnesss 

to be used in the t r ia l. I f the applic atio n is made 

w ithin ten days p ri o r to the tr ia l date the co urt may 

in the exercise of sound dis cre tion deny such applic ation.

(2) I f a defendant desires to perpetuate the testimony 

of a witness liv in g in or out of the sta te , whose 

testimony is material and necessary to his defense, 

the same proceedings sh all be follow ed as set fo rt h 

in sub-section (1) he reof; with the exception, however, 

th at the testimony of such witness be taken before an 

o ffic ia l co urt re port er, tra ns cribed by him, and fi le d 

in the tr ia l court ."

P rim arily through the ve hicle of subparagraph (1 )(2) 

the Pu blic Defender has developed a pa tte rn of taking the deposition s 

of a ll stat e witnesses; in the stat e pr ac tic e in Flor ida the state 

must fu rn ish to the defendant a l i s t of a ll of It s witne sses, the 

same as proposed Federal 16(e) w il l now re quire . The e ff e c t of 

th is has caused gre at concern, reaching almost c ris is pr op or tio ns , 

to the courts and finances of the sta te and counties.

The Ch ief Judge of the Sta te Ju dic ia l System in th is 

d is tr ic t has talked to me about th is on several occasions in the 

past two months, and the situation is not unique to th is section 

of the st ate . The in divid ual counties must pay fo r these de po sitio ns , 

in Escambia County, where Pensacola is the county seat, the cost of 

deposition s through the month of A p ril , 1974 has already exceeded 

$20,000, and the county had appro priated only $15,000 fo r the 

entire fisca l ye ar, which ends September 30, 1974. I am advised 

th at the cost of these deposition s in Dade County, where Miami is 

the county se at, so fa r th is year is already one m illio n dollars .

(R. 15 , p. 8)

44-625 0 - 75 - 8
102

M il li a n S ta ffo r d , N. D. F lo ri da ( c o n t 'd . ) :

The State Chief Judge also advises th at the money ra tio 

1n our four countie s in West Flor ida is fo ur to one in favo r of the 

Public Defender; i.e ., fo r every d o lla r the State Attorney spends 

on deposition s the Public Defender spends fo ur.

Besides the inordina te amount of money spent on these 

de po sitio ns , the strain on the o ffic ia l co ur t repo rte rs is severe, 

and as a consequence the entire ju d ic ia l process is slowed and a 

speedy tr ia l becomes less of a re a li ty .

One of my Assistan ts worked fo r the State Atto rn ey 's 

Office here before jo in in g our o ff ic e in December. He advised *

th at wh ile he was there (and the same pr ac tic e continues) the

State Atto rn ey 's Office was ju s t unable to attend the deposition s

because of manpower lim itations and being engaged in the actu al

tr ia l of cases. As a consequence the Pu blic Defender's O ffice *

is often tak ing the depositions of state witnesses with ou t the

presence of any representative of the Pro secutor's O ffic e.

I feel stro ng ly th at th is ho rro r stor y 1n Florid a should 

be cranked in to the decision making process before Rule 15 becomes 

a re a li ty . Those who w il l make the decis ion as to whether Rule 15 

w il l be implemented or not should d e fi n it e ly be made aware of the 

fo llo wing p ro babilitie s:

1. Add ition al As sistan t U. S. Attorneys and supporting 

cle rica l help w il l be req uired.

2. Add ition al Court Reporters w il l be required.

3. There w il l be a b u il t in lag time between Indictme nt

and t r i a l .

4. Substan tial monies must be appro priated to pay fo r 

the costs of the transc ripts of these de po sitio ns , togethe r with 

costs fo r per diem and tra ve l expenses fo r witnesses and government 

attorney s.

5. In those d is tr ic ts where the Federal Public Defender 

system is implemented, ad ditio na l Pu blic Defenders and supporting 

cle rica l help w il l be necessary.

6. In most federa l cases there are witnesses from dis ta nt

places. I f the defendant wishes to depose them, then the problem *

re a lly compounds it s e lf. Eith er the witness has to be subpoenaed

(R. 15 , p. 9)
103

W illi am S ta ffo r d , N. D. F lo ri da ( c o n t'd .) :

to the place of tr ia l sometime p ri o r to t r ia l; or defense counsel 

would have to associate counsel at the residence of the witnes s; 

or defense counsel would have to trave l to the residence of the 

witne ss. From the U. S. Attor ne y's stan dp oint, i f the witness did 

not come to our o ff ic e fo r the depo sitio n, we would either have to 

trave l to the witnes s' place of residence or b rie f the U. S. Attorney 

in th at d is tr ic t and ask him to s it in on the de po sitio n, with the 

fu ll expecta tion of re ciproc ating fo r the other 93 U. S. Attorneys 

Of fices who may have witnesses in our d is tric t.

7. The ad ditio na l o ff ic e space, equipment, supplies and 

othe r services which necessarily fo llo w from an increase in the 

s ta ff of the Court Reporter, Pu blic Defender and the U. S. Attor ne y's 

O ffic e.

I tr u s t th at everyone concerned w il l recognize th at proposed 

Rule 15 w il l not be ignored by defense counsel, whether Pu blic Defender, 

co urt appointed or private . Fu rth er , the " ja il house lawyers" in the 

federa l penal system w il l not be long in charging th e ir counsel with 

incompetency i f defense counsel fa il s to take advantage of Rule 15 

prov isions .

The disastr ous experience the stat e courts in Florid a have 

had with deposition s in crim inal cases is a barometer of what the 

fed eral system w il l undergo should Rule 15 be implemented as proposed 

with ou t adequate funding across the board.

A d d it io n a l Comments from th e O ffic e o f R ic hard L. Thorn burg h:

Deposing of Witnesses

1. Once disc losu re of Government witnesses is made, 

i t can be an tic ipat ed th at defense counsel w il l seek to learn 

the Government's case by deposing Government witnesses under 

the pretense th at they are also pote ntia l defense witnesses.

2. Depositions w il l m ultip ly the number of Jencks 

type materials with th e ir inor dina te minor inco ns isten cies 

u ti liz e d fo r impeachment.

3. Dep ositions w il l substa ntially increase the demand 

on pro secutors' time as they w il l have to prepare witnesses fo r 

them as we ll as fo r t r ia l.

4. Dep ositions w il l not ob via te the problems of 

disc losu re . F ir s t, witnesses can be eliminated before they are 

deposed. Secondly, the dis passion ate reading of a de po sitio n

(R. 15 , P. 10)
104

A d d it io n a l Comments fr om th e O ffic e o f R ic hard L. Th or nb ur gh ( c o n t'd .) :

lacks the impact of a li v e witness. I t must be presumed th at 

i f the death or disappearance of a witness could not be lin ke d 

to a defendant, the ju ry would never know why a witness was not 

pre sent.

From th e O ffic e o f James R. Thompson, N. D. I l l i n o i s :

This ru le , though i t genuinely may have extenuating 

circumstances such as the expected demise of a witness, opens 

crim inal cases to a ll the procedures of c iv il cases. This s h if t *

in emphasis ignores the re a liti e s of a crim inal prosecution, 

includ ing the in tim id ation of witnesses, the premature demise 

of witnesse s, the mysterious disappearance of witnesses, and

subornation of perjury . ,

Rule 15(a) is ambiguous in th at i t fa il s to delinea te 

what is meant by the terms "sp ecial circumstances . . . in the 

in te re st o f ju stice . . ." The ru le is su bjec t to a wide 

va riation in in te rp re ta tion by tr ia l judges, and what may be 

subje ct to de position in one d is tric t would not be in another.

The ru le fu rt her provides ( in d ire ct vio la tio n of the Jencks 

Act) th at regardless at whose insis tanc e the depo sition is taken, 

the Government sh all make av ailable to the defendant the deposed 

witnes s' p ri o r statements. I f the new amendments were genuinely 

interested in crea tin g a balance of fa irness, would not a defendant 

be req uired to submit statements in his possession to the Government?

More im portantly , the amendment is in d irect contravention 

to the Jencks Ac t. Congress s p e cific a lly provided th at p ri o r sta te ­

ments need not be tendered u n til a ft e r a witn ess has te s ti fi e d .

The amendment makes those statements ava ila ble weeks, months, and 

occasio na lly even years in advance of the t r ia l. The Jencks Act 

is the law of the lan d, and no committee may, by fia t, change the 

sta tu to ry pro vision . Even the courts could not do so unless prepared 

to hold the Jencks Act unco nst itu tional.

The prov ision fo r de position provides th at i f the witness 

is un av ailable, the de position may be admitted as substan tive 

evidence. I t has been fundamental to the concept of tr ia l by ju ry 

th at an in te gra l aspect of witness evaluation has been the ju ry 's 

need to see the witne ss.

The one reasonable instance where the deposition can 

serve a valuable func tio n is where an important witness is dying,

(R. 15 , P

. 11)
105

From th e O ffic e o f Jam es R. Tho mpson , N. D. I l l i n o i s ( c o n t'd .) :

or otherwise ph ysica lly degenerating from causes which w ill make 

i t impossible fo r the witness to appear at the tr ia l by the time 

the case can reasonably be brought to tr ia l. In that rare instance, 

the interests of ju st ice should permit the testimony to be reduced 

to w riting, complete with dire ct and cross examination.

»

(R. 15, p. 12)
106

RULE 16

DISCOVERY AND INSPECTION.

Comments o f U. S . A tt o rn e y s

Ric hard L. Th or nb ur gh , N. D. P en n sylv a n ia :

Proposed Ru le 16 e lim in a te s any d is c re tio n o f th e "c o u rt 

in de ny ing d is covery which th e c o u rt p re s e n tl y possesses under 

Rule 16, and i t re q u ir e s th e government to supply defe ndant w it h 

a l i s t o f th e names and ad dresses o f a ll o f it s w itnesses! I t is 

as i f th e pr op on en ts o f th a t ru le had ne ve r he ard o f th e murde r *

o f key witnesses in org aniz ed crim e cases w it h which many o f us 

are re g re tta b ly fa m il ia r . Or perhaps th ey ha ve, as re fle c te d in 

th e a d d it io n a l p ro v is io n th a t when a defe ndant makes a re quest 

fo r dis covery o f th e names o f w itnesses, th e government is «

perm itte d to perp etu ate t h e ir te stim ony un de r Ru le 15 . However, 

a key w itness s la te d fo r "e ra sure " wo uld not lik e ly make i t to 

the d e p o s it io n , sin ce Ru le 15 re q u ir e s n o ti c e to be given to the 

defe ndant o f th e name and ad dress o f th e w it n e s s , as w e ll as th e 

tim e and pla ce fo r ta k in g th e d e p o s it io n ."

Don ald E. W a lt er, W. D. L o u is ia n a :

I ag ree w it h Tho rn bu rg h.

W. C. Smitherrnan, D. Arizo na :

I ad op t T horn burg h's comments concern in g th ese amendments.

Rober t E. Jo hnso n, W. D. A rk ansa s:

I wo uld ag ree w it h th e su bs tanc e o f U. S. A tt o rn e y 

Tho rn bur gh’ s comment on pro posed Rule 16.

Rober t G. Ren ner , D. M in ne so ta :

I ap prov e o f U nited Sta te s A tt o rn e y T horn burg h's comments 

on proposed cha nge s to Ru le 16.

(R. 16, page 1)
107

Ro be rt G. Re nn er, D. Mi nne sota (c o n t'd .) :

Rule 16 is most damaging. While the government may make 

demand fo r pro duction of a li b i defense m ate rial, in pra ct ical 

applic atio n i t w il l not work as contem plated.

The State of Minnesota has had th is type of law fo r many 

years. County Attorn eys refuse to use i t . A defendant makes cla im 

of an a lib i, th is compels the state to in ve st ig at e a ll aspects of 

the a lib i, and to the extent th at the re is any co rrob oration whatsoever, no matter how minim al, the stat e agents become witnesses 

fo r the defense.

I t 1s not fa ir to the citiz e n witness to place him in 

such jeopardy as disc losu re of his Id e n tity w il l accomplish. In 

the areas of drug socie ties, organized crime , ghetto crime, 

p ro stitu tio n rin gs and, even sometimes, 1n ce rtain neighborhoods, 

respect fo r the crim inal outweighs th at fo r those who cooperate 

with the law. This w il l double the burden.

I t is tough enough to get witnesses in our so ciety.

Any prosecutor w il l te ll you how d if f ic u lt i t is to get people 

to become invo lve d. Even i f they are the vic tim s, people w il l 

not come to the police (as evidenced by a crime ra te which fa r 

exceeds rep orted crimes).

Another d iffic u lt problem is when does a witness become 

a witness. The se lection of witnesses is th at of the advocate.

I t is the ru le ra th er than the exception th at new witnesses are 

found close to the time of t r ia l. Frequently prosecutors 1n 

preparing fo r tr ia l learn the Id e n tity of othe r po te ntia l witnesses 

Defense attorneys w il l protes t th at these witnesses were known to 

the agents a ll along. They w il l seek to have them strick en fo r 

not having them dis clo se d.

J . P . F a rris , S. D. Texas:

As to Rule 16, we feel th at the entire ru le 1s li k e ly 

to become an unworkable quagmire of hypertechnic al pettifoggery . 

We cannot diss ec t the new sections which tend to mainta in the 

status quo of the exis ting ru le , and thus fe el th at the entire 

ru le should be scrapped, allow ing us to work with what we have 

now. As to the po rtion re qu iring the government to submit names 

and addresses of witnesses, we feel th at th is goes again st the 

exis ting case law to the co ntra ry , and w il l generate su bs tantial

(R. 16, P

. 2)
108

J . P. F a r r is , S . D. Te xa s ( c o n t'd .) :

problems of ob stru ction of ju stice , tam pering, in tim id ating and 

even assassinating of government witn esses. I t w il l tend to 

fo st er the eve r-going problem of "no one wanting to become invo lved ". 

The po rtion re la ting to the recip rocal discovery by the defense, 

based on our experience with the exis ting re cipr oc al prov isions , 

is completely unworkable. We do not fe el th at many, i f any, of 

the d is tric t judges w il l requ ire disc losu re by the defendant of 

any.

Rober t W. R u st, S. D. F lo rid a :

In regard to Rule 16(a )(1) (A ), the new ru le provides fo r 

discovery of oral statements made by the defendant, as we ll as w ritten 

or recorded statements. The substance of oral statements are discoverable, however, only i f made in response to in te rr ogation by a person 

whom the defendant then knew to be a government agent. There are no 

oth er rea l changes in th is section.

The re vision created no real problem since oral statements 

were made pa rt of discovery as a regu lar pra ct ice anyway.

In regard to Rule 16(a )(1)(B), the new ru le provides th at 

a defendant's p ri o r crim inal record is dis covery m ate rial. The 

major question le f t open by th is new prov ision is what is included 

in "p ri o r crim inal reco rd ." Does th is mean a ll arrests? A ll 

conviction s? Only felony conviction s? or only co nv ictio ns which 

can be used fo r impeachment purposes? The proper in te rp re ta tion 

would seem to be th at o f rev ealing only those co nv ictio ns which 

could be used fo r impeachment purposes.

In regard to Rule 16 (a )(1) (C ), the only rea l ad ditio n 

in th is section is th at a ll items seized from a defendant are 

discoverable, whether or not they are intended to be used as 

evidence and reg ardless of th e ir m a te ri a lity to the defense.

This change should pose no real problem.

In regard to Rule 16 (a )(1) (D ), there is no change in 

th is section from the present requirements.

In regard to Rule 16(a )(1) (E ), th is is an e n tire ly new 

section re quirin g the government to fu rn ish the defendant a l is t 

of a ll government witnesses and th e ir addresses. This is the most 

frig hte nin g change from the present ru le s. The comments of U. S. 

Attorney Thornburgh adequately cover the disadvantages of th is 

proposed change.

(R. 16, p. 3)
109

Rober t W. R u st, S . D. F lo rid a ( c o n t'd .) s

Query--what about confidential informants? Would the 

co urt permit the use of business addresses through which a witness 

could be contacted in lie u o f his home address? Also, what la ti tu d e , 

i f any, would the tr ia l co urt have in perm itting the government to 

keep secret the names and addresses of "endangered witnesses"?

H ar ry D. Ste w ard , S. D. C a li fo r n ia :

Concerning the mod ifica tio ns to Rule 16, we have 

» followe d these procedures In fo rm ally 1n th is d is tr ic t fo r a

number of years . We were one of the d is tr ic ts selected fo r 

the p il o t projec ts of the Omnibus Hearing in 1967 or 1968.

We have found th at the courts in our d is tr ic t w il l not requ ire 

« us to disc lose names of proposed witnesses when in our judgment

to do so would not be advis able. Otherwise we ro utinely provide 

defense counsel with fu ll disc ov ery, Includ ing names and addresses 

of witnesse s. We have not had any untowards re sults by fo llo win g 

th is program, having in mind th at the courts w ill, and have, 

excused us from discovery where the circumstances wa rra nt.

I t would also seem to me th at prom ptly taking the 

de po sition of a key witness who might be subject to "erasure " 

would tend to pr ot ec t the witn ess except fo r re tr ib u ti o n . I t 

would seem preferab le to inca rcerate th is material witness 

pending the de po sition ra th er than su bjec t him to a lengthy 

inca rc er at ion e ither in ja il or pro te ctive custody in a safehouse 

aw aiting t r ia l. Being a border d is tr ic t we have hundreds of 

ma teria l witnesses in custody each ye ar, and we fin d th at th e ir 

testimony does not improve with extended periods of inca rc er at ion 

in ja ils . Despite th is fa ct we have re si st ed su cc es sfully a ll 

attempts of defense counsel to depose these witnesses as we feel 

expedited tr ia l is a better so lu tion as de position s in the 

rout ine case can be extremely time consuming. I make refere nce 

to th is apparent inconsisten cy to demonstrate th at the courts 

w il l not au thorize deposition s merely because defense counsel 

requests them.

By way of summary I am in clin ed to li b e ra liz e the 

co urts' dis cre tion in areas of arr est and b a il. I t is my fe eling 

th at most judges and prosecutors may well tend to err on the side 

of caution to the end th at many defendants are arrested or 

• inc arcerated needles sly . This is an area th at is open to

considerab le debate, but i f the proposed mod ifica tio ns prove 

to be unsuccessfu l, I am co nfiden t th at the judges w il l tig hte n 

up or th at the ru les can again be revise d. I feel th at we should 

. give i t a go.

(R. 16 , P

. 4)
110

Vic to r R. Orte ga , D. New Mexico:

The requirement of the disc losu re of witnesses is 

going to present a major problem. Pu tting to one side the 

question of the sa fety of witn esses, we th in k the amended 

Rule 16 w il l present some oth er snares. In ord er to adequately 

protec t the prosecution of the case, i t w il l become necessary 

to name any remotely possible witness. The fa il u re to name even 

a minor witness would, of course, become a major issue in every 

case 1n which i t occurred.

In additio n, the mandatory disc losu re prov isions of 

the amended Rule 16 w il l add to the dimensions of li tig a tio n 

conside rably . While we norm ally fu rn ish many of the matters 

discoverab le under the present Rule 16, fa il u re to do so does 

not re sult 1n reversal of the case or any serious legal problems. 

Where a motion is made, a good fa it h e ff o rt is made to comply 

with the court's or de r, and the discr etionary nature of the ru le 

gene rally prevents the prosecution from going as tra y on the 

fa ilu re to fu rn ish something.

With respect to the matter o f discovery and de po sitio ns , 

the present clamor fo r speedy tr ia ls has resu lte d in cases being 

brought to tr ia l almost as fa st as we can po ss ibly prepare them.

I f the use of deposition s becomes widespread, we feel th at the 

dimensions of crim inal li tig a tio n w il l become more inv olved and 

more time consuming. Our a b il it y to comply with time requirements 

of Rule 50(b) plans or possible fu tu re speedy tr ia l le g is la tio n 

w il l be se rio us ly hampered by an expansion of the de position 

prac tic e or dis covery prac tic e present in the amended ru le s.

Ch arles H. An de rso n, M. D. Te nn essee:

The most dangerous proposal is the requirement we furn ish 

names and addresses of government witnesses upon demand. The 

crim inal element should give an "Oscar" to the .fello w who suggested 

th at! Obviously they did not contemplate witnesses in pro te ctive 

custody. This is an in vita tio n to brib ery and ob stru ction of 

ju stice .

As a la s t re sort , the le ast they could do is give 

the prosecutor the same op po rtun ity , but th is would be s lig h t 

compersattn fo r the damage done.

(R. 16, p. 5)
I ll

S ta n P itk in , W. D. W as hi ng to n:

The only ob jection we have to Rule 16 is th at we don't 

lik e to be required to give the witness l is t in every case. 

However, a Nin th C ir c u it opinion says th at on a showing to the 

co urt under Rule 16 (b), defendant is e n ti tl e d to a witness lis t . 

Pres en tly, th ere fo r, we either vo lu n ta ri ly provide such li s ts 

or are so forced by co urt ord ers . Although we might wish more 

dis cr etio n on balance, with the reciproc al dis covery pro vision s, 

we can li v e with Rule 16.

• W illi am D. K e ll e r , C. D. C a li fo rn ia :

The presen t statement of th is ru le would encourage 

unscrupulous counsel to have s c ie n ti fi c te st s made with in structions

• th at the defense ex pe rt not prepare any w ritten re po rt which would

be av ailable under th is ru le . The ru le should requ ire the pre paration 

of such re po rts.

The prov ision in regard to pro te ct iv e orders should 

be strengthened. I t should e x p li c it ly sta te th at the co urt may 

at any time "in it s dis cr etion" order th at the discovery or 

insp ec tion be denied, etc. There are undoubtedly instances 

where such pro te ct iv e orders w il l be necessary fo r the pr ot ec tio n 

of witnesses.

H. M. Ray , N. D. M is s is s ip p i:

The proposed amendments to Rule 16 should be opposed 

in th e ir e n tire ty .

I t 1s proposed to change Rule 16 to re qu ire the government 

to dis cover to the defendant "the substance of any oral statement 

which the government intends to o ff e r in evidence at the tr ia l made 

by the defendant whether before or a ft e r arr est in response to 

in te rr ogation by any person known to the defendant to be a government agent." The commentary observes th at the same reasons fo r 

perm ittin g the defendant to dis cover his w ritten or recorded sta te ­

ments "o bv ious ly applied to the substance of any oral statement 

which the government intends to use in evide nce."

The commentary may be co rrect as to oral statements 

made "a ft e r arr est in response to in te rr ogation by . . . a 

government agent" since in such situation the re always lurks 

the p o s s ib ilit y of a Miranda obje ct io n. The commentary is not

(R. 16 , P

. 6)
112

H. N. Pay , N. D. M is s is s ip p i ( c o n t'd .) :

necessarily tru e with respect to statements made before arr est, 

however. In these circumstances, by d e fi n it io n the re can be no 

basis fo r ob jection to the statement. Since dis covery of sta te ­

ments before arr est cannot be ju s ti fi e d as afford in g a basis 

fo r ra is in g ob jections before t r ia l, i t must re st on seme oth er 

ground.

The commentary ju s tif ie s "broad dis covery" on thre e 

general princip le s:

1. "F air and e ff ic ie n t ad ministrat ion of crim inal *

ju s ti c e ,"

2. "Minim izing the undesirable e ff e c t of su rpris e at

the t r ia l" and •

3. "C on tribu tin g to an accurate determination of the

issue of g u il t or innocence."

None of these ends are served by discovery which allows the 

defendant to ta il o r his defense to meet the evidence against 

him. There can be nothin g fa ir and e ff ic ie n t in the g u ilty 

escaping co nv ictio n. There can be noth ing undesirable from 

the po int of view of ju stice of catching the defendant in a 

lie at tr ia l by su rp risi ng him with a p ri o r inco ns istent 

statement, and the ju ry is more li k e ly to make an accurate 

determination of the issue of g u il t or innocence i f they know 

he is ly in g. Self-pr es er va tio n is one of the f ir s t laws of 

Nature and the ru les of discovery ought to take in to account 

th at pe rju ry is a very rea l problem in crim inal prosecutions.

It 's no answer to say th at the defendant could be prosecuted 

fo r pe rju ry because th is us ua lly is not fe asible and has a 

flavor of "sour grapes" to i t which discourages prosecution.

The proposed change lim it s discovery of the defendant's 

ora l statements to those which "the government inte nds to o ff e r 

in evidence at t r ia l. " The possible penalty fo r fa il u re to 

disclos e is th at the co urt may "p ro h ib it the pa rty from intro du cing 

in evidence" the ma teria l not dis clo sed. The ru le does not indica te 

what ac tio n the co urt should take i f i t appears th at the government 

had before tr ia l but did not disc lose , because i t had no in te ntion 

of using i t , a statement th at la te r during tr ia l becomes ma terial 

either on the case in chie f or in re bu ttal and the government then *

decides to o ff e r i t . For example, the government may have an 

exculpa tory statement which i t has no reason or in te ntion to use.

At t r ia l, however, the defendant may attempt to develop either

(R. 16 , p. 7)
113

H. M. R ay, N. D. M is s is s ip p i ( c o n t 'd . ) :

through cross-exa min atio n of the government witnesses, the 

presentation of defense witne sses, or the defen dant's own 

tes tim ony, evidence which is in co nsist en t with his p ri o r statement. 

Would the government be barred from in tro du cing th is statement on 

it s case in chie f or in cross-ex amination of the defendant or in 

re b u tt a l?

Rule 16 is fu rt her amended to elim inate the requirement 

th at the defendant make "a showing of m a te ri a lity " and a showing 

"t hat the request is reasonable" on a motion to inspect and copy 

books, papers, documents, photographs, ta ngib le obje ct s, bu ild ings 

or pla ces, or copies or po rtion s th ere of which are w ithin the 

possession, custody or co ntro l of the government. Instea d, the 

government would be req uired to perm it the defendant to inspect 

and copy any of these items "which are material to the preparation 

of his defense or are intended fo r use by the government as evidence 

in chie f at the t r ia l , or were obtained from or belong to the 

defendant. The commentary sta tes th at th is amendment would requ ire 

disc losu re where "th e defendant shows th at disc losu re of the 

document or ta ngib le ob ject is ma teria l to the defense." This 

p la in ly is not what the ru le its e lf says since a ll refere nce to 

a showing o f m a te ri a lity is elim inated . Furtherm ore, elsewhere, 

the commentary states th at the reason fo r elim in atin g the re quirement of a showing of m a te ri a lity by the defendant is because " i t 

may be d iffic u lt fo r a defendant to make th is showing i f he does 

not know what the evidence is ." The pla in language of the ru le 

as amended says th at the items must be dis clo sed i f they are 

ma teria l and the commentary acknowledges th at the defendant may 

have no knowledge of what evidence he is fishin g fo r, much less 

it s m a te ri a lity . I t is obvious, th ere fo re , th at the onus is 

going to be on the government attorney to discover fo r himse lf 

not only what evidence may be in his f ile but als o anywhere w ithin 

the possession, custody or co ntro l of the entire government.

Then, with ou t knowing what the defense is , he must determine 

whether any of th is evidence is material to the defense.

This is an onerous, unreasonable, impossible and 

u tt e rly absurd re sp o n sib ility to impose on any atto rn ey .

These revision s seem to be based on the assumption th at 

with dis covery the crim inal defendant w il l not fa bricate evidence 

but with ou t discovery the government w il l suppress evidence.

Indeed, the re vise rs c it e Brady v, Maryland, 373 U.S. 83 (1953), 

as perhaps re quirin g disc losu re of documents and ob jects material 

to the defense. Apart from the fa ct th at Brady v. Maryland

(R. 16 , p. 8)
114

H. M. Ray , N. D. M is sis s ip p i ( c o n t'd .) :

dea lt with a request fo r specific evidence which at le ast two 

members of the Supreme Court of the United States were not 

sa tisfie d was ma terial aft er having the benefit of briefs and 

argument by opposing counsel and with the benefit of the records 

and opinions of the tr ia l co urt and the hig hest stat e ap pe lla te 

co urt on a motion fo r a new tr ia l and on a p e titio n fo r post-convic tion re lie f, Brady and every case cited in i t involved 

suppression of evidence by a state prosecuto r. These, a ft e r a ll, 

are Federal Rules we are re vising and they ought at le ast to be 

based on Federal prac tic e and experience. In the absence of some 

demonstrable tendency of Federal prosecutors to suppress evidence, 

th is type of dragnet discovery ought to be re je cted. I t is one 

thing to be under an ethica l and o ffic ia l duty not to suppress 

evidence knowingly, but i t is another th ing to be under a co urt 

ord er to search out and weigh evidence fo r the benefit of one's 

adversary.

I t is proposed to amend Rule 16 fu rt her to su bstitu te 

"s hall" fo r "may" in the dis covery prov isions to make discovery 

with ou t any showing of any kind mandatory ra th er than discr etio nary 

with the co urt. I t is sig n ific a n t th at the prov ision regarding 

lim ita tio n s on dis covery, however, is le f t unchanged so th at "th e 

co urt may" but only "Upon a s u ff ic ie n t showing" enter a pro te ct iv e 

order lim it in g discovery. Certain ly i f un lim ite d discovery is 

going to be ma ndato rily granted with ou t any showing, then pro te ctive 

orders ought to be ma ndato rily granted where the re is a s u ff ic ie n t 

showing of the need fo r them.

The commentary cites several cases as demonstrating 

the need to make discovery mandatory ra th er than dis cre tionary .

I t is only necessary to examine these cases to see how much 

dis covery was allowed and on what basis some was denied to 

demonstrate how unnecessary th is change is . For example, the 

commentary twice cites United States v. Kaminsky, 275 F.Supp.

365 (E.D. Wise. 1967), apparen tly as il lu s tra tin g the abuse of 

the present ru le . In th at case, there were "blank et requests" 

under which the court granted the defendant the rig h t to ins pect 

at le ast one week before tr ia l any F.B .I. repo rts of in terview 

with the defendants which the government intended to o ff e r in 

evidence. The co urt denied pro duction of "any cry ptic or 

'fo ols ca p' notes by government attorney s" u n ti l tr ia l where 

the co ur t indica ted even they would be subje ct to dis covery 

under the Jen ck's Act. The co ur t also denied disc losu re of 

the fa ct whether any ele ct ro nic devices had been used in

(R. 16, p. 9)
115

H. M. Ray , N. D. M is s is s ip p i ( c o n t 'd . ) :

gathe ring evidence because there was no showing of even "any 

lik elih ood th at such devices were used in the in vestigation."

The co urt also declined to impose upon government counsel "an 

oblig ation to fu rn ish long before tr ia l a ll kinds of inform ation 

which some lawyer might con ceivably In te rp re t as exculpa tory 

evidence or leads to such evidence" because "Nothing 1n Brady 

v. State of Maryland req uires such an unworkable pro cedure."

The othe r cases mentioned in the commentary are sim ila rl y 

dis crim in ating in th e ir hold ings and the entire opinion in 

United States v. Louis Carreau, In c .t

 42 F.R.D. 408 (So.D. N.Y.

#

1967) cited pro minently in the commentary is a deta ile d re buttal 

to the argument fo r broader dis covery.

Anyone who has had to answer motions fo r dis covery 

, under the present ru les can re adily appreciate the pote ntial fo r

harrassm ent, delay and friv olo us ob jections in the proposed changes. 

The motion can be fil e d pro forma with ou t any sense of re sp o n sib ility 

but i t w il l have to be answered in earnest with a conscie ntious 

e ff o rt to comply fu lly with the le tte r and s p ir it of the ru le .

Where i t is doubtfu l th at the defendant 1s e n title d to the Informa tion 

requested, the pressure w il l be to disc lose nevertheless to avoid 

ob jections to a d m is sib ility and the c rit ic is m o f having suppressed 

evidence. Inad ve rte nt omissions and honest er ro rs of judgment w il l 

be the basis fo r many ob jections at t r ia l and new er ro rs on appeal. 

Again i t seems the appropria te time and place to determine whether 

the pro secution is g u il ty of suppressing evidence 1s a ft e r tr ia l 

on a motion fo r a new tr ia l where the Issues have been cle a rly 

define d and a fu ll record made. At th at tim e, the prosecution w il l 

have had an op po rtun ity to discharge Its duty not to suppress 

evidence and the sig nifica nce of any evidence withhe ld can be 

measured 1n con crete terms ra th er than hypoth etically . I f boundless 

discovery is to be granted before t r ia l , however, the re ought at 

le ast to be some li m it s on 1t 1n terms of reasonableness and 

s p e c if ic it y .

I t 1s proposed to amend Rule 16 fu rt h e r to requ ire the 

government to disc lose to the defendant any documents or ob jects 

which "are Intended fo r use by the government as evidence at the 

t r ia l, or were obtained from or belong to the defen dant." The 

commentary says sim ply th at "t h is is probably the re sult which 

should be reached under present Rule 16" but since some courts 

don't reach 1 t, then the re sult is to be compelled by the change

* 1n the ru le s.

(R. 16 , p. 10)
116

H. M. Ray, N. D. M is sis s ip p i ( c o n t 'd . ) :

This proposal, lik e the othe rs, based on the in te ntio ns 

of the prosecutor re flects a complete dis reg ard fo r the problems 

of preparing fo r tr ia l and tr yin g a case. Often i t is not known 

in advance pr ec isely what evidence w il l be used at tr ia l and 

documents and objec ts th at w il l be used are not always re adily 

ava ila ble to government counsel before t r ia l. For example, the 

prosecutio n may have fingerp rints taken from the defendant in the 

F.B .I. labo ratory in Washington and does not intend to ca ll an 

expert from Washington to introduce them u n ti l i t appears at tr ia l 

th at it s eyewitness on d irect examination cannot id e n ti fy the 

defendant or his id e n tifica ti o n is disc re dite d on cross-examination 

or is co ntradicted by defense witnesses. Even i f i t were intended 

a ll along to use the fi n g e rp ri n ts , the actua l exhib its th er eo f 

th at w il l be introduced in to evidence may not be in existence u n til 

ju s t before t r ia l. I t is not unusual to discover fo r the f ir s t 

time at the tr ia l th at a government agent has photographs, fo r 

example, which would be he lpful in ex plaining his testimony to 

the ju ry and i t is decided then to introduce them. The prosecutio n 

may have some item of evidence which i t does not inte nd to use 

because i t cannot connect i t to the defendant, but at tr ia l some 

witness fo r the prosecution or the defense may surp risin gly produce 

the missing li n k and make i t admissible.

The fu rt her amendment to Rule 16 prov iding th at where a 

pa rty "decides to use additio na l evidence . . . he shall promptly 

n o tify the othe r party " does not elim inate these problems and is 

its e lf unnecessary and unwise. The defense of a case does not 

begin with the close of the government's evidence but with the 

cross-exa min atio n of the government's f ir s t witness, and the 

defendant do es n't have to prove th at he is not g u ilty but only 

cast doubt on the fa ct th at he is . Thus, the defendant w il l s ta rt 

o ff with the prosecution 's witnesses build in g up the defense th at 

po ssibly i t was someone els e who committed the crime , or th at he 

may have been entrapped, or th at he could have been insane.

Having no othe r defense, the defendant may build his whole case 

on such bare suspicions and then pound away at the ju ry th at the 

government has not proved its case beyond a reasonable doubt.

These are, of course, le gitim ate defense ta ctics but i t is equally 

proper fo r the government to explode these phony defenses when i t 

has the evidence to do so. I f , however, the prosecutio n is required 

every time i t sees such a defense developing to n o tify the defendant 

th at i t has the evidence to re fu te i t then he w il l avoid th at lin e 

of defense and probe u n ti l he fin ds another which the government 

by it s silenc e admits i t cannot answer. I f the defendant's only 

defense to a charge is to confuse and mislead the ju ry , he should

(r. 16, p. l l )
117

H. M. Ray, N. D. M is s is s ip p i ( c o n t 'd . ) :

be allowed an op po rtu nity to presen t i t , but the prosecution should 

also have the rig h t to expose its fa ls it y and reveal the absence of 

any valid defense. There is nothing u n fa ir about giving the 

defendant enough rope to hang himse lf. That the pro secutor must 

s tr ik e only fa ir blows does not mean th at he must teleg rap h his 

punches.

The fu rt her amendment to Rule 16 re quirin g the 

prosecution to disclose any additi onal witnesses or evidence 

i t decides during the tr ia l to use is simply dis covery fo r 

disc ov er y's sake. Obviously, by the time the tr ia l has begun,

• i t is too la te fo r such evidence to be the basis fo r any pretr ia l motions and any witn ess who takes the stand must giv e his 

name and address before te s ti fy in g and any exhib it must be shown 

to opposing counsel before a witness can be examined about i t .

f The on ly purpose to be served by giv in g the defendant advance

no tic e of such evidence is to a le rt him not to stake his case on 

the mistaken b e lie f th at the evidence is un available to the 

government.

The commentary states th at a m ajo rity o f the re vi se rs are 

of the view th at "th e giving of a broader rig h t of discovery to the 

defense is dependent upon giving also a broader rig h t of discovery 

to the pros ec ution," but the scant discovery afforded the prosecutio n 

is so lim ited as to be p ra c ti c a lly meaningless. Before the prosecutio n 

has bargained away everyth ing i t has to o ff e r in the way of discov ery, 

some e ff o rt ought to be made to requ ire meaningful discovery o f the 

defendant. There cert ain ly wo n't be much pressure from the academicians 

and the defense bar to broader dis covery once a defendant has obtained 

everything in th is way th at he de sires. At a very minimum as a 

co nd ition to discovery by the pros ec ution, the defendant ought to 

be require d to submit himse lf and a ll o f his witnesses to the taking 

of th e ir de position s not to be used as evidence in chie f fo r the 

prosecution but so le ly fo r impeachment and as a basis fo r a prosecu tio n fo r pe rju ry in the event the witness or the defendant takes 

the stand at tr ia l and departs from the de po sitio n. This would put 

the defendant and his witnesses in the same posi tio n as government 

witnesses under the Jencks Act and would la rg ely remove prosecution 

ob jections to broader discovery on the grounds th at i t fa c il it a te s 

fa brication of evidence. This no more compels the defendant to give 

evidence against himself than co nd ition ing his rig h t to te s tif y on 

the oblig ation to submit to cross-examination compels him to give 

evidence ag ainst himse lf. Furthermore, the defendant could avoid

* giving his de po sition before tr ia l by sim ply waiving discovery on

(R. 16, p. 12)

44-625 0 - 7 5 - 9
118

H. M. Ray, N. D. M is sis s ip p i ( c o n t 'd .) :

the pa rt of the government. Discovery by the government is not 

co n stitu tio n a lly required and thus the defendant is not being 

compelled to surrender one Con stitu tio na l ri g h t in ord er to take 

advantage o f another one. Just as a defendant can do so, lik ew ise 

he could waive the ri g h t to mainta in absolute silenc e before tr ia l 

to gain the be ne fits of discovery by the government. In any event, 

the oberblown the ory th at re qu iring the defendant to make the 

dis covery as a co nd ition to ob taining discovery is in some way 

un co ns titut iona l should be tested fu rt her in li g h t of Williams v. 

Flo rida, 399 U.S. 78 (1970), before the pro secutio n has yielde d up 

it s entire f ile and no longer has anything to o ff e r in exchange.

R ober t J . R oth , D. Ka nsas:

We should re sis t expansion of dis covery. Our omnibus 

hearing procedure is proof th at discovery ge ne rally be ne fits 

only defense.

Regarding Rule 16(e)—oppose disc losu re of id e n tity 

of government witn esses. Disclosure in vites harassment, 

in tim id ation or elim inat ion of government witnesses. Witnesses 

may be more re lu cta nt to cooperate i f disc losu re allowed. 

Encourages manufacutring of defenses.

Wayman G. S h e rre r, N. D. Ala bama :

(16(e)) L is t of Government Witnesses: We ob ject to th is 

requirement wholeheartedly, em phatica lly and with ou t rese rvations:

The prog ressive ly successfu l, a lb e it much misguided attempts to 

equate c iv il and crim inal dis covery under the guise of some basic 

analogy between c iv il law suits and crim inal prosecutions misses 

the mark. A c iv il s u it and a crim inal pro secutio n are d if fe re n t 

animals e n ti re ly , and never were meant to be conducted under sim ila r 

substan tive ru le s. They deal with complete ly d if fe re n t areas of 

oblig ation, in te re sts , ri g h ts , burdens of pr oo f, and most im po rtan tly , 

d iffe re n t. co n stitu tio n a l protec tio ns premised on the simple fa ct th at 

c iv il lit ig a tio n , in the main, is between pr ivate person and pr ivate 

person; whereas a crim inal prosecutio n is the state versus a cit iz e n , 

therefore the formid able constitu tional bulwarks raise d to pr ot ec t 

the accused (conspicuously absent in c iv il su its). Frankly , the 

pro secutio n needs no fu rther problems in attemptin g to ins ure th at 

the pu blic rig h t is fu lfille d , th at is speedy, effective and fa ir 

pro secutions.

(R. 16 , P

. 13)
119

Ea rl J. S ilb e r t, D. C .i

At the ou tset of our discussion concerning the proposed 

amendments to Rule 16, we should note our agreement with the general 

comments contained in the Report to the Attorney General Concerning 

Prelim inary Dra ft of Proposed Amendments to the Federal Rules of 

Crim inal Procedure fo r the United States D is tric t Courts (A p ril, 

1971), both with refe rence to the undesirability of prov iding fo r 

mandatory dis covery withou t the exerc ise of the tr ia l court 's 

dis cr etion and with reference to most of the specific prov isions 

commented upon in th at re port. We are als o concerned in general 

with the fa ct th at nowhere in the proposed amendments to Rule 16 is 

the problem of the tim ing of requests fo r dis covery and responses 

to such requests adequately met. In ne arly a ll ins tan ces, the 

disclosing pa rty is required to comply only upon the "re quest" of 

the discov ering party. I t is our view th at in v ir tu a ll y every 

instance dis covery should not take place u n ti l a ft e r indic tment 

and th at in many ins tances, p a rt ic u la rl y those where mutual 

disc losu re of witnesses and witness addresses is requ ire d, discovery, 

i f i t is permitte d at a ll (and we strongly oppose i t ) , should occur 

only w ithin thr ee days of t r ia l. Cf. 18 U.S.C. Section 3432 (where, 

even in capital cases, Congress fe Tt i t unnecessary to requ ire pretr ia l disc losu re of Government witnesses more than three days in 

advance of t r i a l ).

With refere nce to Rule 16(a )( 1)(A), we oppose the la s t 

sentence of the subsection prov iding th at where the defendant is 

a co rp or ation, pa rtne rship, as so ciation or labo r union, the co urt 

may gra nt the defendant, upon it s mo tion, discovery of releva nt 

recorded testimony of any witness before a Grand Jury who was, at 

the time either of the charged acts or of the grand ju ry proceedings, 

so situated as an o ff ic e r or employee as to have been able le g a lly 

to bind the defendant in respect to the a c ti v it ie s inv olv ed in the 

charges. Notwiths tanding the Department's e a rl ie r support of th is 

language in it s A p ril , 1971 Report to the Attorney General, i t is 

the view of our Fraud Section th at th is ru le would severely impair 

pro secutio ns of both corporate defendants and in divid ual defendants 

joine d with them, and that i t should be deleted.

With reference to Rule 16(a )(1)(B), we would recommend 

th at the subsection be amended to read: D ef en da nt's Pri or Re cord.

Upon re q u est o f th e def en dan t, th e gover nm ent sh a ll fu rn is h to th e

de fe nda nt such copy o f h is p rio r cr im in al re co rd , i f an y, as i s in

th e poss ess io n o f th e att orn ey fo r th e governme nt. This change is

(R. 16 , p. 14)
120

Earl J . S i l b e r t , D. C. ( c o n t'd .) :

id entica l to a proposal in the A p ril , 1971 Report to the Attorney 

General and we support i t fo r the reason set out in th at re port.

See pages 19-20.

With reference to Rule 16 (a )(1) (C ), re la ting to disc losu re 

by the government of documents and ta ng ible ob je cts, we ob ject to 

th is subsection fo r the reasons set out in the A p ril , 1971 Report 

to the Attorney General at pages 20-23 and, with the exception of 

providing fo r disc losu re of photographs, recommend th at the language 

of the present ru le be retaine d.

With reference to Rule 16(a )(1)(E), providing fo r the 

disc losu re by the Government of the names, addresses and p ri o r 

felony co nv ictio ns of it s witnesses, we fe el most stro ng ly th at 

th is subsection should be vigo rous ly opposed; indeed, i f at th is 

time the resources of the Department are to be focused upon any 

sing le proposed amendment to the ru les in an e ff o rt to seek 

Congressional mod ifica tio n or re je ctio n , we feel th at i t is 

Rule 16 (a)(1 )(E ) which should draw the Department's attention.

In the Report by the Department committee to the Attorney General 

in A p ril , 1971, th is proposed amendment is c rit ic iz e d at len gth.

We would only note th at the fi n a l language of the subsection as 

i t is w ritten represents a v ir tu a l concession by the authors of 

the ru le elev ating the importance of a defendant's op po rtu nity 

to obtain disc losu re of the id e n tity of witnesses over the need 

to protec t the same subsection of an absolute requirement fo r 

disc losu re of names and addresses of witnesses on the one hand, 

and the assurance th at the Government w il l have an op po rtu nity 

to depose and preserve the testimony of such witnesses at an 

ea rly date on the ot her, represents physical dnager to witnesses 

th at would emanate from the enactment of the ru le , and a 

remarkable conclusion th at the physical sa fety of victim s of 

crime must assume second p rio rit y to the unnecessary expansion 

of p re tr ia l dis covery.

The apprehensions of witnesses to crime th at they may 

suffer re prisals i f they te s ti fy are not imaginary or inconse-* 

quential, as was re flecte d in the examples set out in the A p ril,

1971 Report to the Attorney General, pp. 25-26. A dditio nally, 

pr elim inary data from a witness coopera tion study conducted by 

the In s ti tu te fo r Law and Social Research under a gra nt from the 

Law Enforcement Assistance Adm inistra tio n revealed th a t, when 

asked the open ended question, "What changes do you th in k would 

make witnesses more w illin g to cooperate?", 28.8 per cent of those 

witnesses who had cooperated with the po lic e and the United States

(R. 16 , P

. 15)
121

Earl J . S il b e r t (c o n t'd .) :

Attor ne y's Offic e in prosecutions and 31.3 per cent of those who 

declin ed to cooperate gave one of three sig n ific a n t kinds of 

responses, a ll re fle ctin g a concern with re p ri sa l: "B ette r prote ct io n of witnesses by polic e", "Keep witness id e n ti fi c a ti o n from 

defen dants ", and "Assure witness of pr otec tio n a ft e r testim on y."

In summary, we believe th at proposed Rule 16 (a)(1)(E ) 

should be vigo rous ly opposed in favo r of re te ntion of the present 

ru le which make no reference whatever to witness disc losu re . 

A lte rn a tive ly , we would recommend that in the event witness 

disc losu re is to be pe rm itte d, some burden be placed on the party 

seeking disc losu re to show a reasonable need fo r the inform ation 

sought, and th at whatever disc losu re in th is regard is pe rm itted , 

no pa rty be required to disclos e e a rl ie r than thre e days in 

advance of t r ia l. F in ally, i t is p a rt ic u la rl y c rit ic a l th at in 

th is area the t r ia l Court re ta in dis cr etion as to whether or not 

to gra nt the discovery sought. Thus, i f subsection (E) of Rule 

16(a) (1) is to be re ta ined , we would urge th at the f ir s t sentence 

of the ru le be modified to read as fo llo ws: upon mo tio n and a

showin g by th e def en da nt th a t h is re quest i s re aso na ble , th e

Co urt may or de r th e att orn ey fo r th e Gov ernm ent, th re e days in

adv anc e o f th e d ate o f tr i a l , to fu rn is h to th e def en da nt a

w rit te n l i s t o f th e names and ad dr es se s to a ll government

w it ness es whom th e attorn ey fo r th e Government in te n d s to c a ll

in th e p re sen ta ti o n o f th e ca se in c h ie f to geth er w ith any re co rd

o f p rio r fe lo n y co n vic ti o n s o f any such w it ness which i s w it hin

th e poss ess io n o f th e att orn ey fo r th e Governm ent.

With reference to the requirement in Rule 16 (a)(1 )(E ) 

th at the Government tur n over p ri o r felony co nv ictio ns of it s 

witnesse s, we als o ob ject. Such a ru le not only imposes an 

unnecessary ad ministrat ive burden upon the pro secutio n but w il l 

very li k e ly re su lt in discou raging witnesses from te s ti fy in g fo r 

reasons of pote ntial embarrassment to ta ll y unrelated to th e ir 

c re d ib il it y . To the exten t th at the pro secutio n is aware of the 

co nv ictio n of a witness th at could be used fo r impeachment of 

th at witn es s's c re d ib il it y or to show bias or pr ejud ice, the 

prosecutor should, of course, make such disclos ur e; the prosecution 

should be under no du ty, however, to independently seek such 

inform ation. In urg ing re je ction of th is po rtion of subsection 

(E), we note th at Courts have un ifo rm ly upheld den ial of requests 

fo r such disclos ur e. See e .g ., United States v. Condor, 423 F.2d 

904, 910 (6th C ir .), c e rt , denied, 400 U.S. 958 (1970); Hemphill

(R. 16 , p. 16)
122

Earl J . S l lb a r t, D. C. ( c o n t'd .) i

v. United States. 392 F.2d 45, 48 (8th C 1r. ), cert , den ied, 393 

U.S. 8)7 (1968); United States v. Mahaney, 305 F .S upp. 1205, 1209

(N.D. I l l . 1969)/ United State s"v . Ue strorela nd, 41 F.R.D. 419,

427 (S.D. Ind. 1957); Unite FStT te s" v. Oobb, 27l F.Supp. 159,

162 (S.D. N.Y. 1967). Moreover, we believe th at a procedure 

re quiring such disc losu re 1s a direct as sa ult on the priva cy of 

an Individu al citiz e n whose only connection with a criminal 

proceeding 1s th at he was the vi ct im of or witness to a crime.

With refe rence to Rule 16 (a )(2), "Information not Subject 

to Disclos ure", we would recommend th at th is po rtion of the ru le be 

modified 1n keeping with the recommendations we have made above to 

read as fo llo ws: Ex cept as pr ov ided in su b d iv is io n (a )(1) th is ru le

doe s not auth ori ze th e dis co ve ry or in sp ecti o n o f re p o rts , nernorand a, or oth er in te rn a l governmen t doc uments made by th e att orn ey

fo r th e gov ernment or oth er government ag en ts in co nn ec tion w ith th e

in v e sti g a ti o n or pro se cu tion o f th e ca se , or o f th e nam es, addre ss es ,

st ate m en ts or p rio r cr im in al reco rd s o f gover nm ent w itness es or

pro sp ecti ve gov ernment w itness es ex ce pt as pr ov id ed in 18 U.S.C .

Secti on 3500 or Ru le 1 6 (b )( 1 )(D) o f th ese ru le s.

With refere nce to Rule 16 (a )(3), "Grand Jury Tra nsc ripts ", 

we would recommend th at th is subsection be amended to inc lude reference 

to the Jencks Act and to read as fo llo ws: Ex ce pt as pr ov id ed in

Ru le 6, su b d iv is io n ( a ) (1 )(A) o f th is ru le and 18 U.S.C . Secti on

3500 , th ese ru le s do not re la te to dis covery or in sp ecti o n o f

reco rd ed pr oc ee di ng s o f a grand ju ry .

With reference to Rule 16 (b), re la ting to disclosu re of 

evidence by the defendant, we recommend several changes th at would 

tra ck mod ifica tio ns which we have suggested 1n Rule 16(a) to maintain 

as nearly eq ua lly as possible mutua lity of dis covery between the 

Government and the defense. In p a rt ic u la r, we urge mod ifica tio n of 

subsections (A) and (B) of Rule 16(b) (1) to re qu ire disc losu re by 

the defense of documents, tang ible obje ct s, and repo rts of examinations 

and tests which the defendant obtains in connection with the case.

The e ff ect of our proposed mod ifica tio n would avoid a circumstance, 

fo r example, where a defendant who wished to raise an in sa nity defense 

obtained examinations by fi v e d if fe re n t psychia tr is ts , four of whom 

found the defendant with ou t mental illn e ss and one of whom found 

him sic k, only to have the defense suppress the re sults of the fo ur 

negative examinations wh ile introdu cin g the testimony of the fav orable 

f if t h psychia tr is t. F in a lly, wh ile we ob ject to disclosu re of defense 

witnesses because we ob ject to disc losu re of government witnesses, 

i f disc losu re of government witnesses is to be pe rm itted , along with 

th e ir crim inal records, we believe th at disc losu re of defense witnesses

(R. 16 , p. 17)
Earl J. S llb e r t, D. C. (c o n t' d .) t

and th eir criminal records should be permitted on the same basis.

With these considerations 1n mind, we would recommend that subsections

(A), (B), and (C) of Rule 16(b)(1) be modified as follows:

(A) Documents and Ta ng ible O bje cts . Upon re quest

o f th e Gov ernmen t, th e de fend an t sh a ll per m it th e Government

to In sp ect and cop y or photo gra ph bo ok s, pap er s, docume nts ,

ph otog ra ph s, ta n g ib le o b je cts or co pie s or port io ns th e re o f,

which ar e w it h in th e poss ess io n, cu st od y or co n tr o l o f th e

de fe ndant, and which are m at er ia l to th e ca se or which th e

de fend an t in te n d s to pro duce as ev id en ce In c h ie f a t th e tr ia l .

(3) Rep or ts o f Exam ina tions and T e sts . Upon re guest

o f th e Government, th e de fend an t sh a ll per m it th e Government to

In sp ect and cop y or photo grap h any r e s u lts or rep o rts o f physi cal

or me nta l ex am in at io ns and o f s c i e n ti fi c te s ts or ex pe rimen ts

made in co nn ec tion w it h a p a rti c u la r ca se , or copie s th e re o f,

w ithin th e p o ss ess io n , cu stod y or con tr o l o f th e def endant, or

th e e x is te n ce o f which is known to th e defe ndant.

(C) Defen se W itnes se s. Upon re quest o f th e Government,

th e de fe nd an t sh a ll fu rn is h th e Government a l i s t o f th e names

and ad dr es se s o f th e w itnes se s he in te n d s to c a ll in th e p re se nta ti on

o f th e d efe n d a n t' s ca se in c h ie f, to geth er w ith any re co rd o f th e

p ri o r fe lo n y c o n v ic ti o n s o f such w it ness es w it hin th e poss es si on

o f th e de fe nd an t or h is co uns el . When a re quest . . .

F in a lly, as noted above, we st ro ngly recommend the 

ad ditio n of a new subsection, (D), "Statements of Defense 

Witnesses", to Rule 16(b)(1 ) which would afford the Government 

discovery of p ri o r statements of defense witnesses a ft e r those 

witnesses have te s tif ie d at tr ia l or in p re tr ia l hearings, 

pr ec isely comparable in scope to discovery permitte d of p rior 

statements of Government witnesses under sim ila r circumstances 

by 18 U.S. Code Section 3500. See Sta te v. Montagus, supra ; 

and the Government's P etition fo r Rehearing En Banc in United 

States v. Anthony Wrig ht, supra, fi le d th ere in . We would 

propose th at Rule 16(b)(1 )(D ) read as fo llo ws: st ate m ents o f

De fen se W it ness es. A ft e r a w it nes s c a ll e d by th e de fe nd an t has

te s ti fi e d on d ir e c t ex am inatio n, th e Co urt s h a ll, on mo tion o f

th e Go ver nment , or de r th e de fend an t to prod uce any st ate m en t o f

th e w it ness in th e poss ess io n o f th e def en da nt wh ich re la te s to

th e su b je c t m atter to which th e w it ness has te s ti fi e d . I f th e

e n ti re co n te n ts o f any such st ate m en t r e la te to th e su b je ct
124

Earl J . S i l b e r t , D. C. ( c o n t'd .) :

r a t t e r o f th e te sti m o n y o f th e w it n e s s , th e C ourt s h a ll o rd er i t

to be d e li v e re d d ir e c tly to th e a tt o r n e y fo r th e Go vernme nt fo r

h is exa m in ati on and u se. The term "sta te m en t" a s use d in t h is

su b sec ti o n means a w r itte n sta te m en t made by th e w it n e ss and

si g n ed or o th erw is e adopte d or ap pr ov ed by hi m, or a ste n o g ra p h ic ,

m ech anic al, e l e c t r i c a l , o r o th er re c o rd in g , or a tr a n s c r ip tio n

th e r e o f, wh ich i s a s u b s ta n tia lly verb a ti m r e c i t a l o f an o ra l

sta te m en t made by sa id w it n e ss to th e d e fe n d a n t, h is counse l or

h is agent and re cord ed co nte m pora neo usl y w it h th e ma king o f su ch

o ra l sta te m e n t. I f th e defe ndant e le c t s n o t to co mply w it h an

ord er o f th e c o u rt to d e liv e r su ch a sta te m e n t, or p o rti o n s

th e r e o f, to th e Go vernme nt as th e C ourt may d i r e c t , th e c o u rt

s h a ll s t r i k e from th e re cord th e te sti m o n y o f th e w it n e ss .

In keeping with the above proposed amendment, we would 

urge mod ifica tio n of Rule 16 (b )(2) , "In form ation Not Subject to 

Disc losu re", by the ad ditio n of the words, e x c e p t a s p ro vid ed in

su b d iv is io n ( 1 ) (D) o f t h is r u le , at the end of Rule 16 (b)(2). 

A d d it io n a l Comments fr om th e O ffic e o f R ic hard L. Th or nb ur gh :

Requiring Disclosure of Government Witnesses

1. Most ob viou sly, th is would cre ate the serious ri s k 

of th re ats , pressures and physical harm to witnesses and th e ir 

fa m ili es. I t is suggested th at the U. S. Atto rney s' offic es and 

enforcement agencies prepare supporting li s ts of witnesses in 

th e ir d is tr ic ts who have inc urred thre ats or harm upon discovery 

with ou t free disclos ur e. By way of example, a Western D is tr ic t 

of Pennsylvania l i s t would inclu de:

(a) Octabio DeLarosa, witness in U.S. v. Burrell 

and Baskin (bank robbery) - fo ur shots fi re d through 

his fr o n t window in to ch air he had ju s t been s it ti n g 

in .

(b) Nicky Fa rre ntino, witness in U.S. v. Bertone

(ITSP) - shot to death - case dism issed.

(c) Marge Mor ris , witness again st Zack Robinson in

U.S. v. Robinson, Brown et a l. (n arc otic s) - shot to 

death - Robinson ac qu itted .

(d) Emma Mozee, witness ag ain st Brown in above case - 

threatened - relocated a ft e r te s ti fy in g .

(e) Glic ks , witnesses in U.S. v. Raucci threatened, 

car firebombed.

(R. 16 , p. 19)
125

A d d it io n a l Comments fro m th e O ffic e o f R ic hard L. Th or nb ur gh ( c o n t 'd . ) :

2. The Government would have a more d iffic u lt time 

getting witnesses and inform ation in the f ir s t pla ce, at 

in ve st ig ato ry and grand ju ry stages. The vagaries of a co ur t 

findin g of "s u ff ic ie n t cause" to delay or deny disclosu re may 

be too uncerta in a prospect fo r many. Once the ru le of 

di sc losu re , with its atte ndant ri sks, becomes known, i t can be 

an tic ip at ed th at some persons w il l not supply inform ation from 

the beginnin g. The "I do n't want to get inv olv ed" syndrome 

should increa se.

3. The prov ision fo r co urt fin din gs exempting some 

witnesses and/o r cases from operation of the disc losu re ru le 

does not provide s u ff ic ie n t pro te ct io n. F ir s t, i t is subject

to the whims and p re d ilic tio n s of the various judges. Secondly, 

even sympathetic judges can be expected to se rio us ly consider 

exemption only in "organized crim e" cases. As can be seen from 

the W.D. Pa. l i s t above, "run of the m il l" drug vio la to rs and 

bank robbers are also qu ite capable of moving again st witn esses.

In cases of o ffic ia l co rruptio n, use by a defendant of the powers 

of his o ff ic e to de ter or dis cre dit witnesses can be contemplated.

At the very le a st, the ru le should be amended to prevent disc losu re 

upon the filin g of an a ff id a v it by the U. S. Attorney th at in his 

good fa it h judgment disclosu re in a given case would not be in 

the best in te re sts of ju stice .

4. Dis clo sure would preven t the development of valuable 

inform ation a ft e r ind ictmen t. In some cases, persons who have 

provided inform ation about a subject-defe ndant have remained in 

conta ct with them fo llo wing indic tm ent and thus been able to 

provide fu rt her information he lpful in attain in g co nvictio n.

This would of course be obviated by po st-in dictmen t disc losu re 

of them as witnesses.

Provisions fo r Defense Dis clo sure are not a quid 

pro quo Making the New Rules Worthwhile or Palatable fo r the Government

1. Government knowledge of defense witnesses ha rdly 

protec ts Government witnesses from the hazards they face.

2. The requirements of defense disc losu re probably 

could not be enforced. I t is hig hly unlik ely th at a co urt would 

bar a "la s t minute" a li b i witnes s, fo r example, with any excuse 

from the defense fo r tar dy disc losu re . I f a co urt were to enforce 

these pro vi sions, due process and 2255 claims would abound.

(R. 16, p. 20)
126

From th e O ff ic e o f James R. Thompson, N. D. I llin o is :

Rule 16(a)(1 )(E ) provides th at the Government w il l 

furn ish to the defendant a w ritten l i s t of the names and addresses 

of a ll Government ca se -in -c hie f witnesses. Rule 16 (a)(2 )(C ) confers 

a sim ila r rig h t upon the Government. The attempted mutu ality is 

fo r appearance only and essentially il lu s o ry . In the ordina ry and 

vast m ajo rity of the cases, defendants do not call witnesses other 

than character witnesses, and the dis covery of th e ir names is value ­

less to the pro secution. Secondly, defendants, when they do call 

witnesses, do not know who th e ir witnesses are going to be u n til 

ju st before the witnesses are summoned because the defendants' 

ca se -in-c hie f must ba responsive to what the Government has proven, 

and th at cannot be firm ly determined u n ti l the Government is close 

to re st in g it s case.

Of a ll the proposed amendments, th is amendment is the 

most pro ble ma tic. I t opens an avenue fo r witness in tim id ation 

and subornation of pe rju ry . Adm itted ly, upon the showing of 

cause, the Government may withh old the names and addresses of 

witnesses. In those rare cases where dic ta ble , the saving clause 

has some m erit. However, o rd in a ri ly a pre dile ction of th at so rt 

is not pred ictable u n til i t has happened, and then i t is too la te .

This prov ision is also in d ir e ct contravention of an 

exi st in g Congressional enactment. Congress provided th at in 

ca pital cases, the Government must tender a l is t of witnesses 

(on ly 3 days p ri o r to t r ia l) . The very existence of th at 

special le g is la tio n shows th at Congress did not intend defendants 

in crim inal cases to have li s ts of witnesses in othe r categ ories 

of cases. Had they so intended, i t would have been simple to so 

pro vide.

From the l is t of witne sses, i t is a small matter fo r 

a defendant to co ns tru ct fo r himse lf the whole of the Government's 

case prior to t r ia l. Case law has stood stea dfas t again st the 

discovery of witness' names and the the ory of the pro secutor.

The reason fo r the tr aditio nal reluc tan ce to disclos e th at 

information is th at i t gives ample time fo r a defendant to 

fa brica te a defense and the more time allowed in which to 

fa bricate , the more fu ll proof and impenetrable the fa brication 

becomes. I t can be argued th at a defendant can always manufacture 

a defense, but under exi st in g ru le s, the time allowed is min ima l, 

and the chances of a good fa brication substa ntially reduced.

(R. 16, p. 21)
127

Pa ul J . Cu rra n, S. D. New York:

The Important provisions o f th is new Rule requ ire the 

Government to fu rn ish the defendant before tr ia l with a l is t of 

it s witnesses and a ll documents and other tang ible items to be 

introduce d at tr ia l or ma terial to the preparation of the defense 

fo r t r ia l. Reciprocal ob lig atio ns are imposed on the defense where 

applicab le. P re tr ia l deposition s of witnesses whose names are 

dis closed are made mandatory on the applic atio n of the disclos ing 

pa rty .

On the surface Rule 16 gives the impression th at it s 

dra fters doubtless intend ed --t ha t i t is designed to improve the 

fairn es s and accuracy of outcome in crim inal cases by prov iding 

both sides with more extensive p re tr ia l disc losu re than he retofore au thorize d. In prac tic e the Rule w il l increase the lik elih ood 

of misca rria ges of ju stice by prov iding crim inal defendants with 

the op po rtun ity and temptation to dispose of or "reach " the Government's witnesses before t r ia l. It s use o f deposition s as a 

p a ll ia ti v e to th is danger, which in many cases w il l be to innocent 

members of the public , cannot be othe r than in s u ff ic ie n t, overburdening to prosecutors and judges a lik e , and ob stru ctive of the 

prompt dis positio n of crim inal cases. The requirements concerning 

p re tr ia l document production w il l be impossible fo r the prosecution 

to dis charge, no matter how hard 1t trie s , and the re sult w il l be 

endless lit ig a tio n , reve rs als, and new tr ia ls over matters th at 

could not have made any differ en ce to the proper deter mination of 

the g u il t or innocence of the defe ndant. The re ciproc al rights 

of the prosecution to make discovery of a defendant's case w il l be 

illu s o ry because they w il l not be s tr ic tly enforced and because 

most defendants o ff e r no witnesses or evidence at th e ir tr ia ls .

In short, Proposed Rule 16 adds enormously complicated 

problems and unnecessary risk s to human lif e to the ad ministrat ion 

of crim inal ju stice without co nfer rin g commensurate le gitim ate 

be ne fits on either sid e. I t pr otract s p re tr ia l proceedings and 

offers a host of collate ra l leg al problems having nothing to do 

with the determination of g u il t or innocence.

The lim it a ti o n upon the disc losu re of oral statements 

by the defendant to those made to persons whom he knows are law 

enforcement agents should be extended to w ritten and recorded 

statements as w e ll.* I t should be made cle ar th at the phrase

* This extension would have the e ff e ct of ove rruling such cases 

as United States v. Crisona, 416 F.2d 107 (2d C ir. 1969). That 

de cision , we be lie ve , construes exis ting Rule 16 in a way which 

co n flic ts with 18 U.S.C. Section 3500. See United States v. 

Perce va ult, 490 F.2d 126 (2d C ir. 1974).

(R. 16, p. 22)
128

Paul J. Curra n, S. D. Kew York (c o n t' d .):

"known to the defendant to ba a government agent" should be lim ited 

to agents whom he knows are engaged in in vest ig ating his conduct.

In oth er words, i t should not apply to an IRS Agent whom the 

defendant thinks is accepting a bribe, but who, in re a li ty , is 

acting in an undercover capacity.

Inso far as corpo rations are concerned, the Court should 

order disc losu re of the Grand Jury testimony only of those off ic ers 

and employees who can bind the co rporation by th e ir Grand Jury 

testimony. There is no reason to disc lose to the corporation the 

testimony o f, fo r example, former corpo rate o ff ic e rs who are now 

te s ti fy in g again st the co rporation. Otherwise, a situation could 

be created where the Government, in ord er to in d ic t the corporation 

might be forced to dis clo se it s entire case through Grand Jury 

testimony with ou t any reason th ere fo r.

This paragraph compels the Government to dis clo se to 

the defendant every sing le exhib it with ou t exception th at the 

Government proposes to o ff e r as part of it s case in chie f. The 

main problem here is th at th is may come close to compelling 

disclosure of the id e n tity of every sing le person who w il l te s tif y 

since id entify in g the papers may ne ce ss arily id e n tify the person 

who w il l be te s ti fy in g concerning them. The ob jection to th is 

change, th ere fo re , must be considered in conju nction to the 

objections in 16 (a )(1) (E ). I t should be noted th at the reciproc al 

provision fo r discovery of defense evidence under 16 (b)(1 )(A ) w il l 

prove to be il lu s o ry fo r the reason set fo rt h in connection with 

16 (a )(1)(E ).

More s in is te r is the requirement th at the Government 

also disclose to a defendant any othe r such items " . . . which 

are material to the pre paration of his defense . . ." . The 

Advisory Committee's statement, 48 F.R.D. 553, 602 (1970), th at 

th is ru le is merely a part ia l codific ation of Brady v. Maryland,

373 U.S. 83 (1963), is in co rrect . F ir s t of a l l , the Brady 

standard is "evidence favora ble to the accused . . . ma terial 

to g u il t or to punishment . . . " Brady v. Maryland, supra,

373 U.S. at 87. A simple comparison of the Brady standard to 

the prov ision in th is subsection of Rule 16 estab lishes th at 

the standards are not the same, and i t is cle ar th at Rule 16 as 

w ritten would re qu ire disclosure of the kind of information which 

has not had to be disclosed under exis ting law. E_.g_., Moore v. 

Illin o is , 408 U.S. 786 (1972); United States v. Ruqqiero, 472 

F.2d 559, 605 (2d C ir .), c e rt, denied, 412~U.S. 439.(1973). In 

additio n, the applic atio n of a standard of m a te ria lity to

(R. 16, P

. 23)
129

Pa ul J . Cu rra n, S. D. Now York (c o n t' d .) s

pre paration fo r tr ia l ra ther than m ate riality to g u il t or 

punishment 1s lim ited by those cases which have developed i t * ,

* Some considerab le question may exis t as to whether these cases 

do not go fu rt h e r than the Supreme Court meant to 1n Brady.

e_.£., United States v. Kahn, 472 F.2d 272, 287 (2d C 1r.), c e rt. 

denied, 4 ll U.S. 982 (1973), to cases of delib era te or gros sly 

ne gligen t pr os ec utorial suppression, but 1t 1s not so lim ited by 

» the ru le . The Advisory Committee Note on the meaning of Brady,

ci te d supra , 1s overbroad and ambiguous fo r th is very reason. 

Compare United States v. Pfin gst , 490 F.2d 262, 275-277 (2d C ir. 

1973).

Most im po rta nt, as the above suggests, the burden of 

fu rn ishing a defendant with a ll documents or ta ng ible ob je ct s, 

regardless of the obviousness of th e ir value to him, which are 

"m aterial to the preparation of his defense" is an imp ossible one 

fo r the prosecution to meet, as the Second C ir cu it e x p li c it ly 

noted in United States v. Ruggiero, supra , 472 F.2d at 605.

Existing law places on the defendant the burden of part ic ula rizin g 

the kind of ma teria l he believes w il l be exculpatory. United 

States v. Brawer, 367 F.Supp. 156, 171 (S.D.N.Y. 1973) ,~a~ff'd. ,

Dkt. No. 72-2199 (2d C ir ., May 3, 1974). The s h if ti n g of th is 

burden to the pro secutor in the p re tr ia l contex t w il l requ ire an 

unatt aina ble omniscience on his part , fo r who but the defendant 

can know what is "m aterial to the pre paration of his defense."

The re su lt of th is Rule w il l be endless accusations of suppressio n, 

more hearings in the D is tr ic t Courts and more work fo r the Courts 

of Appeals, a ll of i t unnecessary and none of i t li k e ly to fu rt her 

the ad ministrat ion of ju stice.

This is the prov ision th at require s the disc losu re of 

the names of a ll witnesses who w il l te s tif y fo r the Government 

1n it s case 1n chie f. The oth er important prov ision here is th at 

i f the Government provides these names in response to a req uest, 

the Government acq uires the ri g h t to take th e ir testimony by 

de po sition in ord er to perpetuate i t . This appears to be aimed 

at minim izin g the danger of Government witnesses being murdered 

or in tim idate d. (The recip rocal prov ision perm ittin g defendants 

to take de position s is no t, presumably, intended to serve the 

• same purpose. Apparently i t is merely intended to create an

appearance of symmetry and has no ra tional fu nction.)

I t 1s assumed th at the problem of the murder, in ti m i- 

. da tio n and sub ornatio n of Government witnesses was considered by

(R. 16, p. 24)
130

P a u l J . Curran, S. D. New York (c o n t' d .) :

the Advisory Committee in connection with th is prov ision of Rule 

16. We be lie ve , however, th at the Advisory Committee must have 

been unaware of how common such conduct is . The fo llo win g are 

some of the cases which have reached the ap pe lla te leve l in the 

la s t two years notwithsta nding the depradations or attempted 

depraditio ns again st Government witnesses:*

* Some of the cases cite d were affirm ed with ou t op inion; thev 

are signaled "* *"

1. United States v. Arroyo, Dkt. No. 73-2193 (2d C ir ., March 22, 

1974), s lip op. at 2320 n. 11—a Government inform ant was 

murdered shortly a ft e r a na rcotics tr ia l at which his informa nt 

sta tus was revealed.

2. United States v. D1 2345Amato, 493 F.2d 359, 361 n. 1 (2d C ir.

1974)--a lower-echelon member of a na rcotics ri n g , who was 

arrested before the more imp ortant members of the ring and 

agreed to cooperate, was found murdered ten days a ft e r his 

arrest .

3. Uni' t ed States v. Za nfa rdinq, Dkt. No. 73-2778 (2d C ir .,

HarcK 14, 1974)** -- S ix defendants paid two New York City 

Police de tective s $100,000 in cash to destroy videotapes 

of th e ir na rcotics a c ti v it ie s and to fu rn ish them with 

the address of a princip al government witness so th at she 

could be murdered.

4. United States v. C lo ffl, Dkt. No. 73-2612 (2d C ir ., March 14, 

1974)--a ttempt to in tim id ate prospe ctive Grand Jury witness 

in stock fraud in vestigation.

5. Prior to h1s tr ia l in February, 1972, fo r na rcotics conspiracy 

Vincent Pace!1i , J r ., murdered Patsy Parks by cuttin g her 

th ro at; Parks had sought out Pac elli on the night he k ille d 

her to te ll her th at the Government was attem pting to subpoena 

her to te s tif y at his t r ia l. United States v. P acelli, 491 

F.2d 1103 (2d C ir. 1974). At P acelli's na rcotics t r ia l, 

another young woman, with whom Pa ce lli had de alth in nar co tic s, 

repudiate d her p ri o r statements im plic atin g him and fa ls e ly 

te s ti fi e d th at she did not even know P acelli. United States

v. P a ce lli, 470 F.2d 67, 69 (2d C ir. 1972).

(R. 16 , p. 25)
131

Paul J . Cu rra n, S. D. New York (c ont'd.') :

6. In United States v. Rosner, 485 F.2d 1213, 1218 (2d C ir.

1973), an attorney and a pr ivate in vest ig ato r engaged in , 

among other th in gs, a p lo t to murder George Stewart, a 

cr uci al Government witness in Uni ted States v. Bynum, 435 

F.2d 490, 493-495 (2d C ir. 1973T The defendants in Bynum 

had themselves, p ri o r to th e ir arr ests , almost succeeded in 

th e ir plan to murder Robert Wollack, a New York City Police 

o ff ic e r and drug deale r whom they suspected of revealing 

th e ir a c ti v it ie s to the a u th o rit ie s . United States v.

Bynum, supra , 485 F.2d at 495. Ir o n ic a lly , Wollack was no 

str anger to such forms of witness tampering, fo r when a 

member of his. na rcotics gang was arreste d a few months p rior 

to the attempt on Wollack's lif e , Wollack took him to the 

off ic es of some atto rn ey s, where they discussed whether 

they had been betrayed by an inform ant whom they ought to 

k i l l . United States v. Wollack, 485 F.2d 1398 (2d C ir.

197 2).*’

7. United States v. Boyd, 489 F.2d 752 (2d C ir. 19 74 )** -- 

A fter the truck hija ck in g which formed the basis fo r th is 

prosecution , one of the hijack ers went to the home of the 

vic tim and in tim idat ed him in the presence o f his w ife; 

another subsequently sent him a threaten ing le tte r. As a 

re s u lt , a ft e r the arr est of one of the hija ckers , Crawford, 

the vic tim refused to id e n tify him, either in a lin e-u p or 

at his f ir s t t r ia l, which ended in a hung ju ry . Between 

the time of Crawford's f ir s t tr ia l and the time of his 

second t r ia l, at which he was convicted on the vic tim 's 

testimo ny, Crawford particip ate d 1n the attempted robbery 

of a United States Postal Service tr uck, durin g the course 

of which the guard on the tru ck was shot and k il le d ;

Crawford ultim ate ly pleaded g u ilty to second degree 

murder fo r th at crim e.

8. United States v. Bonanno, 487 F.2d 654, 555 (2d C ir. 1973)-- 

An in div id ual who, a ft e r his arr est fo r counte rf eitin g, 

assis ted Secret Service agents in apprehending the defendant, 

refused to te s tif y at tr ia l because of his "f ear of physica l 

violen ce ".

9. United States v. Sclafa ni, 437 F.2d 245, 249 (2d C ir. 1973)— 

A ft er the arr est and Indictme nt of the defendants in th is case 

they attempted to change the testimony of the vic tim of th e ir 

exto rtio n scheme by in tim id ating him.

10. United States v. Lazin sky, 433 F.2d 1399 (2d C ir. 1973)** and 

United States v. Cuomo, 479 F.2d 688, 691 (2d C ir. 1973)-- 

A fter the Government was obliged to reveal the id e n tify of

(R. 16, p. 26)
132

Paul J . Cu rra n, S. D. New York (c o n t' d .) :

the Informant who had par tic ipat ed 1n the tran sa ctions 1n 

both of these cases, the informa nt te s ti fi e d fo r the defendants 

fa ls ely cla iming th at he had framed them.

11. United States v. C lr illo , 468 F.2d 1233, 1240 (2d C ir. 1972)- 

The defendant hired an assassin to murder the principal Government witness again st him, despite the fa ct th at the witness was 

in pr ot ec tiv e custody 1n a remote lo cation.

The cases discussed above are not fu ll y demonstrative of 

the problems th at th is prov ision of Rule 16 w il l cause. F ir s t of 

a ll, as noted, these are cases 1n which the acts o f defendants 

against Government witnesses did not prevent th e ir co nv ictio n 

However, such cases are ju s t the tip of the Ice berg, and fa re ’more 

fre qu en tly the suborna tion, In tim idatio n and murder of Government 

witnesses prevents co nv ictio n and, often, even indictmen t. For 

example, in the la s t two weeks an In divid ua l coopera ting with our 

o ff ic e in a Grand Jury in ve st ig at io n was apparen tly driven to 

commit suicide by the pressure put on him by a prospective 

defendant who had learned of his coopera tion. Second, and ju st 

as importa nt, in most of the cases cited above the defendants 

were aware of the prospective witnesses' id e n ti fi e s withou t being 

furnished with the kind of "shopping l is t " which the Government 

w il l now be req uired to fu rn ish.

The proposed Rules have provided two devices which are 

apparen tly designed to fo re sta ll the murder, in tim id ation and 

subornation of Government witnesses. One is the pro te ct iv e order 

provision in Rule 16 (d )(1); the oth er 1s the depo sition procedure 

in Rule 15 and Rule 16 (a )(1)(E ). Ne ither w il l be e ff ective.

F ir s t, the pro te ctive ord er prov ision in Rule 16(d)(1) 

permits a tr ia l judge to deny or defer discovery o f the id e n tity 

of a Government witness "[u]po n a s u ff ic ie n t showing". However, 

since the polic y o f Rule 16(a)(1 )(E ) cle a rly favors p re tr ia l 

disclos ure of the id e n tity of Government witnesses, i t is plain 

th at a "s u ff ic ie n t showing" cannot be the simple fa ct that 

defendants who are fac ing su bs tantial prison terms w il l often 

attempt to tamper with persons they know w il l te s tif y against 

them. This is the hard tr u th that Rule 16 (a)(1 )(E ) simply ign ore s, 

and in most cases i t w il l simply not be possible fo r the Government 

to foresee, beyond th is , th at a part ic ula r defendant in a part ic ula r 

case w il l attempt to tamper with a p a rt ic u la r witnes s, which is 

the kind of showing th at Rule 16(d) (1) appears to contemplate as 

the basis fo r a pr ote ct iv e order.

(R. 16 , p. 27)
133

Paul J . Cu rra n, S. D. New York (c o n t' d .) s

The altern ative of p re tr ia l deposition s of Government 

witnesses whose Id entity is dis closed is uns atisfactor y fo r a number 

of reasons.

F ir s t of a ll, the Rule cle a rly contemplate th at a witn es s's 

id e n ti ty w il l be disclosed and th at th ere after a depo sition w il l be 

noticed and taken. The taking of a depo sition can be subject to a 

host of de lays, both real and feigned. During th is pe rio d, a 

defendant w il l have plen ty of op po rtun ity to "reach" the witness 

i f he is so minded.

Second, the use of p re tr ia l deposition s by the Government 

w il l by no means destroy the in ce ntive to a defendant to murder or 

suborn Government witnesses, even i f a de position is su cc es sfully 

taken before hand. A de po sition is no subst itu te with a ju ry fo r 

a liv e witness. The testimony in a witn es s's p re tr ia l de po sitio n, 

even i f adm itted at t r ia l, w il l ne ce ss arily ca rry less weight with 

a ju ry i f th at witness is suborned or intim idat ed by a defendant 

in to giving testimony at tr ia l 1n c o n fl ic t with i t .

Third, because witness tampering cannot be foreseen 

by the Government in every case 1n which i t w il l arise, i t is 

cl ear th at the e ff ect of the prov isions of Rule 16 w il l be th at 

a ce rtain number of witnesses, and ther efore cases, w il l be lo s t.

Fourth, the takin g of de position s of a ll Government 

witnesses who are possible subje cts of witness tampering w il l 

put a burden on prosecutors which can simply not be substantiated 

with present manpower. Moreover, i t seems clear th at in most 

cases depo sitions w il l have to be ca rrie d out under the d ir e ct 

supervisio n of D is tr ic t Judges or Mag istra tes, thus adding to the 

demands on an already he av ily overburdened ju d ic ia ry . I f we are 

not mistaken , the re has been a widespread attack in rec ent years 

upon the Federal Rules of C iv il Procedure on the ground th at the 

delays involve d in discovery proceedings and the immense expense 

connected therew ith do conside rably more to defea t the ends of 

ju stice than to advance i t . There is simply no ju s ti fi c a ti o n in 

importin g th is situation in to the fie ld of crim inal ju s ti c e , 

where, fo r the most part, defendants never wish to come to tr ia l 

at a ll and where the fa ilu re to provide prompt dis positio n of 

cases has been a matter of widespread concern.

Perhaps the most important poin t to emphasize is th at 

th is Rule appears to have overlooked the principal purpose of 

law enforcement, which is the pro te ction of the public . We 

be lieve st ro ngly th at the law should not, in the name of

(R. 16 , p. 28)

44-625 0 - 7 5 - 1 0
134

Pa ul J. Cu rra n, S. D. New York ( c o n t'd .) :

"enlightened" discovery procedures, expose innocent members of 

the public , who have had the misfo rtune to be victim s of or 

witnesses to crim inal conduct, to such vio len ce or harassment 

as may occur to an ingenious defendant, who w il l have fa r more 

to gain under the new ru le than the present post tr ia l satisfa ction 

of revenge. The le gitim ate be ne fits which a defendant can derive 

from knowledge of the id e n tity of Government witnesses before 

tr ia l simply do not ju s tif y su bjecting these witnesses to the 

mercy of crim inal defendants beyond what is pres en tly req uired 

by the Co nfrontation Clause. This view also has a very 

pra ct ical side , fo r the prosecution pres en tly has d iffic u lty 

enought in securin g the cooperation of c iv il ia n witnesses who 

"d on't want to get invo lve d".

There are, of course, othe r ob jections to the de po sition 

procedures othe r than those outlin ed above. The use of a de po sition 

by the Government w il l require p re tr ia l disc losu re to the defendant 

of th at witn es s's testimony. The a v a il a b il it y of p re tr ia l deposition s 

w il l provide uneth ica l defense counsel with an op po rtu nity to take 

the deposition of Government witnesses before tr ia l by the simple 

device of li s tin g them as defense witnesses. The requirement in 

Rule 16 th at a defendant dis clo se the id e n ti ty of his witnesses is 

not li k e ly to be enforced s tr ic tly , and i t is fa r more li k e ly th at 

the Government's fa il u re to lis t a witn ess w il l re sult in the 

exclusion of th at witn es s's testimony than th at such a consequence 

w il l be vis ite d on a defendant fo r a sim ila r fa il u re . To the 

extent th at deposition s provide honest defense counsel with 

advantages, they w il l be compelled by conscience to pursue them 

to the li m it . This may in many instances conside rably increase 

the cost of prov iding the defendant with an adequate defense. Who 

w il l pay fo r a ll the time and a ll the tr anscripts th at would be 

involved?

(R. 16 , p. 29)
135

RULE 17

SUBPOENA.

Comments o f U. S. A ttorn eys

Ro bert W. R u st , S. D. Flo rida :

In regard to Rule 17 (f )( 2 ), th is amendment appears necessary 

in ord er to avoid the expense and pote ntia l hazard Involved in re qu iring 

the U. S. Marshal to produce a defendant at possible fa r o ff places of 

a witn es s's residence . However, said witnesses who may now have to 

trav el long distances on short no tice w il l probably not agreee.

Ro be rt J. Roth D. Kan sas:

Should provide th at deposition s of prison er witnesses 

should be taken on ly at place of confinement.

H. M. Ray, N. D. M is sis sip p i:

The Co nfrontation Clause as we ll as the requirements 

of Proposed Rule 15(b) would req uire th at a defendant be present 

(unless he waives same) at the tak ing of a de po sitio n. The 

witness or the defendant may be a dangerous person. Without 

some fu rt her m odific ation, the proposed ru le may cause tremendous 

expenditure of funds and manpower by the U. S. Marshal Service, 

Bureau of Priso ns, U. S. Attorneys and defense counsel as we ll as 

create grave danger to the pu blic i f deposition s of witnesses are 

taken at any place oth er than the place of confinement of an 

incarc era ted defendant or witness. Some of these problems would 

be ame liorated 1f Proposed Rule 15(a) and (d) are modified in 

accordance with my hereinabove recommendations (see comments of 

H. M. Ray, N. D. M is sis sip pi).

Exact language fo r re vision of proposed Rule 17 has not 

been for mulated, however from the comments of the various United 

States Attorneys concerning proposed Rules 15 and 17 i t 1s 

apparent th at th is pro posal, dealing with subpoenas, should undergo 

re vi sio n.

(R ule 17 , pa ge 1)
136

RULE 20

TRANSFER FROM THE DISTRICT FOR PLEA AND SENTENCE

Co nse nts o f U. S. A tt orn oys

H. N. na y, N. D. M is si ss ip p i!

Ru le 20(d ) sh ou ld pro vid e th a t th e U nited S ta te s A tt o rn ey 

" fo r each d is t r i c t " co nse nt to th e ju v e n il e pro ce edin g un der Ru le 20.

Ea rl J. S ilb e r t, D. C. s

W ith re fe re nce to Ru le 2 0 (d ), we ag ree w it h th e 

recom me ndation in th e Dece .b er , 1971 Rep ort to th e A tt o rn ey 

General conce rn in g th e p re li m in a ry d r a ft o f th ese pro posed 

amendments th a t th e co nse nt o f bo th th e U nited S ta te s A tt o rn ey 

in th e D is t r ic t 1n which th e ch arge s a g a in st th e ju v e n il e ar e 

pendi ng , as w e ll as th e United S ta te s A tt o rn e y in th e D is t r ic t 

in wh ich th e ch arge s were f r i s t bro u g h t, sh ould have a voic e in 

dete rm in in g wheth er a ju v e n il e is to be proc es se d 1n th e D is t r ic t 

1n wh ich he is fo und, and th a t th is subsection sh ould be c o n s is te n t 

w it h th e pr oc ed ur es s e t fo rth in subsection (a ) o f Ru le 20. Th us , 

th e wor ds , "U nited S ta te s A tt o rn e y" in lin e 8 o f subsection (d ) 

sh ou ld in ste ad re ad, "U nit ed S ta te s A tt o rn e y s."

(Rule 20, page 1)
137

RULE 29.1

CLOSING ARGUMENT.

Co.-nments o f V. S . A tt o rn e y s

Ric hard L. Th or nb ur gh , W. D. P en nsy lv ania :

Tha consensus in th is o ff ic e appears to oppose the 

Government clos ing f ir s t , and stro ng ly enough to warrant formal 

op po sition. This could be fashioned as fo llo ws:

1. Since the Government bears the burden of proo f, 

and a p a rt ic u la rl y heavy one, i t requires the la s t clos ing.

* 2. The custom and tr a d itio n in d is tr ic ts where the

Government closes la s t should not be disturbe d.

At the le ast, in ad ditio n to removing the lim itations 

on Government re buttal argument under the new ru le , express 

provisions should be made fo r un fette red re buttal. Otherwise, 

despite the removal of the origin al lim it in g language, i t can 

be an tic ipat ed th at some judges w il l regard lim it in g Government 

re bu ttal to be w ithin th e ir dis cr etion.

Pa ul J . Cur ra n, S . D. New Yo rk :

We are aware th at th is Rule is in e ff e ct in some other 

ju ri sd ic tio n s. We concede th at in some instances i t might make 

an improvement. However, we would oppose i t because we believe 

th at, on balance, i t w il l increase miscarriages of ju stice . This 

is p a rt ic u la rl y so because the scope of the Government's re buttal, 

which is not cle arly define d by the Rule, w il l be interp re ted by 

some judges to be very narrow. Summations w il l also be interrup ted 

by colorable ob jections fa r more often than at pre sent. On balance 

ju stice w il l be the lo se r.

(R ul e 2 9 .1 , pa ge 1)
138

RULE 32

SENTENCE AND JUDGMENT.

Comments o f V. S . A tt o rn e y s

J . P. F a r r is , S. D. Te xa s:

We feel th at the sectio n on disc losu re of the pre-sentence 

in ve st ig at io n would be unwise. In th is d is tr ic t the judges ge nerally 

do no t, in th e ir dis cre tion, autho rize discovery of the pre-sentence 

in vestigation, and i f th is ru le is implemented re quirin g th is 

disclosure upon request, we foresee many pra ctical problems no tw ith ­

standing the provisions allow ing ex cising, re-d oing , summarizing, etc 

We do not fav or th is as a pra ct ical solu tion to a problem th at dees 

not seem to exis t and th at has been adequately dealt with under the 

cases to th is time.

Rob er t W. R u st, S . D. F lo rid a :

Rule 32 sets out guide lines fo r the handling of sentence 

and judgment. No major changes have been made under th at por tio n of 

the ru le dealing with sentencing, except fo r the requirement of 

n o tifica tio n of the defendant of his rig h t to appeal. The advisory 

committee has added one sentence, making i t unnecessary fo r the 

court to advise the defendant of his rig h t of appeal a ft e r a plea 

of g u ilty or nolo contendere. This is a sensible additi on.

The major po rtion of the new rules is devoted to the 

handling of the pre-sentence in vestigation. The ru le would requ ire 

the pre paration of a PSI in a ll cases, unless the co urt otherw ise 

directs , in which case the ru le would now d ire ct the co urt to put 

it s reasons on the record . This change is not a benefic ia l one, 

as i t would li m it the court 's dis cre tion, and ju s t create a new 

appealable issue to weigh the su cc lfien cy of the court 's reasons 

fo r not ordering a PSI. C ertain ly , no su bs tantial ri g h t of the 

defendant is vi ola te d by not re quirin g a co urt to voice it s reasons.

As to disc losu re of the PSI, the ru le would a lt e r the 

present enactment by making i t Incumbent upon the co urt to disclos e 

the PSI les s any recommendations of sentence upon motion by the 

defense. Some dis cre tion is s t i l l allowed the co ur t in dete rmining 

what parts could be prop erly dis clo sed.

The ru le would also provide fo r the court, in lie u of 

disclos ing the re port fo r one of the reasons set out 1n (c )( 3)( A ), 

st ating a summary o f the factua l Inform ation con tlne d ther ein to 

be re lied on in determin ing sentence.

(Rule 32, page 1)
139

Rober t If. R u s t, S. D. F lo rid a ( c o n t 'd . ) :

As to the above change, i t is not a benefic ial one, as 

i t would again create a new appealable issue fo r a defendant to 

weigh the suffic ie ncy of the reasons sta ted as again st the 

sentence imposed.

James !■!. S u lliv a n , J r . , N. D. New Yo rks

Report received by U. S. Attorney James S ullivan, J r.,

Lia iso n Representative of the Legis la tio n and Court Rules 

Sub-committee to the Second C ir cu it Committee on Sentencing 

indica tes th at on January 7, 1974, the Ju dicial Council of 

the Second C ir cu it introduced and adopted as the polic y and 

pra ct ice of the d is tr ic ts in the Second C ircu it the directives 

as set fo rt h in the pending Proposed Rule 32(c).

From th e O ffic e o f Jam es R. Thom pso n, N. D. I l l i n o i s :

Rule 32 (a)(3 )(A ) and (B) provide the disc losu re of 

the inform ation contained in a pre-sentence re po rt or a summary 

of it s contents re lie d upon by the judge when the pre-sentence 

re po rt per se should not be disclos ed fo r various reasons. I t 

is easy to envis ion circumstances wherein the court 's summarization, 

in an e ff o rt to sh ield confidential sources, would au tomatically 

en lig hten the defendant as to who the co nfid entia l sources were, 

since certain types of information a ll are not privy to .

There fore, the attempted saving clause is not a saving 

feature at a ll and the mandatory disc losu re of a pre-sentence 

re po rt would au tomatically dry up re leva nt sources of information 

given under the protec tio n of c o n fid e n tia lity .

R ober t E. Ha ub er g, S . D. M is s is s ip p i:

Many persons would de cline to furn ish information to 

the Probation O ffic er i f they re alized th at th e ir name might be 

ava ila ble to the defendant or his counsel. Although the proposed 

ru le allows the Court to state o ra lly some of the factua l inform ation, 

some Judges would prefer ju s t handing over the pre-sentence repo rt 

to the defendant or his counsel.

(R. 32, p. 2)
Gen er al C on se nt s o f u. S . A tt o rn e y s

J . P. F a rris , S . D. Te xa s:

Based on our experience and our knowledge of the 

magistrates and judges in th is d is tr ic t, we feel th at an 

implementation of the proposed rules as w ritten at th is time 

would li k e ly generate ad ditio na l procedures and hearings, and 

would require at le ast an increase of 25% in the AUSA and 

se cr eta ria l support s ta ff, with no corresponding be nefit to 

the qualit y of ju stice administered and with the p o s s ib ilit y 

of su bs tantial detrim ent to the pu blic sa fety.

W illi am D. K e ll e r , C. D. C a lif o r n ia :

In regard to Rule 24 (c), th is ru le is not changed.

I fe e l, however, th at a change is appropria te to adopt the 

prac tice in the C alif orn ia sta te co urts; namely, th at alte rn ate 

ju ro rs are not released at the time the ju ry re ti re s but remain 

ava ila ble , although the y.a re kept separate from the ju ry deliber at ions 

I f a ju ry becomes inca pa citated, an alte rn ate can be added, thereby 

avoiding any requirements fo r a m is tr ia l.

H. M. Ra y, ll. D. M is s is s ip p i:

In add ition to speci fic comments regarding individ ual 

ru le s, there are ce rtain general comments which apply to the fu ll 

range of proposed changes.

F ir s t, don't change the rules at a ll. Considering the 

time i t takes fo r the Bar to become fa m ilia r with the new ru le s, 

fo r a proper case to ar ise presenting the ru le change fo r de cision , 

and fo r th at decis ion to find it s way in to a published op inion, 

there are undoubtedly many unanswered questions regarding the la st 

changes.

A ru le im plie s, and to ba of any usefulness re qu ire s, 

some degree of s ta b il it y . Every change in the rules is a fresh 

source of un ce rtaint y which can be removed only by li tig a tio n . 

Such li tig a tio n w il l in va riably invo lve needlessly upsettin g 

some co nvictions otherwise valid except fo r a misunderstanding 

of an amendment to the ru les. This of course is inh ere nt in 

the leg al process but i t can mount to in to le ra ble pro portio ns 

by p ilin g un ce rta inty on top of un ce rtaint y.

(General Comments, page 1)
141

H. M. Ray, N. D. M is sis sip p i:

Second, each proposed change should be care fu lly 

weighed in terms of the time and cost i t w il l add to a crim inal 

pro secution. For example, the auth oriza tio n and thus the 

encouragement of magistrates to examine on the record the 

complainant and othe r witnesses both on an applic atio n fo r an 

arrest warrant or at the in it ia l appearance before the ma gis trate 

where the arr est is made with ou t a warrant and also at the prelim in ary hearing seems to be a needless and expensive du plic atio n 

of e ff o rt.

The pro hib itio n again st issu ing even a summons on an 

inform ation unless i t is supported by a ff id a v it s showing probable 

cause in the elabora te deta il more and more required w il l re sult 

in unnecessary delay and inconvenience in prosecuting minor offenses, 

not only in U. S. D is tric t Courts but in a ll pro bability in prosecutions 

of minor and pe tty offense s before ma gis trates [see Rules 1, 2(a) and 

3(a ), Rules of Procedures fo r T rial of Minor Offen ses]. I t means th at 

an agent and attorney w il l have to in te rr upt th e ir oth er work to make 

arrangements to meet, and then meet to draw up an a ff id a v it which a 

secre tary w il l have to type and an attorney w il l have to review and 

perhaps have retyped wh ile the agent wa its so th at he can gn i t .

The requirements of broader discovery w il l be 

p a rt ic u la rl y burdensome in th is res pect. I t takes some tim e, 

es peci al ly in a case of any magnitude or comp lex ity, to go through 

a f ile and so rt out the documents and repo rts to be discovered 

to a defendant. I t is sometimes necessary to excise portion s of 

such documents and is fre qu en tly necessary to w rite the in v e s ti ­

gating agency fo r copies of documents which are only summarized 

in the re port. Furthermore, although the ru le contemplates th at 

the copying w il l' be done by the defendant, as a pra ctica l matter 

i t must be done by the United States Attorney since he is not 

going to allow his f i l e to go out of his o ff ic e and defense 

counsel does not o rd in a ri ly have po rta ble copying equipment.

I t is not unusual to spend a day gathering and copying 

documents, showing exhib its, and o ra lly answering oth er requests 

by defense counsel and th ere after to be served in the same case 

with a formal motion fo r more discovery which w il l re qu ire a 

response, b ri e fs , oral argument, and po ss ibly some fu rt her discovery. 

A ll of th is is under the present ru le and in ad ditio n to the response 

required by a motion fo r a change of venue and a motion to dismiss 

the indictmen t, and th ere after may fo llow motions to suppress 

evidence, fo r a b ill of part ic ula rs , fo r a continuance, fo r a 

severance or a challenge to the grand ju ry .

(G en . Cor a. , p . 2)
142

H. X. Ray, tt. D. M is si ss ip p i (c o r.t 'd .) t

These nig ht seem to be pe tty ob jections 1f raised 

again st reco gn ition of constitu tional rights but constitu tional 

rights are not 1n Issue. Even where the rules touch on constitu tional rights the question 1s not the enforcement of such rights 

but the tenuous extent to which the procedures fo r th e ir prosecution 

ought to be drawn out.

Third, th er efor e, each change should be weighed 1n 

terms of It s ne cessity. I f a change 1s neith er req uired by the 

constitu tion nor essential to a fa ir tr ia l 1n the common sense 

of the word then 1t should not be adopted merely to ra tif y the 

la te st academic theory or simply to give the g u ilty another 

tec hnica l weapon to fend o ff or attach a ju s t co nv ictio n. In 

making th is judgment each proposed change should be considered 

1n the conte xt of the entir e crim inal process, not in is ola tion 

as though i t alone were the only barr ie r standing between the 

accused and an un just co nv ictio n. In th is regard due account 

should be taken of the fa ct th at the re is in the crim inal process 

the stage known as the tr ia l where the prosecutio n reveals it s 

evidence and exposes it s witnesses to cross-ex amination. There 

is also prov ision fo r a motion fo r a new tr ia l where genuine 

claims of pre ju dic ia l surpris e by the proof or suppression of 

evidence by the prosecution can be heard and re lie ve d. Of 

course at th is stage mere claims of prejud ice are not so li g h tly 

en terta ined as before tr ia l since the co urt is no lon ger dealing 

in unknown quantities but can confidently judge such claims 

again st the record before i t .

Furthermore, a motion fo r a new tr ia l is not so 

easi ly used as a device fo r inducing err or as a p re tr ia l motion 

fo r dis covery. Many pre tr ia l motions are made in the hope they 

w il l be denied and the point can be argued as err or on appeal.

A conservativ e ru ling by the co urt on a p re tr ia l motion or pars imonious compliance by the prosecutio n w il l be in fla te d on hypothe tical 

facts in the Court of Appeals to a constitu tional de pr ivation of the 

gravest pr op ortio ns . Actually proving a ft e r tr ia l rea l prejudice 

re sultin g from a lac k of dis covery is a lo t harder to ca rry o ff.

This perhaps expla ins the re la tive negle ct by the 

revise rs of Rule 33 which has been amended only once to enlarge 

the time fo r filin g motions fo r new tr ia l in favo r of overemphasis on p re tr ia l remedies. Indeed the p ro life ra ti o n and 

expansion of p re tr ia l motions and the m u ltip lica tio n of grounds 

on which they may be granted threate n to reduce the tr ia l its e lf 

to a p o s t- tr ia l proceeding where the defendant a ft e r having 

pre -t ried every conceivable issue on the basis of the government's 

evidence with ou t ne cessarily reve aling a p a rt ic le of his own proof 

is given one la s t chance to catch the pro secutio n unprepared to 

meet some su rpris e defense or at le ast to persuade one member of 

the ju ry th at he should not be convicted.

(Gen. Co n., p. 3)
143

Earl J . S l l b e r t , D. C .i

We ge ne rally have not commented upon the Adv isory Notes 

to the proposed Rules, except where (1) we agree with the language 

of the ru le but feel the Advisory Committee Note opens the Rule to 

m is in te rp re ta tion, or (2) the language of the ru le , wh ile unob jectionable, 1s nevertheless vague and th at vagueness 1s not c la rif ie d by 

the Note. Wherever we have suggested substan tive changes 1n a ru le , 

we presume th at In the event those changes are accepted, the Advisory 

Committee Note w il l be ap prop ria tely mo dified .

While our comments above are set fo rt h 1n numerical order 

according to the number of the ru le commented upon, I should emphasize 

th at we are p a rt ic u la rl y concerned with changes which the proposed 

amendments would e ff e ct 1n Rule 4, "Warrant or Summons Upon Complaint", 

Rule 9, "Warrant or Summons Upon Ind ictme nt or In form ation" , Rule 11 (e), 

"Plea Agreement Procedure", and Rule 16(a )(1)(E), concerning discovery 

and inspection of the names and addresses and p ri o r crim inal records 

of government witnesses, as we ll as new language which we propose as 

subsection (D) of Rule 16 (b )(1), "Statements of Defense Witnesses".

In the event i t is decided to focus the Department's e ff o rt s to 

le g is la ti v e ly modify any of the proposed amendments on one or two 

ru le s, we be lieve th at primary attention should be given to an 

attempt to obtain these mod ifica tio ns .

We are stro ngly of the view th at the problems we have 

addressed with refe rence to Rules 4, 9, 11 (e), 12.1, 16(a )(1) (E ), 

as well as the additio na l pro vi sion, (D), we have urged as a new 

subsection to Rule 16 (b )(1), are of s u ff ic ie n t importance to be 

brought to the attention of the Congress in ord er th at these 

portion s of the Rules may be ap pr op ria tely mo dified before being 

approved.

Fro m th e O ffic e o f Janes R. Tho mpson, N. D. I l l i n o i s :

The amendments to the Federal Rules of Crim inal Procedure 

attempt to embody a philosophy of "fundamental fa irness " to defendants 

in crim inal cases. As dra fted, however, they are more a reac tio n to 

exis ting laws than a sound, well thought out system of workable rules 

in th e ir own rig h t.

(G en . Com ., p . 4)
144

From th e O ff ic e o f James R. Thompson, tl. D. I l li n o is ( c o n t'd .) :

The old rules do not exis t in a vacuum, but are the re sult 

of experience through case law and are supported by case law. Hew 

amendments en ter in a vacuum unsupported by case law and, unfo rtunate ly, 

too freq ue ntly beyond the mainstream of crim inal tr ia l pra ct ice.

The term "amendments" is a misnomer. Rather, they are a 

sudden and vio le nt in trusio n which in one stroke changes the basic 

underpinnings of fed eral crimina l ju stice as i t now exis ts . I t is 

uncontestable th at the re are aspects of the exis ting fed eral rules 

which lo g ic a lly should be subje ct to change, and in fa c t, some of 

the changes contained in the amendments are long overdue.

The his to ry of jurisprud ence is synonomous with fl u x .

Substantive laws and ad ministra tiv e rules co ns tantly change and

well they ought to . Past m od ifica tio ns , however, have been introduced

slow ly, care fu lly and with appro priate re fle ctio n in response to an *

exi st in g in to le ra ble .

Our experience with the ad ministrat ion of federa l criminal 

ju stice has shown th at the federal system, although substa ntially less 

than perfect , has been a good one. I t may be less e ff ic ie n t than a 

contemporary English system, but i t is rec ogniz ably and measurably 

better than a m ajo rity of state systems. It is better in th at i t is 

more e ff ic ie n t and fa ir e r, and i t has become th at under exis ting ru les.

The new amendments str iv e to bring in to opera tion what is 

envisioned as a philosophy of fairn es s to defendants charged with a 

crime. One might suppose th at the proje cte d amendments are a 

rea ction to a b e lie f th at the prosecution is in possession of a ll 

the trumps and the amendments balance the deal of the hands. The 

bringin g of a crim inal prosecution is d iv is ib le in to a multitud e of 

stages. More often than no t, prior to and during the in vestigative 

stages, the advantage is with the subject of the in vestigation.

Ho pefully, i f he is innocent, incr im inatin g evidence w il l never be 

found. Unfortuna tely, i f he is g u il ty , the uncovering of incr im inatin g 

evidence depends upon the s k il l and good fortu ne of the in ve st ig ato r.

Suffic e i t to say, during these ea rly stages, the 

advantage is not with the prosecutio n. The only time the advantage 

is with the pro secutio n is at the indic tm ent stage, fo r i t is then 

that the prosecutor may d ra ft the ind ictme nt in a manner compatible 

with what he knows the proof to be. In some instan ces, he may even 

elec t between a variety of statutes . At th is ju ncture , the advantage 

is with the pro secutor. *

The next stage is one belonging more to the accused than 

tc the prosecutor: the tr ia l. Every ru le of evidence, every word

(G en . Com ., p . 5)
145

From th e O ffic e o f Jam es R. Thom pso n, N. D. I l l i n o i s ( c a n t 'd . ) :

the prosecutor nay u tt e r, and every othe r face t of the crim inal 

tr ia l is geared and ca lculated to pr ot ec t the presumption of 

innocence.

There fore, i f the new ru les are destined to tr y to change 

a balance which may be envisioned to be to the advantage of the 

pros ec utor, th at supposed balance is only a vis io n.

Pa ul J . Cur ra n, S. D. New Yo rk :

We believe i t is fa ir to stat e th at these new Rules 

w il l make the prosecutio n of crime more d iffic u lt and time 

consuming with no improvement whatsoever in the ad m inistrat ion 

of ju stice in th is D is tric t. These pro posals, p a rt ic u la rl y 

Rule 16, w il l add a host of unnecessary p re tr ia l issues and 

procedures to federa l crim inal prosecution s, increasin g the 

demands on pros ec utorial and ju d ic ia l resources fa r out of 

pr op ortio n to the le gitim ate be nefits to be conferred on 

defendants. They w il l turn the ad m in istratio n of cr im inal 

ju stice in to more of a game than ever and w il l hind er , obst ru ct , 

and delay the prosecution of crime. In our judgment these provision s w il l re sult in a sig n if ic a n t increase in the number of 

g u ilty people who are either not brought to tr ia l at a ll or who 

are ac qu itted .

I t is not suggested, in support of the proposed Rules, 

th at exis ting provisions of the Federal Rules of Criminal Procedure 

work misca rria ges of ju stice or tend to prevent defendants from 

gettin g fa ir tr ia ls . Rather, we suppose, the changes in the Rules 

are intended to improve a system th at already works, i f not 

p e rf e ctly, at le ast well enough. However, the proponents of the 

new Rules have created prov isions whose capa city fo r unnecessarily 

co mplicating, de layin g, and increasin g the risks and expense of 

crim inal ju stice fa r outweighs the il lu s o ry th eor et hica l and 

superf ic ia l improvements submitted in th e ir sup port.

The most un for tun ate of the new Rules is Rule 16 . . . .

The foregoing comments esta blish, we suggest, th at the 

changes in many of the Federal Rules of Crim inal Procedure w il l 

cause miscarriages of ju stice and burdens to federal judges and 

prosecutors fa r outweighing the ben efits contem plated, by the 

proponents of the changes in the Rules. The changes are 

s u ff ic ie n tl y imp ortant and, we submit, harmful to warrant th e ir 

co ns ideration by the Congress before they become law.

(Ge n. Com., p. 6)
146

Mr. Rakestraw’. An d I would like now to tu rn to Mr. Th ornb urgh , 

who w ill discuss rule 16 and collatera lly rule 15.

Mr. Den ni s. Mr. Th orn burgh .

Mr. T hornburgh. Thank you, Mr. Ch airma n.

I am going to concentrat e pa rti cu larly on those pro visions of rule 

16 which drastic all y alt er the position of th e Gov ernment and defense 

in criminal cases with respect to the obligations to m ake disclosure of 

the names and addresses o f w itnesses, in pa rtic ul ar speak ing f rom th e 

De pa rtm ent o f Justice v iewpoint, focusing y our attention on the s uggested revisio n embodied in rule 1 6 ( a ) ( l) ( E ) .I am no t an academ ic; 

I have not mad e a pro tra cte d stu dy of th is r ule and the questions implici t in the sugg ested changes. I do not profess to be familiar with 

all of the case law t hat has develo ped in the are a of discovery in cri mina l cases. But I feel compelled, as a practic ing tria l law yer, and for 

the tim e being as a pra cticin g p ros ecu ting lawy er, to b rin g to th is committee’s attenti on the views of myself and my colleagues as U.S. attorneys withi n the 94 jud icia l distr icts wi th resp ect to the perceived 

metam orphos is in practic e with rel ation to the obligation to m ake dis ­

closure of th e names and addresses of witnesses previous to a criminal 

trial.

An d, inc ide nta lly, I think it is worthwhile to notice in th is area th at 

the U.S. attorney s who were canvassed an d solicited fo r views on t hi s 

one question were of a single mind, an d were concerned th at the 

chan ges embodied in the proposed rule s from pre sen t practic e, first., 

to a dis cre tionary righ t in court the p rod uctio n of the nam es and ad ­

dresses of witnesses, and finally, in th e final rule s of chariges suggested 

to a ma nd ato ry furnish ing of th is witn ess inf orm ation.

I would ad ve rt to the prob lem inhe rent in discovery in criminal 

cases. I think th at one of the difficulties th at is encountered conceptually is ma kin g the tran sit ion fro m a civil tr ia l env ironment t o a cri mina l tr ia l env ironment. Ju dg e We bster alluded t o the process of tria l 

as a search for t ru th . And indeed, in man y aspe cts any t rial is such a 

search. Bu t I th in k it is well to note—and I would refer to th e reference by Dr. K ar l Meninger in the book “T he C rime Pu nishme nt,” and 

an observa tion by Justice Dev lin with resp ect to criminal trials .

Trial by jury is not an instrum ent for getting at the truth, it is a process 

designed to make it as sure as humanly possible th at no innocent man is 

convicted.

An d o ur grea t co nstitutional p rin cip les of presum ption of innocence, 

the pro tection of the fourth, fifth, and six th ame ndm ents, and the 

w’hole body of law that has deve loped to make sure th at the chances 

of an inno cent man being convicted are in the finest and inviolable 

tra di tio ns of our constitutional democracy.

But when one moves out of the are a of con stitution al imper ativ es 

int o the need of pa rti cu lar rule s to be adopted in the imp lem entatio n 

of the orderly business of the ad minist ratio n of the criminal justice 

system, one necessa rily becomes involve d i n a process o f b ala ncing interests. An d I would suggest th at there are serious prob lems in the 

pa rticul ar ba lanc e th at has been struck w ith reg ard to th e pretria l dis ­

closure of the nam es and add resses of witnesses in Fe deral criminal 

cases. Th ere is a serious risk of phy sica l harm, of intim ida tio n, of 

attemp ts to suborn perju ry, of othe r ingenious means to ob str uct the 

process o f justice inhere nt in the proposed adoption of such a rule.
147

An d perhap s it is signif ica nt th at I as a law yer from Pi tts bu rg h 

in western Pennsylvania , appeare d to pre sen t tn is case to th is committee because, I thi nk , there is abroa d in th is lan d a fee ling t hat t his 

typ e of in tim ida tio n, o bstruc tion a nd the like, take s place only in places 

like New Yo rk or Chicago. The influence of modern fact and fiction 

and the news media attentio n upo n org anized crime figures and the 

attemp ts to co rrup t the process in ou r majo r metropolises sometimes 

leads us to igno re the fact t hat these kind s o f ris k a re inhe rent in most 

me tro politan areas a nd inde ed, in mo st areas where the criminal process 

proceeds.

I am bound, at the risk of engaging in an y tria l law yer’s pr opensity 

to tel l wa r stories, to c ertif y to thi s committee th at in my di str ict, the 

western distr ict of Pennsylva nia , we have had serious problems with 

the pro tec tion of witnesses. In a m ajor narc otics case, where th e pri ncipal defend an t was arr est ed in possession of over $300,000 in cash, 

the fr ui ts of a large-scale her oin distr ibution scheme, the Govern me nt’s 

princ ipal witness was sought ou t b y hir ed killers and assassinated before the case could come to tr ia l. An othe r witness was so haras sed and 

intim idated by agents of the de fend an t th at it became nece ssary to 

move her out o f the district and place her wi thin the prote cti on of the 

U.S . marsh alls .

In anoth er case a ma jor hijack ing case was deve loped wi th the aid 

of an inside man, who was moved out of the di strict and att em pte d 

to be kept as it were on ice fo r the tri al. On the eve of tr ia l he was 

assassinated in the St ate of Ohio.

In anoth er case inv olv ing large-scale political co rru ption withi n 

the cou nty pro sec uto r’s office in ou r distr ict, there was a constan t 

staccato of attem pts to intim ida te, sub orn pe rju ry , and the like, in an 

atte mpt to f ru strate this p rose cution.

Other cases involving assau lt on witnesses, the firing of weap ons 

at them in th ei r homes, and on the s treet, the bu rn ing of autom obiles, 

and other damag e to p hysical p rope rty , abo und.

Ind eed , I am compelled to note how bro ad th is ty pe of attempt 

to influence is by re fe rrin g only ha lf facetio usly to two cases whe re 

the de fen dant ma rried the princ ipal witness who was to testify ag ain st 

him in order to preven t he r testim ony ag ain st him. I do no t know 

th at this is a reflection on marr iag e, but pe rhaps a rem inder t h at the 

ing enuit y of the criminal elem ent know s no bounds.

All of these depre dations and ass aults on th e cri mina l jus tic e process took place witho ut the Government being compelled to fu rnish 

the names and addresses of witnesses in the pa rtic ul ar c rim ina l cases. 

And it is fo r th at reason, I think, th at the minds of prosecutors 

within the Federal criminal jus tice system are set upon th e pro spe ct 

th at might ensue if th is laun dry lis t of witnesses were to be made 

ava ilab le as seem ingly compelled by the rules. Th e compelle d disclosure would occur e arly in the process when we a re unabl e to insure 

the safet y of those witnesses and when the pa rticul ar defend an t 

is set free under the Bail Reform Act. no t with respec t to any 

th re at that he mig ht pose to witnesses, but only wi th res pect to the 

pos sibility th at he might not show up for trial.

It has been suggested th at the re are remedies fo r the Go vernm ent’s 

concern for wh at I suppose might be c harac terized as the p rosec uto r’s 

pa ran oia in these instances. Bu t I would subm it to th is com mittee
148

th at the reme dies th at have been referre d to are illusory in fact.

Th ere is in the rule its elf a kind of macabre jux tap osition of language 

which i ndicates t h at th e dr afters of the rule s themse lves reco gnize th at 

ma kin g these nam es and addresses available was a distinct th re at 

to the well-being of the witnesses and to the process of criminal 

justice. I ref er, of course, to the pro vision for taki ng depositions.

To pu t it quite blu ntl y, it said, do not wo rry even if the witn ess is 

bumped off, or even if the witness is reached, you will hav e a dep osition, and p erh aps in this day and age. as we have done in our dist ric t, 

a video-taped depo sition for use at t rial.

That is sma ll com fort to a witn ess who has pu t his fa ith in his 

Governm ent, who has come forw ard with some tre pida tio n to tes tif y 

about wrong doing of which he has know ledg e. Th e fact th at his 

testimony may o utlive himself, I th ink, is a p oor selling poin t to induce 

pub lic co operation in the criminal ju stice process.

It is also suggested th at the re is a rec ipr ocity fea ture here , th at ♦

the defe nse its elf is obliged to come fo rw ard with the nam es and 

addresses of witnesses which the Government may the n utilize in the 

preparati on of its case.

Some expression of advice was ind icated by Profe ssor Remington 

th at th e defense ba r was amo ng the vociferous supporte rs of th is need 

for reciprocity. I th in k it is no surpr ise when anyo ne attemp ts to 

tra de a pound of lead for a pou nd of gold , because there may well 

have been at some time in our process att em pts by the Government 

to a ssas sina te defe nse witnesses. Som ewhere there may have been attem pts by the Gov ernment to sub orn pe rju ry . An d the re may have 

been att em pts somewhere f or the G ove rnm ent to en gage in t he process 

of obs tructio n of ju stice th at I ha ve refe rre d to. Bu t I do not know of 

such instances. A nd I th ink th at one h as to think lon g and h ar d of the 

pa rti cu lar intere sts involved in the prosecutio n fun ction and the defense functio n. It ill serves the intere sts of the prosecution to engage in 

thes e act ivities where the s anction s impo sed are drastic and resu lt in 

the te rm ina tio n of what might have been a successful prosecutio n. On 

the oth er hand, from the defense po int of view, there is a nothingven tured-no thing-ga ine d pro position. It need not require une thic al 

counsel, bu t sometim es th ey are present. Bu t the defen dant him self, in 

cases th at I am person ally familiar with and can sum marize fo r this 

committee, knows no c onstrain ts t ha t wou ld hin der hi m befo re the b ar 

of justice in a tte mpting to enhance his case by worki ng these methods 

upon witnesses for t he Government.

Th ere is an even larger concern, however, with resp ect to the oth er 

suggestions th at there is some balm in Gilead for the paran oid 

pro secutor here. I t i t suggested th at a pro tective order can be ent ere d *

in a pa rticul ar case if t here is a sufficient showin g t hat th e pa rti cu la r 

ind ividual may be sub ject to some threat. I think th at pro tective 

order migh t well suffice in any g iven case. But I sugg est th at t he com ­

mittee look at the philoso phy embo died in th at kin d of appro ach 

to the prob lem. You are a sking a witness at the o utset of the proceeding to tak e a chance, to say to him , maybe we will be able to get a 

protective order th at will cause us to keep your avail ab ility as a 

witness secret from the defense. Maybe we will be able to keep you in 

aS ta te where you need not be looking over your shoulder an d l istening 

for those foo tsteps behind you. But I say gen erally, in the ove rall
149

problem of getting the cooperation of the public in criminal prosecutions—and Lord knows, today we must be, I would submit, concerned 

with the public’s belief in the integrity of the system to serve them 

as victims and witnesses, as well as potential criminal defendants— 

the public unfortunately, knows through the reports as recently as 

this summer with the tragic events of an escaped group in Colorado 

tracking down witnesses who had testified against them after the 

trial. And they know that there is a distinct possibility th at they may 

be subject to threats, intimidation and physical harm certainly before 

tria l when it would do a greater good to the particular defendants.

Mr. Dennis. Mr. Thornburgh, you are making a very persuasive 

argument. But I would like to ask you one question. You and I know

* tha t in preparing any case for trial the one thing we want to do is 

talk to all the witnesses on both sides. Now, are you not in efi'ect, 

saying that tha t kind of separation, which is almost essential, cannot

> be made by the defendant in a criminal case who probably needs it

more than anybody else?

Mr. T HORNBURGir. 1 do not know tha t tha t kind of approach is 

implicit in the process as it now goes forward. Certainly, there is a 

desire on counsel’s part, both defense and prosecution, to have available to him all of the evidence, all the facts that underlie the particu lar 

event that occurred. I emphasize from a fact point of view and not a 

constitutional point of view, I would like to have the defendant’s 

version of what happened, or physical evidence that may be protected 

bv the fourth amendment. By the same token, the defendant would 

like to have the Government’s files open to him. There is no question 

about that. There has even been some reference made to that this 

morning as a possibility.

Mr. Dennis. How is the defendant to prepare for a trial if he does 

not even know or have any way to find out who the witnesses are 

against him until they walk into the courtroom ?

Mr. T IIO RN BI’RGH. I have tried cases against some pretty good defense counsel who have not had the benefit of this rule. And they have 

been able to prepare and artfull y structure a very good defense. And in 

some cases—and I do not believe it was completely due to my incompetence—they have been able to secure acquittal because the Government failed to carry out the strong burden of proof th at exists. And I 

think implicit in the concept of tfie burden of proof that is lodged in 

the Government’s hands, the defendant has no burden, he must only

* introduce into the case some doubt, some reasonable doubt on the part 

of the 12 men in the jury, men and women in the ju ry, as to his guilt. 

So th at I do not think that this can be—and again I suggest, with all 

deference, Air. Chairman, I do not think tha t we can rely on analogiz-

* ing between the civil case and the criminal case because of the different 

rules that are observed in going forward with the trial itself. I 

acknowledge—and perhaps I did not make this clear—that if I were 

defense counsel in the preparation of the case, I would like to and 

would prefer to have the files of the Government open to me, or at 

the very least, a list of the names and addresses of the witnesses. I 

am merely suggesting—-and this is the whole thrust of my testimony 

before you this morning—that in the balancing of the interests between what the desire for the maximum effect toward the effective 

preparation of the case is by defense counsel, and the real,
150

not imagined, threat that exists to witnesses in cases like this, there 

be some recognition of the reality of the latter.

One other thing that 1 will acknowledge quite freely, that in many, 

many cases in my office the U.S.—assistant U.S. attorney, myself, who 

is trying the case, will sit down and will in effect open the file to the 

defendant in a case where we do not have these particula r problems 

available, and will use that as a tool to induce plea many times, or 

to indicate the strength of the Government’s case. What I am concerned about is a philosophy stated th at that should be the rule rather 

than the exception within the judgment of the prosecution as a matter 

of sound judicial administration.

Mr. Dennis. What would you think as a possible compromise of a 

rule which gave the defendant a right on an appropriate showing, 

to have the list ?

Mr. T hornburgh. T think tha t was what was indicated in the first 

draft that the advisory committee circulated. I have to be frank with 4

you, T am not as happy with that as I am with the present state of 

affairs. But T think some of the matters, particularly in matters of 

philosophy that I have adverted to this morning, would be touched 

upon favorably by that. There would then be a juxtaposition of the 

burden of going forward. And I think with greater equanimity I 

could talk to prospective witnesses about alleviating their fears of 

willy nilly disclosure of their names and addresses and locations.

Mr. Dennis. I thank you. Go right ahead.

Mr. Tin irnburgii. I think in the nearest of time. I am betraying, T 

am afraid, my trial lawyer’s instinct. And I will defer back to Mr. 

Bakestraw.

Perhaps T might suggest, if there are questions on rule IB. and par ­

ticularly this matter of witnesses, T will answer them now if the Chair 

wishes, or T will stay and answer them later.

Mr. Dennis. I think if there are questions that anyone wants to ask 

on this question they may ask them.

Mr. Hung, \te. 1 would just as soon go ahead.

Mr. Dennis. Mr. Bakestraw.

Mr. Bakestraw. I will introduce Mr. Bay. who will discuss rules 

4 and 9 in the same manner in which Mr. Thornburgh discussed rule 1G.

Mr. Dennis. Mr. Bay.

Mr. R ay. Mr. Chairman and members of the committee, it is a real 

honor for me to appear before you here today.

I am afraid that T cannot discuss this in the manner that my dis- «

tingu’sb ed colleague from the western district of Pennsylvania did.

And in the interest of time. T will refer you at this time to materials 

which are before you which I think clearly set forth my position.

Yon have the red book, as we call it. This is a compilation of views *

of U.S. attornevs across this land. And T put them together as chairman of the Subcommittee on Buies and Legislation, particularly rules 

4 and 9. And almost, without exception, we view these rules as causing 

tremendous additional work. We are not all the same in this country 

in the first place, we do not sit all in one courthouse. T want to make 

that point.

T was up on speedy trials a few days ago when the idea was put 

forth that the U.S. attorneys have offices and can readily go before 

magistrates all over the ir district. Tha t is just simply not true. And so
151

Ave, of course, oppose the rules 4 and 9 changes, for the reasons set 

out in Mr. Kak estraw 's s tatement, namely, we believe that by c hanging 

the rule to make it a matter of sta nd ard procedure that you issue a 

summ ons, and if you want a wa rra nt, then you have to show valid 

reason, we believe that th at rule will increase defen dants—defen dants 

will learn of th e charge s, an d they will be h ard to catch.

Fo r exam ple, in the District of Columb ia here, 25 perc ent of the 

defen dants in pen din g cases, a study showed, we n1

 fugitives. We believe that the summ ons requ irem ent would give criminal defen dants 

an oppo rtu nity to learn of crime s again st them , to fab ricate and destro y evidence, ami secrete evidence.

Mr. H ungate. May I inquire?

You men tion the Di str ict of Columbia. Does it use the summons 

system or the w arrant system ?

Mr. Kay. That is under the present system, is it not ?

Mr. G reene. That is under th e ex isting system.

Mr. 1 Iungate. Summon s or wa rra nts ?

Mr. Greene. They are usin g a com binatio n of summ ons and warrants. 1 th ink th at in th e Federal distr ict court in a ma jority o f cases on 

pre ind ictme nts c ert ain ly in the felony area we use wa rra nts, alth oug h 

the re a re summ ons used also.

Mr. TTvngate. What percentage would you estima te are summons?

Mr. Greene. T would think—and it is only a guess—I would think 

it is a small percentage , 5,1 0, or 15 pe rcent.

Mr. Dvngate. Th an k you.

Mr. Kay. And the n we th ink it would increase the likelihood of law 

enforceme nt officer's, as has been bro ught out by the othe r witnesses, 

going ahead and arresti ng without taking the trou ble to secure a 

wa rra nt.

I think one of the most importa nt con sideration s is t ha t we believe 

th at this would delay the whole process of moving trials throu gh the 

distric t cou rts, and th at the addit ion al time require d to locate defen dants ’ addresses, serve summonses, and await their app ear ance in 

court on designated dates and ultim ate ly obtain the issuance and 

execution of arrest Avarrants in commonplace instances of nonap ­

pea rance Avill certa inl y fos ter delays between the commission of offenses and the ap pre hen sion o f suspects.

Of course, the language we have proposed is p re tty much like rule 4, 

except that the re is one significa nt difference. Of course, a g rand jury 

has retur ned an ind ictme nt, and th at spea ks fo r prob able cause itself. 

Of course, in rule 4 you have got a c omplaint which I assume is pro bable cause, or a mag ist rate would not issue the papers. And we can 

see t ha t if the rule goes thr ough in the pres ent form th at this might 

even cause some problem s Avith the tri al of minor offenses. We may 

have to use s ecretaries and agents to do a lot of paperw ork here. We 

are qui te concerned abou t the burden th at it is going to pu t on us in 

I ’.S. att orneys offices to comply with this. The rule as set ou t to the 

bench and bar- by the court did not have this proposal in it. Th is was 

changed . And the first time we saw it as I ’.S. attorn eys were when 

the rules were tra ns mitted over to the Cong ress. The earlier r ule proposals sent out to the bench and ba r for comment did not have this 

language in it tha t is before you.
152

I would like to just take questions. I think th at our prepared testimony here probably deals with this quite adequately. But if there are 

any questions on these two rules at this time, 1 would be prepared to 

answer them.

Air. Hungate. The first d raft tha t went around had rules 4 and 9 

in it?

Mr. R ay. Yes. But the draft that went out to the bench and bar in 

.January 1970, did not propose to take away the right of the U.S. attorney to get a w arran t on his request. And I might say that we propose in rule 4 that the rule be changed to provide th at a warrant shall 

issue whenever, (1) a defendant fails to appear in response to a summons, or (2) upon request-----

Mr. Hungate. Tha t is in the rule now ?

Mr. Ray. That is in the rule now as proposed. And we proposed, 

though, tha t a warrant should issue on request of the attorney for 

the Government. We feel, quite frankly, tha t the prosecutor would be 

able to know which people are likely to flee, and that to engage in 

having to have a summons for him is a useless procedure.

Air. Hungate. What is the police, whether it is FB I or other police 

agencies, input into this determination now ?

Air. Ray. As you perhaps know, on all complaints the U.S. attorney 

authorizes the filing of complaints, except for the agencies such as the 

Bureau of Alcohol, Tobacco, and Firearms, where the agent actually 

catches the offender in the commission of an offense. So when the 

agent, the FB I, presents his case to the U.S. attorney’s office, the U.S. 

attorney gets filled in at that time on the background of the defendant, 

and tha t kind of information.

Air. Hungate. You say the proposed rule increases paperwork. 

Would you give specific attention to that? I do not quite follow it.

Air. Ray. I might say th at I can turn to my own comments in the 

book here. This will mean that an agent and an attorney will have to 

interrupt their other work to make arrangements to meet and then 

draw up the affidavit^ which a secretary will have to type, and an 

attorney will have to review, and perhaps have it retyped while the 

agent waits so that he can sign it. The simple mechanics of this will 

be overwhelming.

Let me give you an example. I operate out of Oxford, Aliss. And I 

have three other division points. And I do not have any staff in these 

other division points. And vet, there are magistrates sitting there. And 

tha t is where the agents will take the case to be presented, if the offense 

occurs over there.

Air. Hungate. The agents will take the case there. W ill you have to 

show up there or not ?

Air. Ray. We will have to do the paperwork. And if there are any 

questions about it, there would be another minitrial. And in this day 

and time of having speedy trials, we think that, as a practical matter, 

this rule is just going to make life pretty hard for us to comply with.

Air. Hungate. In other words, this is requiring an affidavit tha t at 

present is not required; do T understand that rightly?

Air. Ray. Yes, sir ; that is the way we do it.

Air. Hungate. What about the words “valid reason” ?

Air. Ray. That concerns us.

Air. Hungate. Would you think tha t should be defined in the rule, or 

taken out?
153

Mr. Ray. We recommend in o ur forma l st ate me nt here filed w ith Mr. 

Ra kestraw 's testim ony th at t he Con gress does adop t the words “v alid 

rea son ”, th at it wo uld help us.

Mr. I Iungate. Tha nk you, Mr. Ch airma n.

Mr. Den ni s. Mr. Ray, really, the proposed change is ju st a sh ift 

in the burde n, is i t not? At the prese nt time, you get a w ar rant unless 

the distr ict att orne y says a summ ons is all rig ht. An d un der the pr oposed rul e you g et a summons unless t he d istrict attorney wou ld show 

the mag ist rate th at the re sho uld be a warrant, do you not? That is 

abo ut the size of it, is i t not ?

Mr. Ray. E xc ep t for one im po rta nt addition . It pu ts the presum p-

* tio n in favor of the summons.

Mr. Den nis. T ha t is w hat I am saying. Is th at n ot a humane sold of 

th in g to do? Do we not get a lot of th ese mi nor people in there whe n 

x there is rea lly no reason fo r them bein g arr ested and throw n in ja il

and havin g to post bon d ?

Mr. Ray. O f course, we are o pe ratin g un de r the Bail Bon d Reform 

Ac t now whe re the b urd en is on us to show why they should not have 

bail. We th in k th at t he proper tim e to let the magistrate and jud icial 

officer determine t ha t, is after the arres t takes place, th en the court does 

rule on that. A nd. of course, T noticed in one com ment filed ea rlier with 

th e committee, someone has su gge sted th at in rul e 9 we are pro po sin g 

the righ t to rea rre st. T ha t is, of course, a bsu rd. We op era te on the Bail 

Bon d Reform Act, and once a m an is arreste d on a complain t, he makes 

bon d to aw ait trial. So the re is no rea rre st.

Mr. Den nis. Do you feel th at as a U.S. att orney there s hou ld be a 

warrant , th at you are going to have much tro uble con vincing the 

ordina ry magistrate t hat this is a case fo r a w ar rant ?

Mr. Ray. I think it will depe nd on the m agistrat e, M r. Ch airma n.

Mr. Den nis. My experience in th e Fe de ral system is limited. I practiced more in St ate courts. Bu t such as it was, I never felt th at the 

DA had much tro uble convinc ing a magistrate of a lmo st anyth ing .

Mr. Ray. I think it ha s changed somewhat with the Magistrat e Act. 

An d I think it wou ld just depend on the ma gis tra te again. I th in k it 

might be, once the y have some experience. But i t st il l causes the ad di ­

tio na l workload to be there. And I ca nnot see th at it really contrib ute s 

to any signific ant ri gh ts or c onstitution al rig ht s that de fen dants mi gh t 

have.

* Mr. Den nis. I t hi nk when we get th e o ther gen tlem en back possibly 

we ought to ask them more than we did before wh at th eir rat ionale 

fo r the chang e is. We did not go into th is very much.

I th an k you. Go ah ead with yo ur p res ent ation.

* Mr. Ray. Before I comm ent on rule 11, M r. Th ornb urgh has a very 

good comment on rule 4 and 9 on the seizure of evidence.

Mr. T hornburgh. Oftentim es the arre st wa rra nt is used in an attempt to secure on the basis of pro bab le cause addition al evidence of 

the crim ina l act charge. And bv intro du cin g this new technology t hat 

in addit ion to probab le cause for arre st, there mu st be a valid reason 

for using a w arrant, th ere is a g re at deal of u ncert ain ty raise d as to th e 

justi ciab ility o f the question of valid reason and its effect on any evidence th at migh t lie seized at the time of the arrest. In other words, 

envision a parade of h orribles, a sit uatio n where a jud ge might ultimately determ ine th at the re was no valid reason fo r the issuance of 

an arrest warrant, and the su ppression o f the evidence th at was seized
154

in the exercise o f a wa rra nt tha t was issued on pro bab le cause. I su ppose wliat it gets back to is the difference of opinion to which the 

branches of governm ent the decision as to issuing the warrant or 

summ ons would at tach has already been touche d on.

Mr. Dennis. Would it help to use the lan guage “probable cause" 

here instead of “valid reason" (

Mr. Ray. 1 am not sure. Mr. Ch airma n, because the n you would 

have a split level dete rmina tion of probab le cause. One. probable cause 

of mak ing the arr est in the fiist place, and second, probable cause for 

filing the complaint, in the fii-st case, and the n the probable cause as 

to whether the pro per thing to use was the summ ons or the arrest 

wa rra nt.

Mr. Den nis. Sti ll you would be usin g a word of art t ha t has been 

defined, and if you could tra nslat e the same defi nition more or less, 

perha ps it might help the problem.

Mr. Ray. Th at is really th e presen t stat e of the law today.

Mr. Dennis . Th an k you. Go ahead.

Mr. Ray. We have one oth er comm ent from the Di str ict of Columbia on this.

Mr. Greene. T would like to first refer to a question th at Congressman Hu ng ate asked concern ing the his tory of who received notice 

about this rule. Not only was the rule in its prese nt form , tha t is, with 

the presum ption in fav or of the sum mons, and not in th e o rigina l committee dr afts, but the advisory note to those dr af ts indicate s th at 

virtu all y the only source for the proposed amendment was an art icl e 

by the distinguish ed 1 ’.S. distr ict judge for the sou thern distr ict of 

New York, Ma rvin Frankel, in which he adv oca ted this rule on the 

basis only of his own experienc e as a judge. And he conceded in th at 

article in the ( ’olum bia Law Review where he advocated this change 

that 11 of his 13 breth ren on the bench for the sou thern distr ict of 

New Yo rk did not agre e with him. And the re is no case au thor ity 

or oth er au thor ity th at we have been able to discern for th is rule 

prop osal.

Second, if I could, in connection with rul e 4, I would like to comment on a question that was raised ea rlier by Mr. Blommer of one of 

the gentlem en who testified befo re us. And that the irony of leaving 

the custody determi natio n in a case where you do not have a wa rra nt, 

th at is, where you have no judicial scr uti ny whatsoever over the pro cess to t he law enforce ment officers, and yet are req uirin g the inter vention of the jud iciary in the custody determi natio n where the court or 

the ma gis trate det erm ines in the first instance the issue of probab le 

cause to arrest. We sh ould not lose sight. I think, hen* of the fact th at 

the j udiciary will still be m aki ng the cri tical and trad ition ally im portan t determination of whether probable cause exists to believe th at 

the accused has com mitted a crim inal offense. An d it is only at t hat 

po int t ha t the issue as to w hether a summons or a wa rra nt should issue 

is reached. An d I say th at pa rtl y also in response to your question, 

Mr. Chairma n, raising th e issue as t o whether th is is not just a sli gh t 

change. I think it sho uld be viewed in the p ersp ective of the fac t th at 

we still retain t he tradi tio na l need fo r the ma gis trate or the jud ge to 

make the d ete rm ina tio n as to probab le cause. And indeed, that de terminat ion , until these rules, has alw ays been thou gh t of as a de term inatio n of pro bable cause to arr est . Probable cause to believe the
155

de fend an t has com mitted an offense has been viewed as one and the 

same as pro bab le cause to arrest. And really, what th is proposed rule 

does is to separate an d dis tin guish between thes e two determinations 

as thi ngs th at are sep ara te. But t raditio na lly , in o ur system the y have 

always been viewed as identical.

Mr. Ray. Mr. Ch airma n, regardless of whether the judic iar y or 

the executive has the pow er here, we do feel th at this is a question that 

the Cong ress, 1 guess under the necessary and prop er clause, sho uld 

resolve. A nd we hope th at you will tak e suggestion s on these two rules 

that are filed with o ur papers here.

Now, we would like now to talk some about rule 11. I notice th at 

seems to have been of g reat concern t o the committee.

While the Departm ent of Ju sti ce is p leased th at t he amende d rules 

recognize the plea ba rgain procedure, we oppose those provisions of 

the amen ded rule 11 which (1) could be construed as pe rm itting the 

court to reject a ple a agre ement based upon a dismissal of oth er 

charges, (2) wou ld require, w ithout exception, disclosure of the agreement in open court , an d (3) could be con strued as pre clu din g admissibility in all circ ums tanc es of statem ents mad e in the negotiation 

process.

Th e ame nded rule could be constru ed as sanctionin g an unw arranted 

inf ringeme nt by the ju dic iar y on th e powers o f the executive. The plea 

agre ement pro ced ures set forth in subdivisio ns (e) (2 ), (3) and (4) 

should make clear th at the court may decline to accept an agreem ent 

only on the grou nd that the max imu m sentence agreed upon is too 

ha rsh or inadequate; the court should not be pe rm itted to reject an 

agreement it deems too lenient or too res trictive with respect to the 

dismissal o f counts o r the reduction in g rade of the offense cha rged. In 

the se ntencing area t he court’s prero gatives are ad mi tte dly param ou nt, 

hut no rule should be pro mu lga ted which int rudes the jud gm ent of 

the court in the executive decision to cha rge or to dismiss cha rges— 

areas tra di tio na lly reserved fo r the exercise of pro sec uto rial 

discretion.

Th ere are just many, man y cases giving this power, the executive 

decision, to dism iss, to charge or not charge. And we th in k the rul e 

ought to be c learly stated in those areas th at thi s is executive decision, 

while we ce rta inly admit a nd insist tha t the co urt 's ruling in sentencing 

when you get t o specific sentences is para mo unt.

We would recommend th at the re be some chan ge to the r ule in section (e ), rule 11 (e )(1) . We would sug gest language th at generally 

tra cks wha t the adv isory comm ittee has recom mended. But the re is 

some sli gh t difference. We would suggest, that (e )( 1) read :

The at to rn ey fo r th e Gov ernm en t an d th e att orn ey fo r th e def en dan t or th e 

de fe ndan t whe n ac ting pro se ma y en ga ge in disc us sion s w ith a vie w to w ar d 

re ac hi ng an ag re em en t th at, upon th e en te ri ng of a ple a of gui lty or nolo conte nde re to a ch ar ge d off ens e or to a le ss er or re la te d offe nse, th e at to rn ey fo r th e 

Gov ernm en t wi ll move fo r dism issal of oth er ch ar ge s, or will rec om me nd or no t 

opp ose t he im po sitio n of a p art ic ula r senten ce , o r will do b oth

Now. th at is the wav the rule reads— we would suggest the following addit ion al lan gu ag e: “or will agre e th at a specific sentence is the 

ap pr op riate disposition of the case.” An d then the same language , 

“The court sha ll not pa rti cip ate in any such discu ssion s,” should be 

left in.
156

An d the n on the notice of the agreem ent, 11( e) (2 ), we would pr opose tha t th e lang uag e re ad r

If a plea agreement lias been reached by the parties, the court shall require 

the disclosure of the agreement in open court, except for good cause shown,

An d that is the only ad dit ion in that sentence—

at the time the plea is offered. Thereupon, the court shall accept the plea 

unless tlie pa rties have agreed that a specific sentence is the appropriate disposition of the case, in which event, the court may accept or reject such agreement 

for a specific sentence, or may defer its decision as to acceptance or rejection 

until there lias been an opportunity to consider the pre-sentence report.

So what we a re sug gesting here is t hat if we are only talki ng ab out 

dism issal of counts, red ucing the cha rges, or a mere reco mmendation 

of sentence—if we are not dea ling with a specific sentence, the n the 

court a t t hat time sh ould accept or reject, but if it deals with a specific 

sentence, the n the court should have an op po rtu nity to examine the 

presente nce rep ort .

Now, we would prop ose a new section su b(e) (3) and (4) which 

wou ld re ad:

If the court accepts a plea agreement for a specific sentence, the court shall 

inform the defendan t that it will embody in the judgment and sentence the disposition provided for in the plea agreement.

We have take n out this idea t ha t the c ourt sho uld tell them he will 

give them eit he r th at sentence or a lesser sentence. And I will e xplain 

that, in a few moments.

Then we would say th at (4) should be amended to read, (e) (4) :

If the court rejects the plea agreement for a specific sentence, the court shall 

inform the parties of this fac t in open court and set aside the guilty plea of 

nolo contendere.

Then, in sub (6) we wou ld propose th is l an gu ag e:

Evidence of a plea of guilty, or a plea of nolo contendere, lat er w ithdrawn, or 

of an offer to plead guilty or nolo contendere to the crime charged or any other 

crime, or of out of court stateme nts made in connection with any of the foregoing pleas or offers, is^ iot admissible in any civil proceeding, or in the Governm ent’s case in chief in any criminal proceeding aga inst the person who made 

the plea or offer. However, a state ment made by a defe ndant in open court and 

in the presence of counsel in connection with such plea or offer is admissible to 

impeach the defendan t where his testimony at the subsequent proceeding varies 

materially from his statement at the time of the taking of the plea.

The fee ling th at we h ave on (e) (1), the g ene ral change, is to clear 

up and make it very cle ar th at the rule does not alter existing law 

whi ch leaves fo r executive decision to cha rge or dismiss charges. As 

proposed by the De partm ent, the executive will decide wi tho ut cou rt 

intru sio n, wh eth er to :

(1) Reduce the cha rge to a lesser or re lat ed offense;

(2) Dism iss othe r charg es; or

(3) Make recommen dations (or n ot oppo se recom me ndation) only.

Now, when we are dea ling with this recommendation , we say th at

such a recommen dation should not be bind ing on the co urt as to wh at 

sentence, if a ny, the court would impose. It is jus t a recommendation. 

Th e court would be free to impose the sentence, to go high er or lower. 

But if a specific sentence is agre ed to between the pa rti es as an ap ­

prop ria te dispositi on of the case, the n the court would be free to 

accept or reject the agreed specific sentence. And then if accepted, it 

is embodied in the judgme nt, and if rejected it sets aside the plea of
157

gu ilty or nolo. Wc set aside th e idea th at t he court should be involved 

in changin g the ter ms of a plea agreem ent for a specific sentence hv 

red uci ng the agreed sentence, or being subject, af te r such an agreement has been ent ere d into, to the fu rthe r ur ging of a defend an t to 

lesser punishm ent th an the defen dant has the retofore agreed to. By 

pe rm itting a d efen da nt to urge f or a lesser sentence th an lie has a greed 

to, we feel th at such proceedings would not only be an invitatio n to 

subsequent habeas corp us att ack throug h motions to vac ate sentence, 

bu t would vitia te the entire th ru st of the ame ndm ent to rule 11 to 

encourage openness and good faith between pa rties in rea ching b inding p lea agre eme nts.

Mr. Den nis. Lot me ask you a question righ t there. I am not sure

* wheth er I un de rst an d you or not. Are you say ing th at if the co urt 

saw fit to impose a lesser sentence than the agre eme nt?

Mr. Ray. We are say ing th at th at language is an open invit ati on,

* we a re say ing, tak e th at out a nd ju st let the court r eject or accept.

Mr. Den nis. Y ou are sayin g, the n, the co urt has eit he r g ot to reject 

or accept the agreement, the n ?

Mr. Ray. Yes, sir.

Mr. Den ni s. I s th at not quite an encroachm ent on the court's gen ­

era l powe rs?

Mr. Ray. I do no t think so. I think it mi gh t help the court. W ha t 

lit tle experien ce I have had with this rule—an d I migh t say un til 

Ja nuar y 1 this year, we have no ple a ba rgaining wha tsoever on specific sentences in my dis trict, a nd h ave no t had since 19(51 since T have 

been U.S . att orne y—it works ou t p retty good, witho ut bein g involved 

in the procedure.

Bu t I have seen—and the rule so con tem plates in the notes—th at 

you enter into t his agreem ent—in fact, we pu t it in wr iting , and then 

the jud ge defer s sentence, and then he is faced with allocation in ask ­

ing for a lesser pun ishment if agr eed to. And I can see thi s develop ­

ing la ter down in th e h istory in to questions ab out the whole procedu re, 

an d pro bab ly inc rea sing attacks or motions to vacate sentences.

Mr. Den nis. T can see how maybe you would not like it written in 

there specifica lly th at the court should tell him it will eit he r be this 

or som eth ing less. But I cannot see how you can have a rule which 

says th at once the distr ict att orney and the defen dan t make an agree ­

ment, th at the c ourt cannot reduce it if it wants to. I think the court 

has an inhere nt righ t to do wh at it pleases.

* Mr. R ay. Th at is true.

Air. Den nis. And it would not have to accept or reject th at agree ­

men t, it could change th at agreem ent or reduce it if it fe lt like it. I 

do no t see how you can do tha t.

Mr. R ay. ITe can. of course, reject the agre ement and say so.

Mr. Den nis. H e can reject it. Bu t suppose he rejects it by imp osin g 

a lesser sentence ? You say he cannot do th at ?

Mr. R ay. He can reject the agre ement and come back and tak e a 

plea.

Mr. T hornburgh. Mr. Ch airma n, the re is alr ead y an encroac hment 

on the jud icial funcion from outside , as fa r as sentencing, th at is to 

sav, if the jud ge perceives th at the sentence o ugh t to be gr ea ter than 

th at a gre ed upo n, he is not empowered to impose a g reater sentence bv 

these rules. So once the princ iple is gone of the exercise of the jud icial 

power, I would suggest th at it ou gh t to opera te both ways, t hat if the
agreement, is unsatisfac tor y to the cou rt, the court ought to reject it, 

an d then the pa rties a re left in the jmsition th at the y were ori gin ally.

Mr. Den ni s. I think you have a valid point, th at eit he r way the y 

are cu tting down som ething from the cou rt, although the opp one nts 

say that is not tru e. Bu t I must say, th at the one th at I commented on 

bot hers me more. You may have more logic, but it does not convince 

me. I think if the court felt like bein g more lenient than the di str ict 

attorney, he certa inly has that rig ht. And I think he can be tougher, 

too.

Mr. Greene. Ad dit ion all y. Mr. Ch air ma n, if you permit the court to 

req uir e the G overnm ent to stic k to its barga in, which may have resulte d 

in the dismissal of some more serious cou nts, and in fact serious counts 

which may have required a ma ndato ry sentence, whereas lesser counts 

may not, have req uir ed a ma ndato ry sentence, in a sense, you are pe rmitt in g the court not only to become i nvolved in the sentencing pro cess where it shou ld l>e involved, but also in the process of dec iding 

what charges should or should not be dismissed. In oth er words, if the 

Gov ernmen t reaches a ba rgain to reduce the cha rge s in the case in 

exch ange for what it views alon g with the defe nse as a reasonable 

sentence, and the n the cou rt reduces th at senten ce, the court m ay well 

be in a position of ind ire ctly enc roaching on the ch arging authority 

of the prosecutor. And, of coui-se, that goes to one of our fun dam ental 

objection s to the possibility of the way this rule could be con strued.

Mr. Dennis. I am not sure t hat ther e would not be r eli ef from th at 

point, of the agreem ent abo ut the cha rges if the court refu sed to go 

along. And I think you are rig ht, th at the sentences of the court are 

the charges of th e pro secuto r. And I think that is a sound and g eneral 

rule.

Mr. Greene. Th at is all we are sayin g. And T t hink t ha t is what Mr. 

Ba y was say ing when he said , of course, the cou rt can disapp rov e the 

plea. Ou r position is th at the court cannot require the Governme nt, 

on the one hand, to stick to its agreement con cerning dismissal or th e 

reduction of charges, and on the oth er hand, reduce the agreed-upon 

sentence.

Air. D ennis. It seems to me tha t pe rhaps the court could reduce t he 

agreed-upon sentence on th e matter th at is before him. But m aybe that 

would not preclude the Governmen t from br ingi ng some, other matter 

forw ard th at they were, going to dismiss, but since the agre eme nt was 

not, c arr ied out, they do not feel like dism issing it now. I do not know 

th at that is necessarily impossible.

Mr. Ray. T ha t is why we think it would be a much cle are r cut procedu re just to accept o r rejec t. And we th ink the rig hts o f both p art ies 

to the agreeme nt would be preserved.

1 mig ht mention one t hin g. Mr. Ch airma n. T noticed a question you 

pu t to Profe sso r Rem ington about discussions maybe af te r the law yers 

had talked, and the y go inf orma lly to see the judge. I would have to 

comm end the wr ite rs of th is rule, tha t befo re we get down to disc ussing 

plea, agreem ents , it is an ticipa ted that, t he court would determ ine, after 

advis ing the defen dant of all of his rig ht s that, he has on the na tur e 

of the cha rge, the sen tencing and all. and the un de rst an ding th at if he 

pleads th at he is waiving tri al, it is an tic ipa ted that the court would 

find his plea to have been vo lunta rily e ntered prio r to going in to a discussion of the plea agre eme nt. And T would very much and str ongly 

oppose any typ e discussion by the law yer s with the jud ge th at is not
159

on the rec ord . I f we ge t into that, th en we are ri g h t hac k to w he re .we 

ar e in ha be as co rp us an d mo tio ns to va ca te sentence. W he n we bri ng 

th e ju dg e in we m us t be abl e to show th at ev er yt hi ng he ha s done ha s 

bee n op en, a nd it is on t he recor d. .

And I wo uld ci te to th e com mi ttee’s att en tion a case. B ry an v. T m te a

St at es . 492 F. 2d 775, at page 780, F if th Circu it C ou rt of Ap pe als . 

T hat is one of my own cases. In th at case we ove rca me in at ta ck on 

plea bar gai nin g wh ich we did not hav e. An d th e record, I th in k, is 

ve ry clea r. But the fift h ci rcuit ha s a do pt ed p re tty m uch the A BA p re ­

ad ju sted st an dar ds on plea ba rg aini ng . So in th e fif th ci rc ui t we now 

have th is as a to ol.

I mu st say in ta lk in g to U. S. at to rn ey s acros s th e co un try, 1 was 

ra th er im pressed th at so uthe rn New Y or k dot's not make an y ag reeme nt as fa r as specific sentences. T th in k t h at ha s been th e case pr et ty 

mu ch th ro ug ho ut th e co un try with maybe one or two excep tions.

Mr . D ennis . Y ou do not feel, M r. Bay , that u nd er the se rules it o ug ht 

to be possible fo r th e di st rict at to rn ey an d th e def ens e counsel to ta lk 

to the c ou it be fo re you g o into co urt ?

Mr. B ay. T th in k an yth in g y ou do should be on th e rec ord . An d to 

ope n it up to for m al disc uss ion s w ith th e judg e, w ith ou t the presence of 

the de fe nd an t, an d with ou t th e record, is ju st an open in vi ta tion to 

habeas.

Mr. D ennis . You h av e got th e def en dan t’s counsel presen t. T assume.

T th in k at th is po in t, since we have a qu orum cal l, we ha d be tter 

ad jo ur n un til 1:30 p.m . I will ask all th e witnes ses pr es en t to come 

back—unless som eone ha s a que stio n.

M r. H unoate. T h a t is fine.

B ut w ould you g ive me th at cita tio n ag ain, please ?

Mr. B ay. It is my com ment. B ry an v. Uni ted St at es , 492 F. 2d 

775. a t pa ge 780,1974.

Mr . Dennis . G en tle men , we will ad jo ur n to 1 :30 p.m. T will ask th e 

witnes ses, in cl ud in g bo th t he p resent an d pri or pane l, to r et ur n at t hat 

time.

[W he reup on , at 12:20 p.m ., th e he ar in g wa s recessed, to reconven e 

at 1:30 p.m ., th is sam e da y.]

afternoon sessio n

M i-. H uno ate. Th e c om mittee will resum e its s itt in g.

Mr. Bak es traw , we will he ar fro m you or an yb od y in yo ur g roup .

TESTIMONY OF W. VINCENT RAKESTRAW, ASSISTANT ATTORNEY

GENERAL. LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE,

ACCOMPANIED BY H. M. RAY, U.S. ATTORNEY, NORTHERN DISTRICT OF MIS SISSIPPI; RICHARD L. THORNBURGH, U.S. ATTORNEY, WESTERN DISTRICT OF PENNSYLVANIA; HENR Y F.

GREENE, EXECU TIVE ASSISTANT U.S. ATTORNEY, DISTRICT OF

COLUMBIA; AND MICHAEL W. DOLAN, ATTORNEY, DEPARTMENT

OF JUSTICE—Resumed

Mr. B akestraw. W e hav e on ly one ser ies of comm ents by Mr. 

Green e. Thi s will l>e a com ment on rule 11 an d also r ules 12.1 an d 12.2. 

And th en we will stan d read y fo r q uesti on s, an d the n lie r ea dy t o wo rk 

la te r w ith cou nsel an d answ er any ad di tion al quest ions yo u may h ave .
160

Mr. H ungate. I h at would be very helpf ul. If questions arise later , 

we can submit them to you fo r w ritten reply.

We will be glad to he ar from you, Mr. Greene.

Mr. ( treene. Mr. Ch airma n, if 1 migh t just resp ond at the outset 

in my rem ark s to one question which you raised earlier in the proceedings of the day concerning the question of wheth er under rule 11 

we are lif ting the sentencing au thor ity to the U.S . attorney by 

pe rm itting him to tak e pa rt in thi s plea ba rgaining process, I think 

it is im porta nt to note th at the pro secutor in ou r system knows some 

thi ngs about a case th at may be exclusively wi thin his purview and 

which are pa rticul arly releva nt to the sen tencing process. li e knows 

the witnesses, he k nows the victims, he has talke d to them. li e has access 

to the d efe nd ant's records, he knows the m itiga tin g and exa sce rba ting 

circumstances which migh t be relevant to sen tencing bu t which were 

not admissible in the absence of tri al. Bu t if it is determ ine d th at 

it is ap prop ria te to hav e this kin d of plea ba rgaining process, the n 

we subm it th at it is a pp ropr iate fo r th e U .S. atto rney to be represented 

in that process because of the input which he can make in tha t reg ard .

If I can I would like to go briefly to the proposed ame ndm ents 

now to rule 12. An d there are two pa rti cu la r concerns which we h ave 

with that rule.

Fi rs t of all, f or reasons which we state m ore exp ansively and which 

were eloq uently staled . I think , by Mi-. T ho rnbu rgh, we object to the 

provisions of rule 12(d) (2) on the same gro unds t hat were discussed 

concern ing our opp osition to exp and ed discovery in rule 16. We 

think th at the discovery shou ld continu e to be a matter of jud icial 

disc reti on tai lor ed to each ind ividual case, and not a matter of rig ht. 

And . the refore , we object to the terminolog y which is used in the 

prov ision “any evidence to which the de fend an t is entitled to dis ­

cover under r ule 16.”

Now, the G overnm ent does often no tif y a defen dant of its intentio n 

to use cer tain evidence, so as lo exp edite the filing of the motions 

of suppression. And the Adv isory Com mittee note to rule 12 recognizes 

this. But it is the prop osed ame ndm ent th at is dr afted th at requires 

more. I t seems lo contem plate, or at least could be constru ed to contem plate, th at the Gov ernm ent will give nolice of every thi ng th at it 

possesses tha t is discoverable reg ard less of w hethe r any motion to su ppres s is anticipa ted .

Th e second pro vision concerning rule 12 which we h ave a problem 

with is sub divisio n (e ), which ind icates th at the general au thor ity is 

con ferred on the cou rt to defer the deter mi natio n of pretria l motions 

un til tria l or even af te r verdict. And while we do not have problem s 

with what we think was the int ention of the rule, we are concerned 

th at the rule could be c onstrue d in such a way as to dep rive the Gov ­

ernment of its rig ht to app eal under 18 Un ite d State s Code, section 

3731. which does permit the Government to appeal a pr etria l order 

gr an ting the motion to suppress if th at appea l is tak en before jeo pardy atta ches. An d we would, the ref ore , request an amend ment to 

rule (e) which we have p roposed on pag e 19 of Mr. Ra kestr aw ’s statement, to the effect t ha t a motion mad e before tria l shall be determine d 

befo re tria l unless the court ord ers it defer red , bu t th at no such 

deter mination shall be defer red if a par ty ’s righ t to appea l is ad ­

versely affected.
161

Mr. II unoate. I t is your position that after jeopardy attaches you 

might not he able to appeal, even if the motion is determined favorably 

afte r the trial.

Mr. Greene. It is an open question whether we would have a right 

to appeal. It may be a more closed question as to the effectiveness of 

tha t righ t to appeal, because even if we had a right to appeal, that 

is, to litigate the issue involved, as far as the case in which the issue 

arose is concerned, the attachment of jeopardy may have included an 

effective remedy in that case.

Let me move very briefly, unless there are other questions, to rule 

12.1, the notice of alibi rule.

The Government generally supports this rule. However, again, we 

have an objection which is an outgrowth in general of our objection 

stated by Mr. Thornburgh to the requirement of the disclosure pretrial 

of witnesses. Unlike the alibi notice rule which is in effect in the 

U.S. District Court for the District of Columbia—the proposed rule 

12.1 would permit the defendant, by indicating his intention to rely 

on the provided defense, and by making disclosure, to compel the 

Government to disclose the names and addresses of its witnesses. In 

other words, the defendant triggers that process. And because we 

vigorously oppose those provisions of proposed rule 16 which would 

compel the Government to disclose the names and addresses of its 

witnesses, we oppose any alibi notice rule which would permit similar 

discovery, and we would in its place propose the enactment of a rule 

similar to rule 2.5(b) of the U.S. District Court in the District of 

Columbia. And that rule is made part of our proposal at page 21 of 

Mr. Rakestraw’s statement.

In connection with rule 12.1, T should also like to address a question which was raised earlier by counsel. Mr. Hutchison, in which 

he wondered, in connection with the reciprocal discovery provisions 

of rule 16, if we were confronting a problem of invasion or intrusion 

upon the defense’s constitutional rights under the fifth amendment. 

And I think one case which is particularly relevant in this regard, 

and was addressed to the alibi notice rule of the State of Florida, but 

is really more generally addressed to the problem of requiring defendants to disclose evidence that they would disclose at trial in 

advance of trial, is the case of Williams v. Florida. And the Supreme 

Court specifically indicated in the case tha t.it had no problem in ordering pretrial disclosure of evidence bv the defense where 

it was only a matter of changing the timing of th at disclosure rather 

than requiring the disclosure of evidence tha t the defendant would 

not otherwise disclose at trial.

The Supreme Court in Williams in a footnote specifically reserved 

the second question raised by Mr. Hutchison, which was the question 

of validity of the sanction if the defendant fails to comply, not permitting him to introduce the evidence at trial. But it seems to us 

that in implicitly sanctioning the rule itself in Williams. that the 

rule would he meaningless without ti e sanction that is prescril>ed by 

the rule. And so that is why the Supreme Court did not address the 

question, because it did not have to reach the question in that wav.

We really think that any kind of an alibi notice rule or discovery 

rule requiring pretrial disclosure by the defense really is meaningless without an effective sanction to give the rule substance.
162

Mr. Hungate. Wh at are you suggesting as a sanction ?

Mr. G reene. I am sugge stin g th at it is an a pp ro pr iate san ctio n u nd er 

both the alibi notice rule and un der the recipro cal discovery pr ovisions of rul e 16 to preclude introducti on in evidence of ma terial by 

the d efense whi ch the defense has not tu rned o ver p rio r to tria l, pursuant to its obligation s und er the rule. In o ther words, if a de fend an t 

is ordered to disclose evidence in adv ance of tri al pu rsua nt to eit he r 

the alib i notice rule or rule 16, t hat it is ap pr op riat e and it is constitutio nally ap prop ria te to impose the san ction of them no t bein g 

perm itted to introd uce that evidence at tr ia l, with the exception of his 

own testimo ny. >

Mr. Hungate. T ake a ban k robber}’ case. Can an accom plice, who, 

say, bought the gun and the mask t hat were used bu t who did not go 

to the scene of the crime, be tri ed as a princ ipal ?

Mr. Greene. I do not q uite underst and you r questio n, Mr. C hairm an.

Mr. H ungate. All rig ht. Two men agree to rob a bank. One of 

them buys the gun , arr anges for the get aw ay car, and gets t he mask.

The oth er man uses the gun, mask , and the car and robs the bank .

The firs t guy sta ys in bed th at day. Ar e the y both liable fo r bank 

robbery ?

Mr. Greene. Yes.

Mr. HungaTe. Now, suppose th at one of them furnis hes notice of 

inten t to use an alibi defense. Would you the n have to reve al wh at 

evidence you had on both of them ?

Mr. Greene. Let us assume th at the defen dant who sta yed home 

gives notice th at he is goi ng to raise an alibi defense th at he was at 

some oth er plac e at th at time, and th at witnesses X and Y pu t him 

at th at place. The Governme nt would the n be obliged to disclose, if 

the Government un der our pro posal, filed a dem and fo r notice of 

alibi to the defen dants , the Government wou ld then be obligated to 

disclose to th at de fend an t’s att orney the evide nce it had pla cin g the 

defen dant at the scene of the offense and who its witnesses were. It 

seems to me, tho ugh, Air. Ch airma n, th at you have raised per ceptive ly the very issue which we were concerned about in terms o f who 

triggers the alibi notice rule. In oth er words, if the Government 

trigg ers th e rul e throu gh its dem and, then it can tak e into th e calculus 

of whether it is adv isable or inde ed, saf e to disclose its witnesses to 

all the panels, it can tak e th at i nto c onsidera tion in dec iding w hethe r 

to file the dem and. Bu t under the rule as it is now prop osed, one defend an t of several codefenda nts could trig ge r the a libi notice rule by 

disc losing to the Gov ernment his alibi defense and his witnesses, 

thereb y pu ttin g th e Government in the position of bei ng compelle d «

to disclose its witnesses and its case not only to th at de fend an t bu t 

for all inte nts and purposes, to othe r defen dan ts.

Mr. H ungate. Th an k you.

Mr. Dennis.

Mr. Den nis. Mr. Ch airma n, just one question.

Do you hav e th e c itatio n in t hat Williams case?

Mr. Greene. Yes, I do.

Air. Den nis. Counsel has called it to my attentio n in one of the 

docume nts Ix'fore us here. 399 U.S . 78.

Mr. Greene. 1970, yes.

Air. Den nis. Th an k you very much.
163

Mr. Greene. I f I could, the n, T would like to move tlieu v ery briefly 

to rule 12.2, and ind icate th at this rule, which req uir es the pr etria l 

disc losu re of a de fend an t’s intention to rely on t he defense o f ins anity 

fo r a show ing, o r show ing a lack of the requ ired mental state, is a rule 

which has the str ong su pp ort of the De pa rtm ent of Jus tice. And ou r 

own concern is th at the adv isory committee note should reflect, and 

we would hope the r ep or t of this subcommittee would reflect, th at the 

rul e is not intend ed to preclu de a distr ict co urt jud ge from orde rin g 

more than one psychia tric examin atio n of a defen dant in a case. We 

are sure t hat was not the intention o f the rule , b ut we th in k it should 

be made clear at least in a note to the rule.

Tha t concludes my testimony on rules 12,12.1. and 12.2. T would ask 

the Ch air’s indu lgen ce if I could , for an addit ion al 2 m inutes t o mak e 

a brief comment on rule 16. which I did no t have a chance to add ress 

when Mr. T ho mbe rg was speakin g.

Mr. TIungate. Yes, please proceed.

Mr. Greene. Mi-. Cha irm an, Mr. Th om be rg art icu lated, we think , extreme ly effectively th e problems, the substa ntial problems inv olving the 

saf ety and possible threats to witnesses which inclined the Gover nme nt so strongly to oppose the provisions of rule 16 rel ating to disclosure of witnesses’ names before trial. How ever, th ere is anoth er c onsid era tio n which also prom pts the G ove rnm ent op era tion to which Mr. 

Tho mbe rg briefly allu ded , bu t which T think me rits emphasis. An d 

th at is the problem of witnesses and vict ims of crim e being discouraged from testi fying in criminal cases. We have rece ntly taken note 

of those who have been involved in looking at the ad mi nis tra tio n of 

criminal justice have taken note of the fac t th at our victims and our 

witnesses and our ju ro rs are the pa rti cipa nts in our system of ad ­

ministering criminal justice to whom scant att en tio n has been give n 

in the past 15 or 20 yea rs du rin g a process w hen we have increasingly 

been vig ilant of the constitutio nal rig hts of defen dants and of the 

other incidents inv olving the way the administ ratio n of justice works, 

du ring this e ntir e period scant attention has been given to the p roblems 

inv olving witnesses and victims of th eir real app rehens ions about 

tes tifyin g.

Rec entl y the Law Enforcem ent Assistance Ad mi nis tra tio n fun ded 

a s urvey of victims and witnesses to crime in t he District of Columb ia 

to try to a sce rtain to wha t extent, if any, t he appre hen sions and fea rs 

of witnesses a fleet th eir relu ctance or, in fact, th eir refusal to come 

for wa rd and to rep ort criminal events which they either observed or 

which they are victimized by. And t ha t gr an t is made bv the I ns titu te 

for Law Enforcem ent Research. And it reveals th at when witnesses 

in a substantial numb er o f cases were asked w hat changes they th ou gh t 

would make witnesses more willing to co operate, 30 percent, or nea rly 

30 percen t, 28.8 pe rcen t of those witnesses who ha d cooperated with the 

police, and 3.3 p erce nt of the witnesses who h ad not cooperated, indicated th at the y wanted be tte r pro tection fo r witnesses b y the police, 

and that the y wante d witn ess identif ication kept from defen dan ts, or 

th at they wante d witnesses assured of pro tec tion af te r testimony.

So I think it is i mpo rta nt to indicate th at even if you do have a p ro ­

tective order which is p rov ided for by those a mendm ents to rule 16, and 

even if there are cases in which the Gover nm ent could make the required s hqwing, th is is not g oin g to meet th e increa sing problem of the
164

reluctance and unwillingness of witnesses and victims to come forward at a time when both the executive branch and the legislative 

branch of our Government have taken notice of increasing problems 

involving crime in our society.

Thank you.

Mr. Hungate. Thank you.

Mi'. Dennis.

Mr. Dennis. T do not have any questions. But I just question whether 

anything is going to overcome the reluctance of witnesses to come 

forward. They just do not want to be witnesses. And they are going 

to have to come forward eventually, of course, if they are going to 

appear at all.

Mr. Giieene. I understand that, Congressman. But T would pose what 

I guess is the rhetorical question of whether it is not reasonable to 

assume that a witness who knows that it is the common practice that 

his identity is going to be disclosed if he comes forward rath er than 

that his identity is going to be protected at least until the time of trial. 

And, of course, in some, cases involving informants, th eir identity can 

be protected if they will not actually be witnesses, but if they disclose 

other information which leads to other witnesses. T think if is fair to 

say that the witness who knows his identity is going to be disclosed is 

less likely to be willing to come forward than the witness who knows 

that the Government is going to seek to protect their identity. Indeed, 

in our jurisdiction T believe there are situations in the superior court 

where jurors have raised objections to the fact that their addresses as 

well as their names are on jury lists which are given to defense a ttorneys prior to trial. So it is not a problem confined only to the witnesses. it is a problem involving the reluctance and fear and apprehension generally of our innocent participants in the administration of 

criminal justice.

Mr. Hungate. Mr. Thornburgh.

Mr. T hornburgh. Just as a footnote of that, I think the timing is 

of some note here, because if you are going to make effective use of a 

witness, obviously you are never going to be able to seal his name 

and address in perpetuity. But I think when you look at the terms 

of the Bail Reform Act you can see the tools that are available to the 

Government to provide protection to an individual who is likely 

to be subject to physical harm are certainly few.

Prior to conviction the onlv consideration as to whether or not a 

defendant should be at large is whether or not he is likely to appear 

for subsequent legal proceedings. Afte r conviction, when the fat is 

in the fire, and the witness has been exposed by his own testimony, 

the court mav take into account whether or not that particular convicted defendant poses a threat to the community, and could be in ­

carcerated on those grounds alone if we are able to come forward and 

establish a propensity on his p art to engage in these types of heinous 

acts that we are talking about.

Mr. H ungate. Mr. Rakestraw. Mr. Greene. Mr. Bay. Mr. Thornburgh. and M'\ Dolan, the committee expresses its appreciation for 

your contribution here today, and for your willingness to be available 

for further inquiry. We may be in contact with you.

Mr. Rakestraw. Thank you. Mr. Chairman. We hope that we have 

assisted the subcommittee. And we stand ready to either support our 

statements or answer additional questions, as indicated before.
165

Mr. H ungate. Than k you very mu ch.

1 wo uld like to rec all the prev ious gr ou p of witne sse s be fore go in g 

to th e las t gr ou p of witnesses .

Ju dge Lum bar d, Ju dge Th om sen, Judge W eb ste r, an d Pro fe ss or 

Rem ington .

T han k you, ge ntlem en , fo r w ai ting an d re tu rn in g. The C hai r su gge sts th at we ask a few qu estio ns here, an d then proceed to the ot he r 

witnes ses. W he n we have co nc lud ed with all th e ot he r witne sse s, 

w he th er th a t is week s or m on th s fro m now , we wo uld lik e to c all you 

ag ai n an d ge t yo ur c om me nts on th e ot he r sugg estio ns we have he ar d. 

I f th at is ag reea ble to you , we th in k th a t it wo uld be he lp fu l to us.

>

TESTIMONY OF JUDGE J. EDWARD LUMBARD. SECOND CIRCUIT

COURT OF APPEALS. CHAIRMAN. ADVISORY COMMITTEE ON 

* CRIMINAL RULES, JUDICIAL CONFERENCE OF THE UNITED

STATES; ACCOMPANIED BY JUDGE ROSZEL C. THOMSEN. U.S. DISTRICT COURT, DISTRICT OF MARYLAND, CHAIRMAN, STANDING

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE, JUDICIAL

CONFERENCE OF THE UNITED STATES: JUDGE WILLIAM H. WEB ­

STER, EIGHTH CIRCUIT COURT OF APPEALS; AND PROF. FRANK

J. REMINGTON, UNIVERSITY OF WISCONSIN LAW SCHOOL, REPORTER, ADVISORY COMMITTEE ON CRIMINAL RULES—Resumed

Ju dge L umbard. W e wo uld ve ry mu ch ap pr ec ia te t h a t op por tu ni ty .

Mr . H ung ate. W he n the pr os ec utor an d th e defen se cou nse l wan t 

to wo rk ou t a sen tence, they will do so, I assume, w itho ut ben efit of 

th e pres en tenc e re po rt ?

Ju dge L umbard. O rd in ar ily, yes.

Mr . H ungat e. I t is not av ai la bl e unles s th e def en dan t wan ts to 

ma ke i t a va ila ble, is th at ri gh t ?

Ju dge L umbard. It can be ag reed th at th e co ur t sh ou ld ha ve th e 

benefit of it pri or to the plea. B ut ord in ar ily it is no t av ai la bl e p ri o r 

to th e ple a.

Mr. H ungate. And do you see an y da ng er , Ju dge , in th e par ties 

ag re eing to a sen ten ce with ou t the benefit of the presen ten ce re port ?

Ju dge L umbard. Well, th er e may be cases wh ere im po rt an t in- 

, fo rm at io n is develo ped on th e presen tenc e re po rt. And . o f c ourse , th er e

you ha d th e fle xibility of the ju dg e's di sc re tio n in th e ligh t of th e 

presen ten ce re po rt. But fo r th e most par t. M r.-C hai rm an , I th in k 

defen se cou nsel an d the pros ec ut or u su ally k now m ost o f th e fa cts th at 

» wo uld be re le va nt to an y ag reem en t. O rd in ar ily, th a t is th e case.

Mr . H ungate. Ju dge Thom sen .

Ju dge T ho ms en. I was ju st no dd in g agreem en t. I th in k th at ha s 

been o ur ex perie nce.

Mr. H ungate. We have rec eiv ed comm ent s cr iti ca l of m ak in g 

presen tenc e re po rts av ailable to th e defen se at to rn ey an d th e pr os ­

ecuto r. Th e argu men t is th at disc losu re of th e re po rt m ig ht de stro y 

the pr in ci pa l ad va nt ag e of the r ep or t by m ak in g it pub lic . How wo uld 

you meet th at co nten tio n?

Ju dge L umbard. Ju dge W eb ste r, I th in k, can an sw er th at .

Mr. H ungate. Yes, sir.
160

Judge Webster. Mr. Chairman, it is my understanding tha t rule 

32 does not contemplate making the presentence investigation public.

It contemplates making it available to the defendant or his counsel.

And to tha t extent, if we are talking about presentence reports in 

general terms, I think we are fully protected there. I f we are talkin g 

about it in terms of an advance look at the plea bargaining, I do not 

think the rule provides that the prosecution has an advanced look at 

the presentence report. It is just the judge.

Mr. Hungate. Under rule 32, as I understand it, the presentence 

report, with some exceptions which I am not tha t acquainted with, 

shall be made available to the defendant and his attorney. The a rgument is made tha t this will destroy the confidential nature of the *

report—tha t it is bad for the defendant to know how he is diagnosed,

1 suppose.

Judge Webster. There are express provisions for withholding any «

information which in the opinion of the judge may be harmful to the 

defendant, such as diagnostic information, and if the judge feels on 

balance that the report is such that it simply ought not to go to the 

attorney, all that he has to do under the rule is disclose instead either 

orally or in writing a summary of the factual information upon which 

he relied in assessing the sentence. In other words, he is saying to them, 

whatever else is in there did not influence me in fixing the sentence.

These are the things that I rely upon.

Judge Lumbard has called my attention to the fact that this requirement which I just referred to, reveal ing on record the information upon 

which the court relied, may be made to the parties in camera. The important thing is that it is and must be made in (he defendant’s presence 

so th at we cut off, at least hopefully, the post convict ion contentions 

that the judge relied upon matters which, if the defendant had known 

about, could have been corrected or the record set straight.

Mr. Hu ngate. When that is made available to defendant’s attorney 

in camera, is it also made available to the prosecutor?

Judge Webster. Only in the discretion of the court.

Mr. Hungate. Mr. Smith calls mv attention to rule 32(c).

Judge Lumbard. It would lx4

 made to the parties. The prosecutor 

would be included in the proceedings in camera, according to the proposed rule.

Mr. Hungate. T)o you find any difficulty with that ?

Judge Webster. I find no difficulty at all with it. The important <

thing at th at stage of the game is that the trial which has proceeded on 

an adversary basis with the right of confrontation, the right to correct the record, and so on, proceeds to sentencing without an ex parte 

aspect where the defendant does not know what the judge has in his ’

hole card that he is using to determine the sentence.

Mr. H ungate. Turning now to rule 15, which deals with the use of 

depositions in criminal cases, is it possible under that rule to have an 

entire trial by that deposition ?

Judge Lumbard. That is conceivable. But I do not know of any 

criminal case where that has happened, Mr. Chairman.

Mr. Hungate. The contention is that this would impair the defendant’s right to a jury trial because the jury cannot pass on the witness’ 

credibility, since there is no appearance and opportunity for confrontation. What do you say to that ?
167

Judge Lumbard. Of course, the provisions for deposition give full 

opportunity to the defendant to be present and to confront the witness and to confront each witness. This does not necessarily mean that 

the witness must lx? confronted by the jury, so to speak.

Mr. Hungate. Thank you.

We have received a suggestion concerning rule 43. Did the advisory 

committee consider permitting a defendant to waive his appearance 

and arraignment, where the only purpose of appearance is to enter a 

guilty plea ?

Judg e Li mbakd. I think that would be done only in cases where you 

were dealing with a corporate defendant.

* Mr. Hungate. The problem—it is not a widespread thing, I hope— 

is that some defendant is broke and in Nova Scotia. He would save a lot 

of money and avoid a long and expensive trip if counsel .would enter

• a plea and waive arraignment.

Judge Lumbard. It might be permissible to have that done in certain 

misdemeanor types of offenses where only fines might be imposed; or 

something of that sort.

Mr. Hungate. Thank you. Judge.

Mr. Smith.

Mr. Smith. Mr. Chairman. T missed the meat of his testimony, so I 

am not going to ask any questions.

Mr. Hungate. Mr. Dennis.

Mr. Dennis. Under rule 16, gentlemen, what would you think about 

a compromise which gave the defendant a right, not on the prosecutor’s 

being nice about it. but a right to elicit the witnesses if he could make 

a showing, but casting the burden on him rather than on the Government to show that they should not lx1

 revealed ?

Judge Lumbard. J ust a one-way street to get a list of the witnesses?

Mr. Dennis. In other words. I suggested to them when these other 

gentlemen were testifying t hat they want a complete right to refuse. 

And they said, often we give it to them. But th at is really a matter of 

grace. 1 am suggesting that we might give the defendant a right, but 

not an absolute right, require him to make a showing th at there is not 

any danger to the witness, th at he does not need to know who he is, 

and so forth.

Judge Lumbard. That there would be no corresponding obligation 

on the part of the defendant to disclose his witnesses?

• Mr. Dennis. Well. I had not considered t ha t particularly. That is 

another phase of the matter. But what I am trying to ask you is whether 

there is any middle ground between the position that the Government 

should completely determine the matter and the position tha t the de-

* fendants should get them automatically unless the Government can 

show some good reason for not.

Judge Lumbard. There is a possible middle ground. And the committee considered it very carefully and thought that there were greater 

advantages in making it a two-way street on the theory th at as Professor Remington outlined this morning, the more disclosure you get in 

the discretion of the court, of course, and in the proper cases, the less 

surprise there is at the trial, and the more likelihood there is tha t 

there will be some kind of a settlement of the case on terms that are 

fair to both the parties.
168

Professor Remington. I might a dd th at one of the reasons fo r pu ttin g the b urd en on the Gove rnm ent is the f eeling tha t discovery ought 

to be by the pa rti es with out havin g come to the cou rt. As Ju dg e 

We bster ind icated , a lot of tim e is spent on motions fo r disc overy, 

whi ch can be avoided if, when the de fend an t goes to the Gover nment 

and asks fo r discovery, the Gov ernment resp onds, and vice versa. If 

the Government has a basis for ref using discovery, it can come in to 

the judge and give the reasons. It would be possible to dra ft a prov ision which would provide th at if the Government refu ses discovery, 

the bur den would lx? on the de fend an t to show cause why he needed 

the witnesses in the face of the Governm ent’s objection. Th e bu rden 

of coming forw ard with just ificatio n can be p ut on the defe ndant. But 

the whole th ru st of rule 16 is to make discovery volun tar y in 99 out o f 

100 cases, so th at taking court tim e is the exce ption ra th er than the 

rule. In pra ctice, parties are more a nd more hand lin g discovery with ­

out the re quireme nt of a form al motion to the court.

Mr. Den nis. Of course, th at is the tre nd in the civil case. But Mr. 

Th ornb erg’s co nten tion is .that we can not equate this kind of t hi ng to 

a civil case, and th at we are going too fa r in th at, a nd tha t it is for the 

executive branch to determin e, fo r instance , wheth er a man should be 

arr est ed, or wh eth er the Governme nt should give out its witn ess list 

or not, those are executive fun ctions, acc ord ing to him. T fake it, you 

gentlem en would ra th er think they are jud icial fun ctio ns?

Ju dg e Lumbard. Yes.

Mr. Den nis. A fun dam ent al conflict of philosoph y und erlies th is 

problem.

Pro fes sor Remington. I migh t say, Congres sman, th at the re was a 

prop osal which the comm ittee c ircula ted which would have allow ed a 

jud ge to accept a plea to a lesser offense witho ut the concurr ence of 

the. Governm ent. On recons iderati on, the comm ittee, recogniz ing the 

imp ortanc e of the separation of powers question, conc luded th at a reduction in charg e was an executive fun ctio n. Tha t ame ndm ent to rule 

11 was no t forw ard ed by the adv isory comm ittee. So the advisory 

committee has been sensitive to the intere st of the executive branch . 

But the decision to tak e a person into custody is in the view of the 

adv isory com mittee, probab ly one of the most im po rta nt decisions 

affecting th at ind ividual and ou gh t there fore to be made bv a pers on 

who is neutr al and del ached, and able to look at both sides of the issue.

Mr. Den nis. These are very im po rta nt questions and not easy ones 

eith er.

Ju dg e T iiomren. And the pra cti ce differs so in differen t distric ts. 

Some distr icts have an omnibus he aring practic e, people come in and 

have a very few sessions before a judge. In some othe r distr ict s whe re 

the y do not have it th e U .S. att orne y know s what t he judges are going 

to require him to disclose. And the defe nse lawyers pr etty well know 

it, too. An d when the y go and requ est certain inf orma tio n, usu ally 

the Governmen t att orney gives them every thi ng he knows the jud ge 

will requ ire them to give. And so von do not have to come to court all 

the time for it, o nly for th e occasional dis puted problem.

Ju dg e Webster. Congres sman Den nis, the re is one other aspect. I 

agree completely with what J ud ge Thomsen and P rofes sor R emington 

have just said. Bu t I think ther e is i nhere nt in th e Governm ent’s a rg ument the problem th at confronts the defense counsel in tryi ng to
169

demonstrate th at he needs to know the names of witnesses. The underlying assertion on his part is that he cannot properly prepare his ease 

unless he knows who the witnesses are going to be. And tha t in effect, 

it seems to me, requires him to prove a negative. And I do not know 

how he does that. It is inherent that he would like to know who is 

going to come in to testify. But I do not know how he would ever 

prove that he cannot prepare his case without knowing.

Mr. Dennis. Of course, in another way it is almost axiomatic tha t 

he does need to do it. This is a tough question, because I can see their 

point too, about the harassment of the witnesses, and so on, there is a 

real balancing of interests in this respect.

Judge Lumbard. May I mention a fundamental practice which I 

think we are all aware of but which has to be kept in mind in this 

whole subject of discovery?

In most criminal cases the defense counsel is not fully informed by 

his client as to what the facts of the case are, and he does not learn 

them unless and until he finds out what the prosecution knows. And 

this is one of the fundamental reasons why as full a discovery as possible within proper limits, and safeguarding as much as we can witnesses and other factors, is going to be of assistance in reaching the 

righ t result at the trial and the righ t kind of a settlement by way of 

pleading.

Mr. Dennis. There is a lot of truth to that. Of course, if the defendant came more or less clean with his counsel, they usually would 

at least know who the main witnesses were, as a matter of fact. That is 

another side of it.

J udge Lumbard. They usually have a pretty good idea.

Judg e Webster. I think that you will find too, th at the provisions 

in the rule accord the trial judge wide discretion and wide power 

to control not only whether the information is to be given at all, but 

also what use is to be made of the information in terms of harassment. 

When the situation warranted it, at the same time as T ordered the 

information supplied I directed that the defense counsel or his client 

should not approach the witness if I thought there was a valid reason 

for keeping the witness free from fear of harassment.

So the trial judge has a lot of control and a lot of flexibility under 

this rule, I think all he needs.

Mr. Dennis. T thank all of you gentlemen.

Mr. H ungate. Thank you. We will be in touch with you at a later 

date.

Mr. Smith. Mr. Chairman, I have one question. Judge Webster just 

touched on it.

What is your experience as a trial judge with harassment, intimidation and possible murder, and so forth, of witnesses?

Judge Webster. I missed the first two words, Congressman.

Mr. Smith. What has been your experience as a tria l judge in this 

field of harassment and intimidation in criminal law?

Judg e Webster. T think tha t in the 10-year span between the time 

I went on the bench as a trial judge and the time I was a U.S. attorney 

a lot of change took place. I used to have more problems as a U.S. 

attorney. I had very little problem as a district judge with tha t 

type of activity. You know, of course, too, tha t provision for taking 

witnesses into protective custody can be utilized if we reached tha t 

point of concern.
170

Ju dg e Thomsen. There are eases. We have had two mu rde rs of 

witnesses in the distr ict of Mary lan d within the las t 2 'years . So it 

is tru e that it is not limited to New York . It is whe rever, 1 think, 

you get into the big league of crime, is whe re the dang er increases 

a great deal. Un fo rtu na tely, Baltimore h as gotten int o the b ig league.

Mr. Hu ngate. It may he a question of time. If the defen dan t did 

no t know the identity of the prosecutio n's witnesses until the day of 

a t rial , then the pro tective custody would he o f a s ho rt durat ion . Th e 

earlier a defen dan t lea rns the names of the pro secutio n's witnesses, 

the lon ger the protective custody may have to he.

Judge. W ebster. Most of these cases seem to involve narcot ics problems, cases of th at kind. I will mention one case in which, under a 

Supreme Cou rt decision, I felt th at the name of the inform an t had 

to he disclosed. In doing so 1 granted the Government a period of 

tim e in which to locate the infor ma nt and to tak e necessary steps to 

prote ct him befo re the name was disclosed. Th ere are all so rt of dif ­

fer ent ways to go a bout it in special situations. The rule con templates 

the normal situ atio ns.

Mr. Smi th. A nd your adv isory comm ittee in the Judicial Co nference kept those matt ers well in min d as von discu ssed in the new 

rules?

Ju dg e W ebster. Yes, sir.

Mr. Hungate. Than k you again, ge ntlem en.

Ou r final witnesses tod ay are from the Cente r fo r Law and Social 

Policy, the pub lic inter est law center loca ted here in 'Washington . 

Ho wa rd Lesnick, pro fes sor of law at the Un ive rsity of Pennsylva nia , 

and Mr. Her be rt Semmel, attorn ey, will testify on behalf of the 

Cente r. G. Jame s Pr ick, att orney, will testify on behalf of the W ashing ton Council of Law yers. Mr. Semmel and Mr. Fr ic k are also 

ap pe aring on behalf of the Nationa l Associatio n of Defense Law yers . 

We app rec iate your patience and we are gla d to hav e you with us 

today. You may proceed.

TESTIMONY OF HERBERT SEMMEL, CENTER FOR LAW AND SOCIAL POLICY, WASHINGTON, D.C.; HOWARD LESNICK. SCHOOL OF

LAW, UNIV ERSITY OF PENNSYLVANIA, PHILADELPHIA, PA.;

AND G. JAMES FRICK, WASHINGTON COUNCIL OF LAWYERS,

WASHINGTON, D.C.

Mr. Semmel. T hank you, Mr. Chairma n. T appre ciate the op po rtu ­

ni ty to a pp ear liefore you. I am Herb ert Semmel.

On my rig ht is Pr of . Howa rd Lesnick. And on my left is Mr. Jame s 

Fr ick, who is the executive dir ector of the "Washington Council 

of Law yers. .

I am going to be t alking alxiut the substance of th e rule s which are 

pre sen tly befo re the committee. Profe sso r Lesnick will add ress himself prim arily to the rulem aking process, and br ing some con siderations about that, process to the committee.

I have sub mitted to the comm ittee a prep ared sta tem ent which I 

request be pu t in the record.

Mr. Hungate. "Without objection, it will be mad e a par t of the 

record. (See p. 1SG.)
171

Mr. Semmel. In general, Mr. Chairma n, we ur ge that the com mittee 

appro ve the proposed rules if a small numb er of critical changes are 

made in the rules. We believe that prop er respec t for the rul em aking 

process should not lead the committee to tin ke r with various minor 

changes which we mig ht have suggested. We do t hin k, howe ver, th at 

the re are certa in matt ers, pa rti cu larly those rai sin g constitu tional 

issues, in which the c omm ittee has a function to play a nd in which the 

Congress has a funct ion to plav in the rulem aking process.

The situation of the criminal rule s is substan tia lly different than 

th at of the evidence rule s, where serious questions were raised as to 

whether the Sup rem e Court acted w ithin their p owe rs u nder the Rules 

En ab lin g Act. These crim inal rules are matters of procedure. Bu t 

there are area s, pa rti cu larly of a con stitution al natur e, to which we 

feel th at the committee and the Congress should pay pa rti cu la r 

attent ion .

There is anoth er legisla tive m atter which I will b rin g to your a tte ntion. An d th at is. that if the proposed rule 1G is app roved, the n we 

would suggest an ame ndm ent to the Jencks Act which deals with 

disclosure of s tatem ents of witnesses before tri al.

I would like to addre ss myself first, to rule 11. in which the ma jor 

change is a reco gnition of the rea lity and pract ice o f plea ba rgaining 

and the r egula tio n of th at process. There seems to be some controversy 

with resp ect to th at provisi on, in the sense th at the rule would allow a 

withd raw al of a plea if the jud ge rejects the barga in and indicates 

th at he would issue a sentence in excess o f that which had been agreed 

upon. I t seems to us to be a rule wh ich is emi nen tly fair.

There has been some discussion about the necessity fo r the recogn ition of gu ilt in conn ectio n with a plea of guilty. I think th at the 

rea lity of the plea ba rgaining process, at least in some cases, is th at the 

de fend an t assesses the evidence again st him and determ ines th at a 

gu ilty plea is in his best interests, even tho ugh he may feel th at his 

innocence could be m ain tained at the tri al. T he plea bargaining in t ha t 

situatio n is a two-way street. An d if the defen dant is going to be 

subject ed to a hig her penal ty, he sho uld have the rig ht to proceed 

to tria l.

Now, T think the rule will clearly facil ita te the ple a bargaining 

process and avoid unnecessary tria ls bv taking the defen dant out of 

the position where he has to plav somewhat of a guessing game with 

the judg e. In ma ny s ituations the defen dant reaches some u nd ersta nd ­

ing with the V.S . att orney, but the n must mak e his assessment of 

wh eth er the jud ge is going to accept the arrangeme nt. Tn some cases, 

and pa rti cu larly w ith jud ges who have a rep uta tio n for he avy sentencing. the defen dant may decide it is in his intere st to go to tr ia l, because 

he fea rs the jud ge will not accept the barga in. Tn fact, he may be 

wro ng, and the jud ge might be perfe ctly willing to accept it. Un der 

the proce dure o f the rule the defen dan t can plea d guilty , and the judge 

will exam ine the presentence rep ort and the barga in and then advise 

the defen dant and the prosecution as well if the arrangeme nt is acceptable. Tf not. the defen dant the n can eit he r continue with his plea 

and allow the jud ge to sentence him o r with dra w it.

There is one m atter with respect to iade 11, which we were concern ed abo ut, and with respect to which we w ould recommend th at the 

rule be amended. And th at is the advice to be given to the defen dant
172

before a ple a of gu ilty is accepted. Now, in the case of B oy ki n v. 

Ala bama, 395 U .S. 238 (196 9), the U.S . Supre me Co urt very cle arly 

specified the kin ds of rig ht s which the de fend an t mu st be advised of 

before he p lead s guilty. One of them was his fifth am end ment privilege 

ag ains t self-incrim ina tion. And anoth er is his right to a ju ry tria l. 

An d the th ird is his r ig ht to confront the witnesses a ga inst him.

In additio n, othe r cases have e stab lish ed th at if the defe nd ant is not 

represented by counsel, he has a righ t to be inf orm ed before a ple a is 

made th at he is entitled to counsel, and th at counsel will be a ppoin ted 

if he is ind igent and cannot retain counsel.

Now, for some unexp lained reasons, thes e specific rig hts were not 

included in rule 11(c) . which listed the advice the cou rt must give 

to the defen dant befo re accepting th e plea. Inste ad , the rul e pro vides 

only in effect th at the de fen dant must be told th at he has a right to 

ple ad not guilty , and th at if he does ple ad gu ilty, the re will be no 

fu rthe r tria l. Th e advisory committee conten ds t hat th is limited advice 

is sufficient to exp lain to the defen dant his righ t to a jury tria l, and 

so on. Th e problem is th at the advice specified in rule 11(c) wou ld 

pro bab ly exp lain the rig ht s only to a law yer who know s there is a 

righ t to a jury tria l, a ri ght to co nfront witnesses, and so on. But if 

th e defen dant does not know that he has a ri ght to a ju ry tria l, the n 

sim ply tel lin g him th at there will be no fu rther tria l does no t make 

him aware of the fact th at he has a ri ght to a ju ry tria l which he is 

waiving by p lea din g guilty.

Th e same is time for the righ t to confront witnesses and for the 

fifth ame ndm ent privilege again st self-inc rim ina tion. The adv isory 

committee notes seem to indicate th at by tel lin g the d efen da nt he has 

a rig ht to plead not gu ilty and have a tria l th at the defen dant is inform ed th at he need not incrim inate him self an d need not take the 

sta nd at a tri al, and th at th e jury will be i nstru cte d th at they may no t 

draw any adv erse inferences fro m his fail ure to take the stand.

Now, in practic e, I th in k most Federal jud ges tod ay are g iving the 

specific ins tru ctions, whi ch we recommended be included in the rule , 

because the Sup rem e Court decision in B oy ki n specifically requires it.

I am not clear why the proposed rule s om it this. In most situatio ns 

it only take s a few minutes to advise th e defen dant, and if the d efe ndan t is represented bv counsel and counsel has done his job prop erl y, 

then the matter should be disposed of witho ut any substan tial delay.

So because th is is a m atter th at appears t o be one of constitu tional 

rig hts, we would urg e th at rule 11 be amended to require specific 

advice to the defen dant on the matters th at I hav e mentioned.

Mr. Smith [now presiding ]. Mr. Semm el. if you will bear with us 

fo r a moment, there are some oth er people who are coming in to use 

th is room at 2:30. And so we are going t o suggest, if you are willin g 

to do it. th at we move next door to 2148. whi ch is the lib rary of the 

Ju di ci ar y Com mittee. Th e accommodations are not as large as this, 

but I think they will hold all of us.

So let us a djo urn while we move do wn the hall to 2148.

[W her eup on, th e subcomm ittee recessed, to reconvene in room 2148.]

Mr. Smith. Al l rig ht , Mr. Semmel, wou ld you proceed, please?

Mr. Semmel. B efore I proceed, Mr. Fr ic k has one comment on rule

I I th at he would like to make at thi s tim e.
173

Mr. Frick. Yes; Mr. Smith. My comment relates to rule 11(e) (4). 

In going over the rules, I am somewhat concerned, and as a matter 

of fact very concerned, aliout what a judge should do in the event 

that he rejects a guilty plea agreement. When T say what should he 

do, I mean what should he do in the future in the terms of the par ­

ticular case. It is my feeling that a judge who rejects a guilty plea 

agreement should recuse himself from any further proceeding witli 

regard to tha t defendant or any cases relating to tha t defendant.

Mr. Smith. Why is that ? ‘ i Mr. F rick. The reason I feel that is. if the judge rejects the guilty 

plea agreement, he does so presumably because he feels the term ot the 

imprisonment is not harsh enough. Immediately we have a judge who 

feels that the defendant before him. if he is to be punished, should 

be punished more harshly than the prosecutor thinks.

Mr. Smith. That is, if he is guilty.

Mr. Frick. That is, if he is guilty. What I am concerned about is whether a judge who has rejected 

a guilty plea agreement could go ahead and fairly try that case. The 

reason I am concerned is th at in some of the issues that come up is 

that, first of all, the defendant has pleaded guilty in front of the 

judge, he has admitted th at he is guilty at least to some of the charges 

tha t have been lodged against him. So the judge has a bias toward the 

guilt of the defendant at the beginning.

Mr. Smith. T do not think tha t is necessarily so, because the judge 

knows tha t this is an agreement.

Mr. Dennis. Would it not make some difference, maybe, whether 

you were going to have a jury or not ?

Mr. Frick. I certainly think that would be true. But I am concerned here again with the complete impartiality of the judge in all 

stages of the proceedings. We have to remember that the judge tha t 

is going to be trying this case, in all probability, and deciding whether 

or not to accept the guilty plea arrangement, has had made available 

to him a pre-sentence report which will explain in great detail all 

the elements of the offense and all the circumstances surrounding it. 

I do not know whether a judge can sit in impartial judgment in a 

case like that. Of course, the jury is the trie r of the facts, and presumably would act as a buffer against any prejudice the judge would 

have toward prejudging the case on the facts. But again. I feel it is 

important that something, some guidelines at least should be given 

to a judge as to whether he should or should not recuse himself from 

further proceedings in a particular case where he rejects a guilty 

plea agreement.

Mr. Smith. I think it is an interesting thought. And it might very 

well turn upon the particular case.

Mr. Frtck. If I may offer one example of what the judge might 

do, since he has already previewed the entire case and the presentence 

report, he might rule that certain evidence is inadmissible without 

even permitting counsel to argue the point on the evidence. That 

might occur, because he has in fact reviewed all the evidence in the 

case, and he may feel it is inadmissible, and that evidence will never 

get to the jury, and the arguments about it will never be heard. That 

is one thin g that a judge might do. And again, I think I would be
re luctan t to try a defend ant in fro nt of a jud ge who ha d heard my 

client plead gu ilty in a previous proceeding and who had rejected an 

agreem ent betw een the pro secutor and myself as to wha t the sentence 

would Ik

1

. 1 th in k my client, going into cou rt, if he is fou nd gu ilty 

by a jury, is going up aga inst a stac ked deck of cards, he is rea lly 

in a tough position. And T think some con sideration at least should 

be given to wha t a judge should do in ter ms of recusal fro m fu rthe r 

pro cee ding in the case.

Mr. Blommer^ If T could make an observatio n at th is point, Mr. 

Ch air ma n, first of all. it is not clear to me that the judge will have 

a pres entence rep ort . But even if he does, f do not believe th at a presentence rep ort reviews the evidence of the trial, at least the presentence rep orts I am familiar w ith, do not. Is t ha t common practic e ?

Mr. F rick. Th ey do not review the evidence of the tria l, they review the natur e and the circums tanc es of offense and usu ally the evidence, the ones I am fam iliar w ith, of wh at happen ed.

Mr. Biximmer. Do they not focus on the p ersona l life of t he de fend ­

ant and his histor y r athe r than the offense ?

Mr. F rick. A bsolutely, they do br ing th at into con sideration. Bu t 

th e ones th at 1 have read—an d I do not know wh eth er we are in 

jur isd iction s whe re there are any —but the ones T have seen go into 

the circums tanc es of the offense. I would assume th at a judge, in 

dec idin g wh eth er to accept a plea ba rgain agreem ent, would have to 

have some inform ation about the case in fro nt of him. because unlike 

a situation where you sat throug h the entire trial, he has not heard 

any evidence with reg ard to wha t actua lly happened. And I would 

assume that he would have to have at least some inform ation in the 

presentence rep ort in orde r to make a determinat ion as to wh at 

sentence should be imposed.

Mr. Blommer. 1 just say that th at is not in the rule as prop osed.

Mr. F rk k. I understand that. It is not necessary th at he has the 

presentence rep ort. Bu t in fairness to all judges, 1 believe they almo st 

order that up to decide wheth er a plea, agre eme nt is a fa ir one and 

whether it adequately pro tects th e defe ndant and the public.

Mr. Smtttt. Tiet me inf orma lly ask Professor Remington wh eth er 

the committee considered this possibilitv in your discussions and 

determination with regard to this rule, th e possibi lity th at a jud ge 

might he prejud iced by reje cti ng such a plea.

Professor Remington. Th at is an obviously im po rta nt issue. 

Tt was discussed. Cu rre ntly in Federal practic e, for exam ple, a judge 

who rules on a motion to suppress evidence prior to trial is not au tomatically excluded from pre sid ing at the tri al. Tie may have lieen 

con fronte d by the fact that narcot ics were found in the pocket of the 

defen dant, and defen dant's content ion th at it-wa s the resu lt of an 

illegal search, and lie mav denv the motion to suppress, but lie is not, 

autom ati cally d isqualified. And th at is a more prejud icial situatio n. T 

think , tha n a gu ilty plea in such a case. There is an op po rtu nity to 

file an affidavit of the pre jud ice again st the judge. And T would 

think it good pra ctice in case a defend an t does raise the issue in a 

multi judg e court to get anoth er judge to do it. But the rule does not 

ma ndate th at res ult, it allow s for it. but as has been pointed out, it 

does not require it. Some State statutes— Illino is, for example—p ro ­

vide th at th e judg e shall he recused aut om atical ly. It is an issue,
and it was thoroughly discussed by the advisory committee. And it 

was resol ved in a permissive rat her t han a mandatory way.

Mr. Frick. One of the reasons I brought it up is th at 1 as an attorney, would file a motion in any case to have the judge reeuse 

himself from any further proceedings. If I did that and he refused, 

I would have to appeal. I wonder if we should not consider incorporating some form of recusal or recusal guidelines in these rules as 

apparently the other States have?

Professor Remington. You could have a motion—has that been 

handled satisfactorily ?

Would you similarly file a motion to disqualify the judge in every 

case in which the judge ruled on the pretrial motion ?

Mr. F rick. No, I think that is a little bit of a different situation, 

when he is ruling on th at type of a motion, to suppress. r

I hat is one 

part of the evidence that might lx; brought into trial and can be 

brought into trial.

Professor Remington. I f it is the evidence that the defendant had 

narcotics in his pocket, that can he very serious on the issue oi whether 

the defendant was in possession of the narcotics.

Mr. Frick. I agree with that, but-----

Professor Remington. But that is not the problem, but whether 

the Federal judiciary has been able to handle that problem. And as 

far as we could tell, they had been. So it is the conclusion that they 

could have probably adequately handled this problem.

Mr. Smith. You say. Professor Remington, that some State statutes 

require it automatically?

Professor Remington. Yes.

Mr. Smith. Which is what Mr. Frick is suggesting.

(Io ahead, Mr. Frick.

Mr. Frick. That is one item that T did want to bring to the committee’s attention. That, is basically all that I had—I have to say 

about it. And I hope that it will he considered in the final drafting 

ofcthebill.

Mr. Semmel. T would like to go on to rule 32, which also relates 

to pleas and sentencing, and take up two issues. Basically, the major 

change in the rule is that it provides for mandatory disclosure of the 

presentence report, except if disclosure will be harmful to the defendant. or if it will cause harm to other persons. And. of course, the 

change in this rule is that the practice is now discretionary with the 

judge, and in fact, in many Federal districts there is no disclosure of the presentence reports to the defendant. This is a rather 

strange procedure, because we have a system in which the most elaborate procedural safeguards are set up concerning trials involving 

guilt. However, in fact, guilty pleas account for somewhere near 

approximately 90 percent of all convictions in Federal cases. The 

major question in most criminal cases is not whether the defendant 

is guilty, but in fact whether the defendant shall be sentenced to imprisonment, and if so, how long. And then the judge proceeds to 

make that determination based on information which has come to 

him which the defendant may not know of, and which in fact may 

be wholly erroneous. Of course, the probation officers go out and 

obtain a variety of information. Some of it may be very accurate. 

On the other hand, some of it may be gossip, and some of it may lie
176

a malicious neighbor, and some of it may be someone who is under 

investigation by the police and who is anxious to cooperate, and thinks 

the police will be more lenient with him if be will supply derogatory 

information. _ *

In many cases the information in the report is not obtained directly 

from the informer, tha t is, obtained by the probation officer who at 

least has an opportunity to ask some questions and make some judgment of bis own. The probation officer gets some information from 

local police fdes, and be gets information from the F BI, and various 

other law enforcement agencies which are based on material in their 

files, and so the informer never talked to the probation officer.

The result is th at undoubtedly there are some cases where defendants are being sentenced based on misinformation. Xow, these cases 

do not surface all the time. For one th ing the defendant, if he can 

never see the report, can never later complain or contend that he was 

sentenced based on misinformation. There is a New Jersey case which 

I have cited in my written testimony on page 11, in which the defendant was convicted of forgery and was sentenced to 3 to 5 years, but was 

sentenced to 7 consecutive terms. After he was in jail for 8 years he 

was finally able to discover that there was error in the presentence 

report, and he was thereupon released. Had the information been correct in the first place, lie probably would not have served more than 

approximately a year in prison.

So that the sentencing process, the central area in the whole criminal 

justice system is operating in somewhat of a vacuum.

There were some arguments which were received-----

Mr. Smith. I assume, Mr. Seinmel, you are in favor of the rule as 

proposed ?

Mr. Semmel. Yes; I am in favor of the rule. I only make the point— 

perhaps too strongly, because in the communications received bv this 

committee, particularly from some Federal judges and IJ.S. attorneys, 

there was some opposition expressed to this rule, primarily on the 

theory that sources of information which would dry up and they 

would refuse to come forward if the defendant had a right to inspect 

the report.

Mr. Smith. Under the proposed rule, though, apparently the court 

still has the righ t and the discretion to protect those sources if the 

court feels that this is important.

Mr. Semmel. I think that is right. And I think that largely takes 

care of the problem, assuming the problem existed. The American Bar 

Association Committee on the Standards on Sentencing looked into 

this matter, and concluded that there really is no problem, because 

there are a number of States in which disclosure of the report is mandatory, and there is no evidence tha t there is any more difficulty in 

those. States in obtaining information than there is in States in which 

the report is not made available as a general matter.

So that as far as the rule goes, we support it.

There is one further matter, however, which we think should he 

included in the rule as a matter of constitutional compulsion. And 

that is the question of an evidentiary hearing on matters which the 

judge will take into account in sentencing. If the defendant raises a 

good faith dispute over information in the presentence report, the 

rule simply provides that the defendant shall have the opportunity to
177

comment upo n the rep ort. It does not pro vid e th at he h as the righ t to 

presen t any evidence to rebut inform ation in the rep ort . And fu rther ­

more, it does not provide th at w here necessary lie migh t even h ave the 

righ t to cross-ex amine persons who have given inf orma tio n which is 

derog ato ry to him and which may res ult in a very heavy sentence.

I th in k in con sidering the necessity for th is the committee should 

tak e into account w hat is probabl y the a tti tu de of most di strict ju dges 

with respect to the pro bat ion reports. Now, I have quo ted in my written statem ent from one judge, li e sa id th at , [T jh is co urt has great respect for the prob ati on service in th is an d o ther districts, and 1 believe 

as a whole they are a g roup of officers who a re extre mely objective, very 

concerned wi th the welfare of the defend an t whom they repo rt on, 

and are also atte nd an t to th eir duties as officers of the cou rt. An d 

when the sta tem ents are made cat ego rically, as the y are made here , 

the court has no alt erna tiv e bu t to accept as tru e the inf orma tio n 

furnish ed the cou rt, which in tu rn was obtained by the prob ati on 

officer from the F B I and th e N arcotics B ureau.”

Now, the la st po rtion of that qu ota tion e xplains one o f th e problems 

th at we have here. Th e pro bat ion officer wen t out a nd d id h is job in a 

prop er ma nner. B ut all the in form ati on th at he sub mitted came to h im 

from t he F B I and the Narcotics Bu reau ’s files. Now, when the Ninth 

Ci rcuit Co urt of Ap peals looked at th at confiden tial file, the court 

said: “To say th at it corr obo rate s the very broad charges con tain ed 

in the presentenc e repo rt is an ove rstatement. Moreover, it con tain s 

no thing to show, r at he r t han to assert, that the i nfor man t was reliable, 

or otherw ise to ve rif y the serious cha rge mad e again st Weston. It 

appears from the r ecord in t his case th at Weston’s house w as se arched 

af te r the arre st and nothing was fou nd, no r was any nar cot ics fou nd 

on h er person or in h er p urse.”

In this p ar tic ul ar case, the court was deali ng with a first offender in 

a narcot ics case, and announced an intentio n to sentence t he de fend an t 

to 5 years. A fter looking at this rep ort, the court incre ased th e sentence 

to 20 yea rs, whi ch ult im ate ly the n inth cir cuit reversed because of t he 

un relia bility of die c ou rt report.

Mr. Swith. Supposi ng in that case the court had not announced 

ahead of tim e wha t kin d of sentence he was going to mete o ut, would 

the re still be a question about the con sti tut ion ality ?

Mr. Semm el. Aes; I thi nk so. If we com pare the sit ua tio n to two 

cases w here the Suprem e Court has h eld the re must lie an ev ide ntiar y 

hearing. I think the con stitutio nal issue becomes clear. One is in the 

paro le. An d the second is where the law provides for a sup ple me nta l 

sentence over and above the norm al sentence fo r the offense, because 

ol some other cond uct unr elated to the offense, such as a mu ltiple 

offender sta tute. the sexiffil psyc hopath, a nd so on.

Now. in those s itu ations the Supreme C ourt has held th at due process 

requ ires a separate evide ntiary he aring to determ ine if. for example, 

the de fend an t has co mm itted the act which leads to h is parole revocation. Now, the situatio ns are very s im ila r in a sense, t ha t in each case 

1 lie defe ndant is convicted for cer tain kin ds of conduct. Bu t the issue 

befo re the cou rt is not only the conduct th at he was convicted of. bu t 

some oth er cond uct of the defen dant. I lie parole revo cation is something which happens af te r he was convicted but which is going to pu t 

him back in jail. I he presentence rep ort is so methin g w hich hap pen ed
178

before the conviction but which will also mean that he will have to go 

to jail. But in those situations I thin k that if necessary, where app ropriate, and where the issue is bona tide, the defen dant should have 

a right to cross-examine the witnesses against him. Now, in some cases 

that would not be necessary. In some cases the judge might reject the 

inform ation in the report and say he will not take it into account in 

sentencing. In other cases the judge might lx* satisfied from the 

defen dant’s statement, or whatever positive evidence he could present, 

that the inform ation was false. But I think there will be situ ations in 

which the only alternative is to allow the defendant to cross examine 

the witnesses. In most of the cases this should not present any substantial problem. In the parole revocation case the Supreme Court did 

indicate that perhaps the right to confront a witness is not absolute 

if it was necessary to prevent risk of harm to the witness. And if that 

is the constitutional standard, then I think that would also be appr opriate in this case. But those, I think, are rare situations.

Mr. I )ex xi s. What is t he revocation case ?

Mr. Sf.mmei,. It is Morrissey v. Brewer, 408 T’.S. G71.

Mr. S mith. The two situations are not exa ctly identical, of course, 

because the revocation of parole rests upon an alleged violation of the 

terms of parole. And, therefore, I certain ly agree with the Supreme 

Court tha t he ought to have a hearing and confront witnesses. The 

other situation, the presentence report, is background material for the 

judge in using discret ion in setting a length of sentence which is discretionary with him. So they are not exa ctly identical. An d it may 

very well be that the provision in the proposed rule that the court shall 

afford the defendant or his counsel an opportu nity to comment will 

answer your little caveat here, in that it would seem to me that if the 

defendant and his counsel are not. learning what is in a presentence 

report, and they say. that is not so, that was not me, it was my cousin, 

any judge, before using that material in making up his mind as to what 

sentence to give, would afford some, kind of evid entiary hearing, I 

would think, if he was go ing to use it.

Mr. Semm el. If I was confident of that T would not recommend the 

change. I do not think judges do that.

Mr. S mith . It takes more time and builds up an alrea dy busy 

schedule.

Mr. Semmel. And that is the problem. And I recognize that time is 

always a problem in these cases. „

Mr. Dex xis [ now presiding!. O f course, the problem with what you 

suggest is that, you are going to have a second trial almost every time 

on the question of sentence. And I see the thrust of what you are sav ­

ing. A good judge would cure it, because a good judge in the case that 

Mr. Smith suggests, if there was a real question raised of fact, would 

inform himself. But if you get a rule which says he has got to do it, 

you are g oing to have another trial ever y tim e there is a sentence. A nd 

I do not know whether that is practical or not.

Mr. Semm el. I f we had all good judges, we would not need so many 

rules.

Mr. Dex xi s. Tha t is right.

Mr. Semm el. But there is a wide variety among judges. T thin k 

the time problem is the same kind of problem which comes up all the 

time, that whenever you talk about due process, due process takes time.

Mr. Dex xi s. True.
179

Mr. S emmel. I do not think the result will actua lly be a second trial 

all the time. 1 do th in k the jud ges sentence based on some inf orme r 

who says th is person who is found with one gr ain of heroin is a majo r 

narcot ics dealer, and the defen dant says. I am ju st a poor junkie. 1 

th in k th at def endant should not lx* sentence d because he is a majo r 

narcot ics dealer. And if the judge is goi ng to take th at into acco unt, 

then the re should he a hea rin g in th at typ e of situ ation.

Mr. Dennis . Th ere is som eth ing to what you say. I doub t if you 

can get the cou rt, tho ugh, to say th at you have got a constitu tional 

rig ht to due process to an ev ide nti ary he aring pr io r to sentence. It is 

not quite the same as a parole revo cation or second offense, because 

there you do have to prove a defin ite fact, o f course, in order to ju stify

i what you are doing.

Mr. Semmel. It is tru e th at in the sen tencing case the re is a dis cre ­

tio na ry element in the jud gm ent. But very often it is ap pa rent t hat the

» judg e in fact relied on the statem ents in the presentence rep ort in the

sen tencing based on th at inf orma tio n, jus t as in a parole revo cation 

the de fen dant would be sent back to prison based on a specific fac tua l 

determination. And I think in prac tice th ey may lx4 v ery close, in effect.

Mr. Dennis. Th at is an int ere sting question. O f course, the rule say s 

the d efe ndant could comment. I suppose he would be given a chance to 

deny it and put for th a lot of a rgu me nts. And if he did a good job. of 

course, a court, who was sittin g there conscientiously oug ht to then 

call in some people. Bu t it is tru e some of them do and some do not.

Mr. Semmel. I think that is prob abl y wha t happens l ig ht now.

Unle ss there are more questions to th at rule . I would like to talk 

about discovery, rule 16 and to some extent the notice of alibi rule, 

rule 12.1.

One of the app roa che s which this rule tak es is the so-called pa rity 

app roa ch to pretria l discovery, which suggests th at if the de fend an t 

is going to be given a certain amo unt of discovery rig hts again st the 

prosecution, that the pro sec ution shou ld lx* given like rig hts aga inst 

the defen dant. I think this app roa ch ignores somewhat the rea lity of 

the resources of th e pa rti es in pretr ial inv estiga tion, as well as rai sin g 

serio us con stitution al problems under the fifth and six th amendm ents.

Now. when we are dealin g with pretr ial disc overy we hav e to realize 

that the prosecution has ava ilab le to it what is pro bably the best nretri al discovery device ima ginable, which is the gran d jury. The Governme nt is free to call witnesses, i nclud ing potential defense witnesses.

• before th e gra nd jury, and to question them at length . They can make

tra ns cr ip ts so th at the y will have them ava ilab le fo r tria l in case the 

defense witnesses in any way attem pt to cha nge their sto ry at tria l. 

The def endant is not even assured th at he will have a like benefit of 

Government witnesses called before the gran d jury, because the law 

does not requ ire the Gov ernment to ma intain a tran sc ript of grand 

ju ry proceedin gs. And in man y cases th ere are no minutes taken of the 

gran d jury testim ony.

In addition , even if the y are taken, t he Gov ernment very ofte n uses 

hearsay testimony b efore the gran d jury, which is p ermissib le, so tha t 

the perso n who testifies at the grand jur y may be the F B I investigatin g 

officer, hut the witn ess at the tri al is the actual person who observed 

the conduct, but w ho has not testified before the gran d iurv.
ISO

In addition to the grand jury, there is available to the Government 

the vast resources of local law enforcement authorities, the FB I and the other various Federal agencies engaged in law enforcement. Perhaps some indication of what is available to defendants is the fact that the Criminal Justice Act provides a limit of $300, except in extraordinary cases, for all pretrial investigation and experts on the 

part of defendants. And even when we get defendants who are not indigent, the average defendant spends so much of his money in at­ torney’s fees tha t he has little, if anything, left for investigative 

resources. In fact, the advisory committee states tha t the Government nor­ mally has resources adequate to secure much of the evidence for trial. It is really only in exceptional cases that the Government, in the opin- 4

ion of the advisory committee, needs discovery against the defendant, but the rule here is one of general applicability, which establishes some very extraordinary rights on the p art of the Government to discovery. 4

For the first time, discovery against a defendant is unconditional. Until now the Government’s discovery against a defendant has been conditioned on the defendant’s seeking discovery from the Government. Second of all, the discovery has been expanded particularly to in­ clude names of witnesses the defendant intends to call at the trial. And in addition, the defendant now is obligated to provide any physical evidence and any documentary evidence that he intends to use at

trial. •.

Now, I think Professor Remington earlier, in referring to the constitutionality of this kind of unconditional discovery against defendants, referred to the oft cited opinion of Justice Traynor in the California Supreme Court, Jones v. Superior Court. I think, however, that 

case illustrates just how narrow a situation he was talking about. And the subsequent decision of the California Supreme Court illustrates why we believe tha t the proposed rule 16 is unconstitutional as applied 

to defendants. In the Jones case the discovery was limited to issues related to impotency, which was a defense in a rape trial, and it was held that the defendant had to provide information relating to that 

defense. Now, in tha t situation there was nothing that the defendant was going to provide the Government which could possibly incriminate him of the rape; all he was going to do was give the necessary informa­ tion to the Government to prepare fo r his defense of impotency. There was nothing which the Government could use in its affirmative case. 4

Later on the California Supreme Court had another case, Crudhonime v. Superior Court, 2 Cal. 3d 320, 466 P. 2d 673, 85 Cal. Rptr.

129 (1970), which was an attempt there to obtain the same kind of discovery, including names of witnesses, and documents, for use in a *

criminal trial. And the California Superior Court rejected the discovery and said tha t the Jones case had to be analyzed in the light 

of the policy considerations there. Th at the issue is whether the infor­ mation supplied by the defendant could be of use to the Government in 

its case in chief, so that the information supplied by the defendant would then be used by the Government to convict him. And then, they 

gave several examples of situations in which that might occur. In the case of the defendant in a murder cast' if he intends to call a witness to 

testify tha t the defendant killed in self-defense, pretrial discovery of
1S1

th at inform ati on could pro vid e the pro secutio n with an eyew itness to 

th e de fend an t’s homicide. Th e effect of disc losing the nam es of wi tnesses which a d efen da nt intends to call only a s a last r esort t o t estify 

in his defe nse is to pro vid e the pro secutio n wi th testim ony which can 

be used in makin g its prim a facie case. And th is just runs rig ht up 

ag ains t the entire princ ipl e of the pri vil ege ag ains t self-incri mi nation, th at the defen dant cannot be forc ed to provide the prosecutio n 

wi th t he evidence to con vict him.

Xow, one of the problems with this rule , whi ch Pr ofessor Lesnick 

will tou ch on at slightly gr ea ter len gth , is the fact th at the Supreme 

Cou rt in the rulem aking process does no t con sider specific situatio ns 

in the nor mal case and con trover sy con tex t and does not pu rp or t to 

he ma kin g a constitu tional adjud ica tio n. Nevertheless, the fac t th at 

the Supre me Co urt has prom ulgated rules carries wi th it a certa in 

am ount of force. A nd a t least one distr ict court has re ga rded th e rules 

as ha vin g a presum ption of co nstitution ali ty, an d they are not about 

to overrule tlie Supreme Court. So th at the likelih ood is th at at leas t 

the low er courts are no t going to give muc h attention to these constitu tio na l issues because of the fact t hat t he S uprem e Cou rt h as pr omulg ate d the se rules.

Th e same constitu tio nal problem aris es un de r the six th amend ­

ment. I th in k it is perhap s even cle are r un de r the six th amend ment, 

whi ch pro vides th at the defen dant shall have the ri ght to have compulsory process fo r o btain ing witnesses in his fa vor. An d th is has been 

held to include, of cours e, the righ t to actua lly hav e the witnesses 

tes tif y at tria l, and to pre sen t o ther evidence at trial.

Xow, rule 1 6(d ) wou ld imp ing e up on thi s right , because it would per ­

mit the co urt to refuse t o allow the witnesses to testify at trial , oth er 

th an the defen dant, if the de fend an t fail ed to provid e a lis t of witnesses 

pr io r to tri al.

Xow, the arg um ent, of course, in fav or of the constitutiona lity of 

th is provision is th at since the de fend an t is going to reveal the inform ation at tr ia l any way, why there is no ha rm in ha ving him reveal 

it before t rial . Bu t the six th amend ment sim ply says th at the defe nd ­

an t has th e righ t to p res ent evidence at tria l. It does not say he ha s th e 

righ t to do it if he coo pera tes with the prosecutio n by telling them 

before tria l who t he witnesses ar e goin g to be, or w ha t his docum ent ary 

evidence is going to be. So th at the same problem here is presented, 

an d again because of a seriou s constitu tio nal qu estion.

In this reg ard, I would also br ing to yo ur att en tio n the AB A provisions on sta nd ards re la tin g to pr etrial disc overy in criminal cases, 

which are cite d in my me morandum . Th e AB A at lea st in th eir pr ovisio n on discovery ag ains t th e d efen da nt star ts ou t by say ing , “su bject 

to constitu tio nal lim ita tio ns.” A t lea st t hat kind of caveat would make 

it clear th at the rules a re no t i nte nded as an opinion th at t he y are consit ution al in all cases as a pp lie d to def end ant s.

Mr. Den nis. It seems to me I hav e go t a pr et ty valid po int to my 

notion in a situatio n where a de fend an t does not know wh eth er he 

wa nts to call a witness or not. And th at will depend on how the 

tria l goes. An d he may not want to pu t him on th at list . An d I can 

see how th at could be a rea l em barra ssm ent to a de fend an t in many 

situations.

13
182

Mr. Semmel. T am glad you reminded me of that, Congressman. It 

lias lieen suggested th at the defendant could avoid any discovery by 

simply saying, I will not know until the prosecution’s case whom I am 

going to put on, therefore, I cannot tell you who I intend to call. And 

the rule would become meaningless.

Mr. Dennis. That is true.

Mr. S emmel. On the other hand, if that kind of answer is not accepted routinely, then you have these constitutional problems.

ATr. Dennis. I think you may have a real problem there. T do not 

think I am much impressed by the idea that a trial judge will rule 

everything is constitutional just because the Supreme Court—that the 

court is going to sit down and write these rules and pass on them. I 

think that is too unrealistic.

Mr. Semmel. Tf there is nothing more on that. T have a few comments on discovery by the Government, and particularly on the question that has been raised as the greatest objection by the Justice Department, the names of the government witnesses being supplied to the 

defendant.

T think it is hard to exaggerate how important this is in the preparation of an adequate defense. And T am sure that you gentlemen, being 

lawyers, and having participated in trial, are aware of that. It was 

emphasized to me by the fact that some defense lawyers, including 

apparently, the people on the advisory committee, were willing to 

buy what I considered to be a bargain, that in order to get discovery 

of the names of the Government witnesses, they were willing to provide discovery of the name of defendant’s witnesses. T do not think that 

those two necessarily go hand in hand, because the considerations are 

much different in terms of investigative ability.

But to place this whole issue in the context of the coercion of witnesses, I think is just placing it out of focus. Certainly, the members 

of the advisory committee, the defense lawyers there, did not want 

to know the names of prosecution witnesses so they can go out and 

suborn perjury, or participate in. or at least through their clients to 

arrange for the assassination of these witnesses. They had perfectly 

legitimate reasons for wanting that information.

Now, this really comes down to a question of whether we should 

adopt the rule of general applicability, and then provide, as the rule 

does, for exceptions. And the rule clearly allows the trial judge to 

take whatever action is necessary to protect a witness, including denial 

of the name of the witness to the defendant. And T think the members 

of the Judicial Conference who spoke today, have really covered this 

in quite detail.

It just seems to me from my experience that normally most witnesses 

in Federal trials are not coerced. There are, of course, cases of coercion, 

and cases of assassination and subornation of perjury. But that is an 

exception to the general rule. And it should be treated as such.

My own experience was in Illinois where we had a rule requiring 

the pretrial disclosure of the names of the prosecution witnesses. I 

am not aware that this has caused any special problem. All the horror 

stories that the Justice Department told us were in a context where 

there was no required disclosure of the names of witnesses. I suppose 

the neonle who are going to assassinate witnesses have no difficulty in 

finding out who they are. And I think that the people who require
183

disc losure, the ave rage de fend an t, and pa rticul ar ly the defen dants 

of lim ited mean s, who cannot engage in subs tan tia l inv estig ati on , are 

not the people who are engaged in this kin d of coercive conduct. And 

we s hould no t draw a rule designed to take care of a s mall numb er of 

cases inv olv ing organiz ed crim e in narco tics and ignore t ha t there are 

a whole othe r varie ty of cases in which this is sim ply not a prob lem.

Mr. Den nis. Wo uld the y no t or dina ril y know who the witnesses 

are, as a m atter of fac t ?

Mr. Semm el. I t varies, depend ing on the na ture of the crime. An d 

pa rticul ar ly when you get int o conspiracy cases, th e d efe nd ant m ay no t 

know who the witnesses are. So it v ari es very much , d ependin g on the 

na ture of the crim e.

For example, if the crim e is one whi ch a defen dant denies havin g 

com mitted , then the issue is ide ntification, such as, say. Federal ban k 

rob ber y cases. The defen dant is u nli kely to have any in form ation as to 

who w ill iden tif y h im in a case o f th at kin d.

Mr. F ric k. I might add also, tha t a defe nd ant would have p ar tic ul ar 

difficulty in iden tif ying p ote nti al witn esse s if in fac t he were innocent 

of th e crim e o f w hich he was charge d. An d we must, of course, presum e 

th at to be the case.

Air. Semm el. If rule 16 with respec t to nam es of the Government 

witnesses goes into effect, t hen I wou ld urg e you to also make a minor 

amend ment to the Jen cks Ac t in th is con text. A t pre sen t the Jencks 

Act p rohibits compulsory disclo sure of pretrial statem ents of witnesses. 

An d it follows th at the sta tem ent does not have to be disclosed until 

the witness has ac tua lly testified at th e trial.

Th e res ult of th at is th at when the Gov ernment lit erally carries 

ou t the ter ms of the Jencks Act, the whole tri al has to stop, and the 

defe nse the n has to read the sta tem ent, and the n pr ep are fo r cross 

exam ina tion. An d this some time s tak es as lon g as ha lf a day , or even 

more, depending on how leng thy the sta tem ent is, and the like.

Th ere are really two reasons why Con gress passed the Jencks Act. 

One was to eliminate fish ing expedit ion s into the Gover nment 's file. 

An d th at is tak en care o f by the ter ms o f the act. The only th in g th at 

has to be reve aled under the ter ms of the act is a sta tem ent which is 

verba tim or s ub sta ntial ly verba tim sta tem ent adopted bv the witness. 

Th e other reason was some fear alo ng the lines th at we discussed, 

th at harm would come to witnesses if th eir names were revealed in 

the course of rev ealing th eir statem ents. Bu t. of course, th at does 

not ap ply at all. once th ei r nam es are revealed. And I th in k th at in 

pract ice most U.S . att orneys are giving the statem ent pr io r to trial. 

I t ju st sim ply does not mak e sense to hold them hack. Sometimes 

the y may not furnish sta tem ents ea rly in the proceeding s, bu t certainly in the week or 10 days before the tri al the y will release them. 

An d th is amendmen t would sim ply perm it the cou rt to require the 

disc losu re of those sta tem ents at an ea rli er date. The court , if the 

Jencks Act were ame nded to allow pr e-tri al del ive ry of statem ents, 

could still refuse, for good cause shown by the Gover nment , to allow 

the release of the statem ent.

There is one other matter with resp ect to discovery bv the pro secution. An d th at is. the scope of the du ty of the pro sec uto r in obta in in g the inf orma tio n which he is required to disclose. Now. for 

some reason, whi ch is not expla ine d in the com mittee notes, there
184

is a difference in the scope of the obligation, depending upon what 

is to be disclosed. In dealing with statements of the defendant, and 

examinations and tests, in those areas the prosecutor is required to 

disclose material not only which he may have, but which is obtainable 

by the exercise of due diligence. Tha t is over in rule 16 (a)(1 )(A ) 

and 16 (a)(1 )(D). Discovery must be made of material which is 

within the possession, custody and control of the Government, the 

existence of which is known, or by the exercise of due diligence may 

become known, to the attorney for the Government. So in effect, the 

attorney simply cannot look at his own file which may have been 

handed to him and say, this is all I have. On the other hand, for some 

unexplained reason, when it comes to prior convictions of either '

defendant or witnesses for the prosecution. 16(a)(1 ) (B) and (E) 

simply talk in terms of information within the knowledge of the 

attorney for the Government. *

Now, what is surprising about this is that one of the simplest things 

that the Government can do is to get the prior conviction records.

They are readily available from the FB I. We have been informed 

by the FB I that, they provide something like 40,000 criminal records 

a day to law enforcement officials around the country. They will not, 

and indeed are prohibited by statute, from making this available to 

private attorneys. And. of course, these conviction records are vital 

to cross-examination. There is literally no way defendant can get 

this information other than from governmental sources. And so unless 

there is some explanation which is not offered in the notes, we would 

strongly urge that the language of the sections regarding 

prior convictions of the defendant and Government witnesses be 

amended to conform to the sections dealing with discovery of tan ­

gible objects, examinatibns, and tests, and statements of the defendant.

Mr. Frick. Tf T may interrupt a minute, I had a particular problem 

with this sort of situation in Maryland not long ago in the tria l of 

a murder case. T had an 18-vear-old defendant who was accused of 

felony murder. T obtained from the prosecutor a list of the Government witnesses, and reviewed tha t list with my cocounsel. And he 

said. I need these two guys A and B who were at the top of the 

list and who were listed as witnesses to the murders. And I went 

hack to the prosecutor, and I said, “Tom, do you have any prior convictions on these guys?”

And he said, “Why do you ask?”

And I said, “Because my cocounsel knows that these guys have been 

dealing in drugs and narcotics out here in Prince Georges County 

for 25 years. Do you have anything on pr ior convictions?”

“No, I do not,” he said, “nothing in my file.”

And I said. “Would you call the FB I and see if they have anything?”

A.nd he said. “No.”

“Would you call the police department and see if they have anything?”

And he said. “No.”

And so I called the FB I and asked for the record of their convictions. And they said, “No.”

And I called the Prince Georges County Police Department and 

asked for any record they had, and they said, “No.”

And I ended up summoning the chief of police of Prince Georges 

County on the date of a trial, who handed me a paper saying, “I will
185

produce whatever record the court requires with regard to these eye 

witnesses.*’

And I also had to go to the District of Columbia Superior Court 

and file there under the reciprocal subpena statute a motion to require 

a subpena from Maryland to be honored in the District of Columbia, 

so I could subpena the F BI records from the F BI building.

It was unbelievable to me that the prosecutor can merely pick up 

the phone and call the FB I, and give the FB I the number, and obtain the criminal i-ecords th at he needs to impeach a witness at trial, 

and I cannot. And I think tha t this rule could be easily changed so 

tha t I would have the same facility as the prosecutor in obtaining 

those records.

Mr. Semmel. On the same subject, as one final point, on discovery 

by the Government, the Advisory Committee note states that it 

determined not to codify the Brad y rule which requires disclosure of 

exculpatory material. We think disclosure of exculpatory inform ation should be included in rule 16 because the law is presently vague 

as to the same issue that I have just been discussing, what effort the 

prosecutor has to make to obtain exculpatory material. It seems to me 

that a reasonable approach is tha t wnich is found presently in the 

proposed 16(a) (A) and (I)), rules requiring the prosecutor to use due 

diligence at least in inquiring of other governmental agencies. 'T'hat 

obligation is not clear from the present state of the cases. And it could 

be clarified by simply including in the rule provisions for disclosure 

of exculpatory material under the same standard that is provided for 

statements of defendants and documentary7

 and tangible evidence.

If there arc no further questions on discovery, I would like to make 

one closing comment on the issue of summons and arrest.

We fully support, the provisions of the rules as adopted by the. 

Supreme Court regarding the use of summons in place of arrest, except 

where some showing of necessity is made. I think the issues have been 

fully explored. Again, I think the Government is taking the exceptional case and urging tha t the normal rule be adopted to meet the 

exceptional case rather than what the Advisory Committee has done, 

which is to adopt a rule which follows the norm and then provides 

exceptions to take care of the Government interest in this situation.

One time that came up my own experience was in representing a 

cbent who was arrested on a charge of conspiracy to harbor a deserter. 

She was the mother of five children, and she was arrested when her 

two pre-school children were at home. Before she left she called her 

babysitter, who was not home. She did not know that her babysitter 

had also been arrested as an indicted coconspirator. She was actually 

forced to leave her children unattended for some time. The story had 

a happy ending in the sense that the charges were dismissed without 

trial. But these are the kinds of things that could lx* easily avoided 

through the summons process. I do not think that that woman was 

about to flee if she had been notified by the Government to appear in 

court rath er than having the FB I come to arrest her in the middle of 

the day.

I appreciate the time tha t you have given me. And now, Professor 

Lesnick will address you on the other issues.

[The prepared statement of Herbert Semmel follows:]
Statement on Beha lf of the National Association of Crim ina l Defense

Lawyers and th e Washington Council of Lawyers on th e P roposed A mendments to the Federal R ules of Crim ina l Procedure, Prepared by Herbert

Semmell, Center for Law and Social P olicy

We appreciate the invitation of the Subcommittee to submit comments and 

suggestions concerning the proposed amendments to the Federal Rules of Criminal Procedure submitted to the Congress by the Chief Justice on April 22, 1974. 

The National Association of Criminal Defense Lawyers is a nationwide organization of 1,250 lawyers actively engaged in the practice of crim inal law. 

The Washington Council of Lawyers is a voluntary association of lawyers in 

the Dis trict of Columbia in private practice, in government, and in tlie law 

schools. The Council has more than 400 activ e members.

After a careful review of tlie proposed amendments, we conclude th at with 

some changes suggested below, the amendments should be approved, leaving to 

judicial inte rpretation and tlie rule-making process the task of clarification and 

furth er improvement of minor deficiencies. The remarks below are addressed to 

the major issues raised by the proposed amendments. Although not included in 

tlie detailed remarks, for the reasons set for th by the Advisory Committee we 

also fully supp ort the provisions of Rule 4 which provide for the use of summons instead of arre st unless a valid reason for an arrest has been demonstrated. 

We find the fear s of the Justice Departm ent with respect to this change to be 

illusory and believe tha t good sense of tlie United States Judges and Magistrates 

will protect tlie just inte rest of the government in situatio ns where an arr est 

in the first instance is necessary.

The issues addressed below are as follows:

Rule 11—The regulation of the plea bargaining process is equitable and will 

fac ilitate disposition of cases without trial, p. 4.

Rule 11—The provisions on advice to the defendant should be made more 

specific so as to meet good practice standard s and constitutional requirements, 

p. 6.

Rule 32—Disclosure of pre-sentence reports to the defense is necessary to 

ensure accuracy and to avoid inju stice and may lie c onstitutionally required, 

p. 9.

Rule 32—Tlie defense should be given an evidentia ry hearing if contested factual issues arise which are relevant to sentencing, p. 14.

Rule 16—The relationship of pre-trial discovery to investigative resources, 

p. 20.

Rule 16. Tlie discovery rules as amended fall short of the minimum standard s 

of the American Ba r Association with respect to disclosure by the g ove rnm ent:

A. Limitations imposed by the Jencks Act, p. 25

B. The affirmative duty of tlie United Slates Attorney to obtain information 

subject to discovery, p. 27

C. Failure to require disclosure of exculpatory material, p. 30.

Rule 16—The provisions for compulsory unconditional disclosure by defendants 

impinge upon righ ts protected under tlie Fifth and Sixth Amendments, p. 31.

Discovery by defe ndants and the privilege aga inst self-incrimination, p. 32.

Tlie Sixth Amendment right of defendan ts to present witnesses in the ir own 

behalf would be infringed by the denial of right to call witnesses and present 

physical and documentary evidence if a defendan t declined to comply with compulsory discovery requirements, p. 37.

rule i i— PLE AS

The regulation of the plea bargaining process is equitable and will facilitate

disposition of cases without trial

The major change effected by Rule 11 is a salu tory one—it recognizes the rea lity of plea barg aining and regulates the process. The major change in current 

prac tice is the provision allowing the defendant to w ithdraw the plea if th e co urt 

reje cts the bargain and notifies the defendant it inten ds to impose a sentence 

less favorable to the defen dant than contemplated by the agreement. Rule 11 

(e )( 4).

We are surp rised that some federal judges are opposed to this change, some 

apparen tly on the ground that the proposed rule would involve the court in the 

plea bargaining process. Proposed Rule 11 (e )(1) expressly excludes the court 

from any participation in the plea bargain ing discussions. The only “partic ipa-
187

tio n” by the judge in the process is the judge’s decision to accept or reject the 

bargain. But judg es in most federal dist rict s, where the prosecution may recommend a sentence, have been doing precisely tlie same tiling for many years. 

The only change here is to make the process fa ir to the defe ndant by allowin g 

him to withdr aw his plea if the b argain is reject ed by the judge. Such a provision 

seems overwhelmingly fa ir on its face. The reality of plea barg aini ng is such 

th at a defe ndant may sometime find it to his advanta ge to plead guil ty even 

if he ass ert s his innocence. In North Caro lina v. Alford, 400 U.S. 25 (1 97 0) , the 

Suprem e Court held there was no denial of due process in accepting a guilty plea 

from a def end ant who neverth eless asserte d his innocence. The Court recognized 

th at the evidence aga inst a defe nda nt may app ear to be so overwhelming th at a 

guil ty plea is in his best inte res ts despite his asserte d innocence. The same consid eration s apply on the side of the government. Difficulties of proof may mean 

th at a plea to a lesser included offense or in exchange for a relat ively light 

sentence may be the best obtainable and in the public inter est.

The ability of the criminal just ice system to function requ ires that plea bargainin g l>e encouraged and the numbe r of tri als needed be kep t to a minimum. 

Problems of delay are severe in many fede ral districts . Plea barg ainin g encourages t he disposition of cases with out tria l, is indeed esse ntial to tha t process. 

The practice of binding the defe nda nt to a plea but per mit ting a judg e to rejec t the consideration and impose a stiff er sentence discou rages a defe ndan t 

from pleading. It is no sec ret th at c erta in fede ral judges are regarded by defense 

counsel and prosecution alike as maximum senten cers, resu lting in a reluc tance 

of defens e counsel to recommend guilty pleas even if a reasonable sentenc ing 

recomme ndation is made by the government. The proposed Rule 11 will do away 

with such impediments to the disposition of cases by allowing the withdr awal 

of the plea if the barg ain is rejected by the judge. It will ensu re simple fa irness to defe ndants who now play Russian rou llette.in many dis tric ts when they 

plead guilty, never knowing if th e barga in will be accepted.

Othe r judges have expressed opposition to Rule 11 (e ) on somew hat opposing 

grounds, th at it will remove too much of the sentencing power from judge s because the pres sure of court cale nda rs will coerce judge s into accepting the bargain. This is indeed a feeble objection by a federal judge who wields such 

awsome power in the sentenci ng process. The judge should have no difficulty in 

rejectin g a barg ain he regards as unwise or unw arra nted . It is hardly appro ­

pri ate to abandon a procedu re th at will fac ilit ate plea agree ment s and th at is 

so fundam entally fa ir because a judg e will feel a litt le pres sure from his calendar. Indeed, some second thou ghts on the pa rt of the judges migh t be desira ble 

before reje cting a plea agreemen t which the prosecution and defense attorneys, 

the person s best acqua inted with the case, find e quitab le and in the best intere sts 

of the p ublic and the defendant.

The provisions on advice to the defe ndant should be made more specific so as

to meet good pract ice sta nda rds and constitu tion al requ irem ents

Rule 11 (c ) which governs advice to a defend ant before acceptance of a plea

should be amende d to specify th at the defe ndan t be notified of his recognized 

con stit utiona l righ ts and th at his guilty plea waives such righ ts. Such specificity will ensu re protection to defe nda nts and at the same time reduce reque sts 

for app ellat e an d col lateral review of guilty pleas.

Tn Boykin v. Alabama. 395 T'.S. 23S (1 96 9) , the Suprem e Court held tha t a 

defe nda nt must be advised of his Fif th Amendment privilege aga ins t self-incrim ination, his rig ht to a jury trial, and his righ t to confron t witness es aga inst 

him. 395 U.S. at 243. The court expla ined the importance of a full statem ent of 

rights before acceptin g a guilty plea :

“What, is at stake for an accused facin g death or imprisonm ent demands the 

utmo st solicitude of which cour ts are capab le in canvassing the ma tte r with 

the accused to make sure he has a full und erst and ing of wh at the plea connotes 

and of its consequences. When the judg e discharges th at function, he leaves a 

record adeq uate for any review th at may lat er be sought (ci tat ion omitted) 

and fore stalls the spin-off of coll ater al proceedings th at seek to probe murky 

memories.” 395 U.S. at 243-4 4.

The proposed Rule 11 ( c) does not give the defe nda nt the solicitude the Court 

required in Boykin and does not create a record which bar s serious coll ater al 

atta ck. In place of a specific instruc tion as to a rig ht to a jury trial, or to confront witnesses, the proposed Rule only requ ires the defe nda nt be a dvised “the re 

will not be a fu rth er tri al of any kind” (Rule 1 1 (c )(4 )) . In place of an ex-
188

plan ation of his righ t to plead not guilty and yet not be compelled to testify at 

tria l, the defendant is merely told tha t he has a righ t to plead not guilty and 

I>ersist in that plea (Rule 11(c) ) ( 3)) . Per hap s trained lawy ers know such 

rights exist but no such assumption is warranted in the case of defe ndants in 

criminal cases. If one is unaware of a right to jury tria l, how does one knowingly 

waive that righ t if he is told only th at he will not have a trial of any kind. 

If the defe ndant has never heard of his right to remain silent, how can be learn 

of its existence by telling him that he has a right to plead not guilty.

The Rule also omits one other fundame ntal right about which defendan ts 

should be advised at the time of a plea, even if so advised earlier , the right to 

counsel. U.S. v. LaVallee, 330 F.2d 303 (2d Cir.) cert. den. 377 U.S. 998 (1964).

Why these fundamental rights are not specified is somewhat of a mystery. 

Most fede ral judges specify all these righ ts and more before accepting a plea. 

The entire process usually takes about five minutes, particularly if the defense 

counsel has discussed these matters with his client in advance of the hearings, as 

defense counsel should. The Federal Rules of Criminal Procedure should not invite judges to do less than current practice, nor should they sanction records 

which will leave in doubt whether the defendant understood his righ ts and 

made an informed, voluntary decision to plead guilty.

Therefore, Rule 11(c) should be amended to require tha t the defendan t also 

understand his right to counsel if not represented, including right to appointment of counsel for indigent defendants, right to jury trial, right to confront and 

cross-examine the witnesses aga inst him. and his Fifth Amendment privilege 

against self-incrimination.

RU LE 3 2 — SE N TE N CIN G AN D JU DGM ENT

The proposed Amendment to Rule 32 gra nts to defen dants the right to inspect and comment upon the pre-sentence report, except where the court finds 

that disclosure would result in harm to any person, violate confidentiality, or disrupt a program of rehabilitation of the defendant. The amendment would bring 

Rule 32 into subs tantial conformity with the ABA Stan dard s Relating to Sentencing Alternatives and Procedures § 4.4 (1967). It reflects the prac tice currently followed by some District Judges, probably only a minority of the Distri ct Court bench. We support the proposed amendment as necessary to protect 

against the injustice of sentencing based upon possibly inacc urate, incomplete, 

or wholly false inform ation. However, we subm it tha t if the defe ndant raises 

a substan tial factual issue on any allegations in the report likely to affect the 

sentence, he should be entitled to a hearing on the issue, not merely the right 

to comment now contained in Rule 32 ( c) (3 ).

Diaclodure of prcscntence reportd to the defence id necessary to endure accuracy

and to avoid, injustice and map he constitutionally required

Our Constitution wisely requires the most stringe nt procedural safeguards 

before an accused can be convicted of a crime. But in the vast majority of cases 

these procedures have little impact because the case is disposed of by a plea 

of guilty. It is estim ated tha t over ninety percent of all convictions are the result 

of guilty pleas. Advisory Committee Notes to Rule 11. Committee Print, p. 31. 

In almost every case the real issue is the sentence, not guilt or innocence. Yet, 

this most crucial determination is made in the majority of cases based on information contained in a pre-sentence report which is never shown to the defense, 

information which may be accu rate but may also be the gossip of malicious 

neighbors, the imagination of a suspect eager to cooperate with law enforcement 

officials, or the unverified stateme nt of faceless informers.

Althought many probation officers make some attempts to verify inform ation, 

the amount of time which can be devoted to a partic ular case is necessarily 

small. Probation officers lack the power to cross-examine their info rma nts and 

often fea r th at close questioning will frighten off sources of “informa tion ”. 

Much of the information they repo rt to the court is second hand, from the 

records of local police depa rtments or the FBT. and the probation officer has 

never even spoken to the informant. In case of confidential informants, the probation officer does not even know the inform ant’s name. Yet the Distric t Judges 

tend to rega rd the pre-sentence repo rts as highly reliable. For example, in 

‘United Stated v. Weston, 449 F.2d 626 ( 9th Cir. 1971). the Dis trict Judg e in ­

creased the sentence from five to twenty years on the basis of reports by the 

FBI and the Narcotics Bureau that defe ndant was a majo r narco tics dealer. 

The sentencing judge comm ented:
189

•'Well, as I commented, Mr. Kempton, in the companion case, the Jackson case, 

this Court h as great respect for the probation service in this and other districts, 

and I believe as a whole they are a group of officers who are extremely objective, 

very concerned with the welfare of the defendants, who they report upon, and 

also are attentive to their duties as officers of the Court.

“And when statements are made categorically as they are made here, the 

Court has no alternative, in the face of contrary factual information, rather than 

simply a vehement denial, but to accept as true the information furnished the 

Court which in turn was obtained by the probation officer from the officers of 

the Federal Bureau of Narcotics and Dangerous Drugs.”

When the Court of Appeals for the Ninth Circuit reviewed the confidential 

information submitted to support the allegation tha t defendant was a major 

narcotics dealer, it concluded:

”To say tha t it corroborates the very broad charges contained in the presentence report is an over-statement. Moreover, it contains nothing to show, 

rath er than to assert, that the informant was reliable, or otherwise to verify 

the very serious charge made against Weston. It appears in the record in this 

case tha t Weston’s house was searched after her arr est and nothing was found, 

nor was any narcotic found on her person or in her purse.” (448 F. 2d at 630).

The Weston case is a rare example where sentencing upon vague allegations 

surfaces in a reported opinion. But experienced attorney s recognize the attitu de 

of the District Judge toward the probation report as typical. It seems almost 

incredible tha t our system permits people to be imprisoned for years without 

being given the information upon which the sentencing judge relies. In State v. 

Pohlabel, 61 N.J. Super. 242, 160 A. 2d 647 (App. Div. 1060 ), the defendant was 

sentenced to seven consecutive terms of three to five years for forgery, based on 

misinformation in the pre-sentence report. Because there was no requirement for 

disclosure of the reixirt, it was only afte r eight years of imprisonment tha t the 

defendant learned of the misinformation in the report, and an additional year 

of litigation was required before he was freed.

The arguments against disclosure of pre-sentence reports are based on unsubstanti ated fears, generally that sources of information will dry up if the report 

is made available to the defendant. This argument has been exposed by the ABA 

Advisory Committee in its Commends on the Standards Relating to Sentencing 

Alternatives and Procedures (19 67 ), § 4 .4(b ), p. 219-20, and in the Standard 

itself. The Advisory Committee found tha t the “dry up” argument “falters on 

two grounds”.

“The first is based on the experience of those members of the Committee who 

have lived under a system in which disclosure is routine, and is supplemented 

by the Committee’s examination of sample reports produced under such a system. 

The conclusion is that there is little factual basis for the feai- tha t information 

will become unavailable if the report is disclosed. The quality and value of a 

pre-sentence report will turn to an infinitely greate r extent on the skill of the 

probation service and the availability of adequate supporting facilities than 

it will on whether its contents remain a secret. This view is further supported 

by the experience of the Legal Aid Agency in the Distri ct of Columbia. . . .

“The second reason is more fundamental. One of the basic values underlying 

the manner in which the guilt phase of a criminal case proceeds is that the 

defendant is entitled to know the details of the charges agains t him and is 

entitled to an opportunity to respond. It is believed that this value is subverted 

by a system which does not require disclosure of the information contained in 

the pre-sentence rejxirt.

"Perhaps an example can best make the point. Assume two statutes, one 

defining the offense of robbery and providing a ten-year maximum term and the 

other defining the offense of armed robbery and providing a twenty-year maximum. It would be unthinkable in this country to permit the defendant to be 

convicted of robbery under the first statute and yet sentenced to twenty years 

under the second because of a report submitted to the court by a probation 

officer which disclosed for the first time the fact that the defendant wTas armed. 

Defense of this result on the ground tha t the sources of such information would 

dry up if the defendant were told about it would be dismissed out of hand.

“But contrast a jurisdiction which takes a different approach. Assume here 

tha t the legislature has defined only one offense of robbery and has remitted to 

the sentencing court the job of grading the offender within the range of a twenty 

year maximum term. In this context w’e seem quite prepared to admit the propriety of the same twenty year term on the same ground, namely tha t the
defendant was armed. Yet t his time we make no requirement tha t the defendan t 

be informed that the judge may act on this basis.”

The ABA Advisory Committee also rejected the argument tha t disclosure will 

unduly delay the proceedings. It noted that it is the obligation of the defense 

attorney “to assure that the sentence is based on adequate and accu rate in form ation”, hl. at p. 222. and th at disclosure of the pre-sentencing report facilitates 

this process rath er than delays it. Further, the Advisory Committee said

“Nor can the majority of the Advisory Committee accept the argument that 

non-disclosure should follow because the proceedings will be delayed by disclosure. In the first place, such an argument is a difficult one to make in the 

face of a conclusion that basic fairn ess requires dis closure; i t completely avoids 

the fundamental relevance of justice to the defe ndant as a factor in determ ining 

procedural requirements. In the second place, the majority believes that this too 

is a straw man which both is not likely to find support in the facts of many cases 

and which in most can be avoided by the presentence conference proposed by 

section 4.5, infra.” Ibid.

We fully support the principle of disclosure of presentence reports. As the 

ABA Advisory Committee concluded, “disclosure of the report ought to be required because such a prac tice will increase the fair ness of the system, because 

it will increase the appearance of fairness, and because it will assure a greater 

degree of accuracy in the sentencing d etermination.”

The defense should be given an evidentiary hearing if contested factual issues

arise which are relevant to sentencing

The proposed amendment, 32(c ) (3) (A) affords the defense the opportunity to 

“comment” upon the pre-sentence report. The amendment would more fully 

achieve its purpose of assurin g accuracy of the information in the report by 

specifying that the defense shall have the right to rebut derogatory inform ation, 

including the power to subpeona w itnesses and cross-examine them.

The cases of U.S. v. Weston and Sta te v. Pohlabel, supra pp. 10-12 are examples of the necessity for such safeguards. Another example is Collins v. Buchkoe,

403 F.2d 343 (1974), where the defen dant, convicted of rape, was sentenced to 

life imprisonment based upon the pre-sentence repo rt and a separate confidential 

accusation of rape by ano ther alleged victim which the defendan t denied. The 

defendant was never given the opportunity to rebut the allegations of other 

rapes. The judge said he was

“entirely satisfied that this defendant is possessed of an abnormal sex urge . . . 

that it was uncontrollable . . . that he did far more than that [the convicted 

offense], . . . not only with the girl who is the complainant in this case, but I 

am satisfied with other girls.”

On appeal the Sixth Circuit reversed, holding that the reliab ility and tru thfulness of the information considered in sentencing is a ma tter of fu ndamen tal concern. While recognizing the broad discretion of the sentencing judges as to the 

natur e and source of inform ation utilized by him in sentencing, the court found 

there are nevertheless limitations imposed by the requirements of due process, 

including the opportunity to rebut derogatory information demonstrably relied 

upon by the sentencing judge when such information can in fac t be shown to 

have been materially false. Other cases in the Courts of Appeal for the First, 

Third, Fourth, Fifth, and Ninth Circuits are cited in the decision supporting 

the righ t of defe ndant to a hearing on factual matters in dispute which are 

material to the sentence.

The cases have not required and we do not propose a full scale post conviction 

tri al following strict rules of evidence. See Williams v. New York. 337 U.S. 241 

(1949). What is necessary is tha t the defe ndant have the opportunity to present 

evidence in the manner called for under the circumstances of the case. As revealed 

in the quote from the District Judge in U.S. v. Weston, supra, p. 10, the mere 

denia l by defendant of a charge in a pre-sentence report will not carry much 

weight with the judge. In some cases the defendant can offer direct evidence 

disproving derogatory inform ation. In other situations, where defendan t denies 

a charge, the only method of demonstrating its fals ity is to cross-examine the 

person making the charge.

Issues in the sentencing process collateral to the crime for which defendant 

was committed are very much the same as those present when parole or probation is to be revoked. In each case, the defendant is to be imprisoned at least in 

part for conduct for which he has never been convicted. In such circumstances 

the Supreme Court has enunciated specific procedural riglits required by due
191

process. In Mor rise y v. B re w er 408 U.S. 471 (197 2) , invo lving pa ro le revo ca tio n, 

th e Cou rt h e ld :

“O ur t ask is lim ite d to d ec idin g th e m inim um r eq uir em en ts o f d ue p roc ess . Th ey 

incl ud e

“ (a ) w ri tt en n otice of the cl aim ed viol atio ns o f p arol e,

“ (b ) disc lo su re to p ar ol ee of e vide nc e ag ain st h im,

“ (c) op po rtun ity to be hear d in pe rs on an d pr es en t w itn es se s an d do cu m en ta ry 

evide nc e,

“ (d ) th e ri ght to co nf ro nt an d cr os s ex am in e ad ver se w itn es se s (u nl es s th e 

hea ri ng oflicer specifically fin ds good ca us e fo r no t allo win g co nfr onta tion l

The Su pr em e Cou rt has he ld th a t w he re an addit io nal se nt en ce ma y be im ­

po sed be ca us e of fa ctu al m att ers beyo nd th e sco pe of th e co nv ictio n— such as 

m ul tipl e off enses or se xu al psyc ho pa tholog y-—th e def en dan t is en ti tl ed to an 

ev id en tiar y he arin g. Sp ec ht v. Pat te rs on , 386 U.S. 605 (196 7). The re is li tt le 

re as on to di st in gu is h th is si tu ati on from one in wh ich a defe ndan t is se nt en ce d 

to a max im um te rm in st ea d of rece iving pr obat io n o r a minim um te rm be ca us e of 

in fo rm at io n re lie d up on by th e se nt en cing j ud ge w ithout op po rtunity fo r eff ectiv e 

re b u tt al by th e de fe nd an t. Ye t th e R ul es of Crim in al Pr oc ed ur e, ev en aft er th e 

pr op os ed am en dm en ts, wou ld see m to p er m it im po sitio n of y ears o f im pr ison m en t 

under th e sa m e ci rc um stan ce s as th e m ul tipl e offend er la w s w ithout an y re quir em en t fo r a he arin g.

Ther e is legi slativ e pre ce de nt fo r an evid en tiar y hea ri ng in th e special se ntenc in g prov isions of bo th th e Org an ized Cr im e Con tro l Act of 1970, IS U.S.C. 

§ 35 75 (b ), an d th e Co mpreh en siv e Dru g Ab use Pre ven tion an d C on trol Ac t of 

1970, 21 U.S.C. § 8 49 (b ) which pro vid e:

“I n co nn ec tio n w ith th e hea ri ng [on se nt en ce l, th e defe ndan t an d th e United 

S ta te s sh all be en titled to as si st an ce of coun sel, co mpu lso ry proc es s an d crossexam in at io n of su ch w itn es se s as a ppea r a£ th e h ea ring.”

The se pr ov isions may fa ll sh ort of th e du e proc ess re quir em en ts of M or rise y

v. Bre wer , supra, if th ey w er e in te rp re te d to per m it a co urt to co ns id er in fo rm ation fr om a pe rson wh o av oide d se rv ic e or fa iled to resp on d to a subp oena. 

Nev er th el es s, they in di ca te th e ki nd of prov ision which Rul e 32(c ) shou ld conta in .

The sa m e ar gu m en ts are lik ely to ap pea r ag ai nst an ev id en tiar y he ar in g as 

w er e ad va nc ed ag ai ns t di sc lo su re of th e pr es en te nc e re po rt, in part ic ula r, an 

ad de d re lu ct an ce of in fo rm an ts to pr ov id e in fo rm at io n if th ey are su bj ec t to 

la te r qu es tion in g unde r oa th . B ut perh ap s th is re lu ct an ce ha s it s ad van ta ges as 

well as it s dr aw ba ck s. We are d ea ling w ith in fo rm at io n which ma y send a pe rso n 

to pr ison fo r man y ye ar s. Sh ou ld we not en co ur ag e ca ution on th e p a rt of in ­

fo rm an ts by re m indi ng th em th a t th ey may ha ve to ju sti fy th eir re m ar ks? The 

Su pr em e Cou rt ha s al re ad y he ld th a t th e in fo rm er ’s pr iv ileg e m us t giv e way if 

re ve la tion of hi s id en tity is “e ss en tial to a fa ir det er m in at io n of a ca us e.” 

Rov ia ro v. U.S., 353 U.S. 53 (195 7). An d M or rise y v. Bre wer , 408 U.S. 471 (1972) 

in di ca te s th a t du e proc ess re quir es a n evid en tiar y hea ri ng on dis pu te d fa ct issu es. 

At th e sa m e tim e, th e Cou rt th ere recogn ize d an ex ce pt ion if c onf ro nta tion wo uld 

su bj ec t an in fo rm an t to r is k o f h ar m .

W hat we are ul tim at el y fa ce d w ith is th e prob lem so fa m il ia r in cr im in al pr oce du re of pr ot ec tion of in di vid ual libe rty w ithout un du ly ham pe ring en fo rc em en t 

of th e law . We ar e de al in g w ith th e mos t fu ndam en ta l issu e in mo st cr im in al 

ca ses, libe rty, pr ob at io n, or im pr ison m en t, an d th e le ngt h of im prison men t. 

In di vi du al s may no t be de pr iv ed of th eir libe rty on th e un sw or n testim on y of 

in fo rm an ts wh o know they will ne ve r be ca lle d to a da y of reck on in g be fo re th e 

court s if th e in fo rm at io n the y offer is u n tr u e o r i nac cura te .

PROPOSED CHANGES IN TH E DISCOVERY RULES (RULE 12 .1 AND RUL E 16 )

Th e re la tio ns hi p of p re-tr ial di sc ov er y to in ve st iy ative re so ur ce s

Unp re ce de nted ch an ge s in th e projjosed am en dm en ts wo uld re quir e de fe nd an ts 

to su pp ly in fo rm at io n to th e pr os ec ution in a sco pe beyond th a t fo un d in eit her 

fe der al or st ate pr ac tice an d wo uld re quir e suc h disc ov ery re gar dle ss of w het her 

th e def en dan t ha s so ug ht disc ov ery from th e pros ec ution. Such ch an ge s are 

fo un de d on a mi scon ce ption of th e in ve st ig at iv e re so ur ce s av ai la ble to th e 

pr os ec ution an d defen se.

The prop osed am en dm en ts fo r th e firs t tim e re quir e th e def en dan ts to pr ovide th e go ve rn m en t w ith th e na mes an d ad dr es se s of de fe ns e witn es se s, a re ­

quir em en t of ge ne ra l ap plica bility not foun d in st ate pra ct ic e. In ad ditio n, th e
ri gh t of th e go ve rn m en t to ob tain ph ys ical ev iden ce an d do cu men ts to be pro ­

du ce d a t tr ia l lia s been mad e ab solute. For m er ly , vir tu al ly al l disc ov ery on th e 

p a rt of de fe nda nts has bee n co nd iti on ed on th eir ti rs t re qu es tin g disc ov er y of 

the pr os ec ution. To a la rg e ex tent , br oa d an d unc on di tion al disc ov ery has bee n 

impo sed up on de fe nda nts sup po sedly to ac hiev e "p ari ty ” of disc ov ery be tw ee n 

pr os ec ution an d de fens e. Since the pr os ec ution will now be re qu ired to su pp ly 

de fe nd an ts w ith th e na mes an d ad dr es se s of witn es se s, so th e arg um en t goes, a 

lik e re qu irem en t sh ou ld be imp ose d on d ef en da nt s.

Su ch an ar gu m en t is an ab st ra ct io n divo rced from re al ity. It co mpa res elephan ts an d pea nut s and finds them eq ua l. The go ve rn m en t ha s av ai la ble to it 

th e mos t ex te ns iv e in ve st ig at iv e reso ur ce s im ag in ab le —th e FB I, sp ec ializ ed 

fe de ra l la w enfor ceme nt, ag en cies su ch as th e N ar co tics B ur ea u an d th e In te rna l Re venu e Se rvice, an d al l st ate an d loc al po lic e or ga ni za tion s. Eve ry co nceiva ble ki nd of ex pe rt is av aila bl e from go ve rn m en t agencie s, plus th e service s 

of sjiecial ize d cr im e exper ts an d la bo ra to ry fa ci lities of th e FB I. In ad di tion , 

th e go ve rnmen t ha s av ai la bl e to it the be st pre -t ri al discov ery de vice th a t an y 

la w ye r could ev er wish fo r— th e gra nd ju ry . The U ni te d Sta te s att orn ey may 

call an y po te nt ia l de fens e witn es s be fore th e gra nd ju ry an d qu es tion him a t 

len gth. N ei th er th e w itn es s no r th e defe ndan t is pe rm itte d to ha ve counsel in 

th e ju ry room. A tr an sc ri p t of the testim on y of th e de fens e witn es s is pr ep ar ed 

an d av ai la bl e fo r cros s-ex am ination. On th e oth er ha nd , pros ec ution witn es se s 

need no t be calle d be fore th e gr an d ju ry ; go ve rn m en t in ve st ig at ors of te n ap pea r 

in st ea d an d te st il y to th e re su lts of th eir in ve stig atio n. Ev en if a po te ntial 

pros ec ution witn es s is called, th er e is no re qu irem en t th a t a reco rd of hi s 

testim on y be mad e an d of te n no reco rd is ma de. T hi s pr ac tice pr ev en ts de fe nd ­

an ts fro m us ing the tr an sc ri p t of th e gra nd ju ry proc ee ding s fo r cro ssex am in at io n a t tr ia l.

In contr as t, mos t de fe nda nts ha ve al m os t no in ves tiga tive reso ur ce s av ai la bl e 

to the m. For in di ge nt de fe nd an ts, th e Crim in al Ju sti ce Ac t prov ides on ly $150 

fo r bo th in ves tiga tive an d ex pe rt ass is ta nce w ithout pri or ap pr ov al an d a 

max im um of $300 w ith pri or co ur t ap pr ov al . 18 U.S.C . §3006 A(2) an d (3 ). 

Exp en di tu re s in ex ce ss of $300 can be au th ori ze d on ly fo r serv ice s of “un us ua l 

chara cte r o r d u ra ti o n ” an d thes e re quir e th e ad ditio nal ap pr ov al of th e ch ie f 

ju dg e of th e Circu it. App ro va ls of am ou nt s in ex cess of $300 are ra re in pr ac tice .

Si m ila rly, de fe nd an ts of mo dest, lim ited mea ns ge ne ra lly ha ve no fu nds avail ­

ab le fo r in ve stig atio n, th eir reso urce s hav in g l>een ex ha us te d in re ta in in g c ou nsel. It is on ly th e w ea lth y de fe nd an t or th e ra re ca se of a def en dan t who a ttr acts wides pr ea d pu blic sy m pa th y an d su pp or t wh o ma y ac tu ally ha ve fu nd s 

to co nd uc t an ad eq uat e inve stig atio n, and even thes e we ll-heele d def en dan ts 

ca nn ot beg in to mat ch th e reso urce s of th e go ve rn m en t. Ev en whe n in ves tigat ors 

ar e em plo yed by de fe nd an ts , or th e att orn ey hi m se lf in ve stig at es , th eir effectiv en ess is m ar ke dl y less th an th a t of go ve rn m en t co un te rp ar ts . Rec ords of 

bu sin esses, ba nk s an d m yri ad go ve rn m en t ag en cies ar e opened to th e pros ec ution bu t are re gula rl y de nied de fens e in ve st ig at or s. Many witn es se s feel a mu ch 

gre ate r comp ulsio n to ta lk when a law en fo rc em en t officer fla shes hi s ba dg e 

th an w hen an i nvest ig ato r f or a p ri vat e part y seek s o u t in fo rm at io n.

Tile issu e th en is how th is im ba lanc e of reso ur ce s can be co rrec ted. In th e 

cr im in al ru le s we are not de aling w ith pri vat e part ie s but w ith th e pu blic 

in te re st in ensu ri ng th a t ju st ic e is ac hiev ed . Th e oft-rep ea te d ad mon iti on "t he 

re sp on sibi lity of a pu blic pr os ec ut or differ s from th a t of th e us ua l ad voca te ; liis 

dut y is to se ek ju st ic e, no t merely to co nv ict” (A BA Cod e of Pro fe ss io na l Resp on sibilit y, EC 7-13 ) is ho no red in th e br ea ch by th e prop osed am en dm en ts 

if the pr ic e th e defe ndan t m us t pa y is th a t he m ust su pp ly th e pr os ec ution 

w ith in fo rm at io n w hich may inc ri m in at e him. see in fr a.

The re is also an in te ns el y pr ac tica l re as on fo r no t su pp ly ing na mes of de fens e 

w itn es se s which is il lu st ra te d by re port s from att orn eys a s to police in ves tigato ry te ch ni qu es in th e sta te s re qu ir in g di sc lo su re of ali bi witn es ses. A polic e 

officer ap pr oa ch es an al ib i witn es s an d th e follo wing dialog ue o ccu rs :

P olice ma n. “W e ha ve Jo hn Jo ne s on a ch ar ge of robb ery on Ju ne 25. He 

sa ys yo u were w ith h im t h a t ni gh t.”

Ali bi Wit n ess. “Oh no, I ne ve r sa w him th a t nig ht.”

Eve n th e la w yer tr ain ed in se m an tic s m ig ht res po nd as th e witn es s did, sin ce 

th e witn es s vie ws an ackn ow led ge men t of a ss oc ia tion with def en dan t as im pl ic at ­

ing th e w itn es s in th e crim e. Is th is no t th e n atu ra l re ac tion of th e av er ag e person? L at er , a t tr ia l, a ft e r th e ali bi witn es s testifies th a t he was w ith def en dan t 

fa r from th e sce ne of th e crime , th e pr os ec ut io n ca lls th e polic e officer wh o is
as ke d of hi s co nv er sa tio n w ith th e al ib i w itn es s an d an sw er s (t r u th fu ll y , th a t 

th e w itn es s tol d hi m he had not se en th e def en dan t on th e nig ht of th e crim e. 

W hat th is il lu st ra te s, of co ur se , is th a t po lic e in ves ti gat io n is by it s n atu re co er ­

cive and th re ate n in g to th e av er ag e ci tiz en . R eq ui ri ng th e de fe ns e to ex po se ea ch 

of it s w itn es se s in cr ea se s th e po ss ib ility th a t ju st ic e will be di st or te d.

T he Adv iso ry Com m itt ee No tes to th e prop os ed am en dm en ts ac kn ow led ge s th a t 

“t h e go ve rn m en t no rm al ly h as re so ur ce s ad eq uat e to se cu re mu ch of th e ev iden ce 

fo r tr ia l’’, bu t finds th a t un sp ecified si tu ati o n s m ig ht re qu ir e di sc lo su re by de fe nd ­

a n ts “in th e in te re st of ef fe cti ve and fa ir cr im in al ju st ic e ad m in is tr ati o n ”. In 

ess ence, th e Ad vis or y Co m m itt ee fo un d di sc lo su re to be ne ce ss ar y in onl y ex ce pti on al ca se s bu t pr om ul ga te d a ru le of gen er al ap pl ic ab ility. A mu ch mo re care ­

fu l ap pr oa ch , ta ilor ed to th e ac tu al ne ed s of th e governm ent, is ne ce ss ar y p a rti cu la rl y w he re se riou s qu es tion s a re ra is ed o f in va si on of th e co nst it uti onal 

ri g h ts o f de fe nda nt s un de r th e p ro po se d am en dm en ts.

Th e di sc ov ery ru le s as am en de d fa ll sh or t of th e m in im um st a n d a rd s of th e

A m er ic an B a r A ss oc ia tio n w ith re sp ec t to di sc lo su re by th e Go ve rn men t

(r u le 1 6 ( a ) )

A. L im it at io ns im po sed by th e Jc nck s Act

To a su b st an ti al ex te nt , th e d ep art u re s in th e am en dm en ts from th e ABA m in imum st a n d a rd s are re qu ir ed by th e li m it at io ns on p re -t ri al di sc lo su re of st a te ­

m en ts of g ov er nm en t w itn es se s fo un d in th e Je uck s Act . 18 U.S.C.A. § 3 50 0 (S up p. 

1 0 7 3). T he in te rr ela ti o n sh ip be tw ee n th e Je nck s Act an d oth er p re -t ri al dis co ve ry 

re qu ir es th a t Co ng res s am en d th e Je n ck s Ac t to co or di na te w ith th e pr op os ed 

am en dm en ts to th e C rim in al Ru les .

The Je ncks Ac t pr oh ib its co mpu lso ry di sc lo su re of st ate m en ts of pr os pe ct iv e 

go ve rn m en t w itn es se s or th e ir gra nd ju ry te stim on y u nti l a fte r th e w itn es s ha s 

te st ifie d on di re ct ex am in at io n a t tr ia l. W he n th e st ate m en t is de liv er ed a ft e r th e 

d ir ect ex am in at io n, th e de fe ns e m us t be gi ve n tim e to st ud y it an d to pre par e 

cr os s ex am in at io n ba se d on th e st at em en t. If th e st ate m en t is in an y wa y le ng th y, 

th is may of te n en ta il a del ay of se ve ra l ho ur s, in wh ich th e ju ry , th e judg e, 

an d th e pr os ec ut io n are im mo bi liz ed . Th e re su ltin g de la ys ha ve ca us ed ma ny 

U.S . A ttor ne ys to vol un ta ri ly tu rn ov er Je nc ks st ate m en ts p ri o r to th e be gi nn in g 

of tr ia l. How ev er, som e U.S. A ttor ne ys st il l w ith ho ld th em u n ti l a ft e r dir ec t 

ex am in at io n.

The A m er ic an B a r Ass oc ia tio n st an d ard s pr ov id e fo r p re tr ia l di sc ov er y of th e 

“r ele v an t w ri tt en or re po rt ed st ate m en ts ” of p er so ns wh om th e pro se cu tin g a tt o rney in te nd s to ca ll as w itn es se s a t th e hea ri ng or tr ia l. Li ke wise , a gra nd ju ry 

m in ut es c on ta in in g testim on y of s uc h pe rs on s is al so su bj ec t to pre -t ri al dis co ve ry. 

AB A S ta nd ar ds . 88 2 . 1 ( a ) ( 1 ) an d (i i i ).

T he pri m ar y pu rp os e of th e Je nck s Ac t, as re ve al ed by th e le gi sl at iv e hi stor y. 

S. Rep. No. 98 1 on S. 23 77, 85 th Con g., 1s t Sess. (1 9 5 7 ), w as to pre ven t wh oles ale 

fis hing ex pe di tion s in to th e pr os ec ution ’s files, a re su lt Co ng res s th ou gh t m ig ht 

fo llo w fr om th e decis ion of th e Su pr em e C ou rt in Je n ck s v. U.S., 35 3 U.S. 65 7 

(1 9 5 7 ). R eq ui ri ng p re -t ri al di sc lo su re of “J en ck s Ac t st ate m en ts ” (o nl y su bst an ­

ti all y ve rb at im st at em en ts or w ri tt en st ate m en ts of th e w it n ess ) do es no t in an y 

way in fr in ge upo n th is ob je ct iv e of Co ng res s. In ad di tion . Rul e 1 6 (a ) (2 ) un de r 

th e prop os ed am en dm en ts w ou ld sp ec ifi ca lly p ro vi de a g ain st d isc ov ery of “r ep or ts , 

m em or an da , or ot he r in te rn al go ve rn m en t do cu m en ts m ad e by th e at to rn ey fo r 

th e go ve rn m en t or oth er go ve rn m en t ag en ts in co nn ec tio n w ith th e in ves tiga tion 

or pr os ec ut io n of th e ca se .”

Sup pr es sion of st at em en ts of go ve rn m en t w itn es se s h as so m et im es bee n su ppor te d by a de si re to pro te ct th e w itn es se s fro m co erc ion or in tim id at io n. Sin ce 

th e am en dm en ts call fo r th e go ve rn m en t to re ve al th e na m es a nd ad dr es se s of it s 

w itn es se s (R u le s 1 6 ( a ) ( 1 ) ( D ) ) . su pp re ss io n of st at em en ts of w itn es se s no 

lo ng er wi ll se rv e to pr ot ec t th e ir id en ti ty . I f th ere is a re as on ab le po ss ib ility of 

su ch coerc ion , th e go ve rn m en t m ay ob ta in re li ef from di sc ov er y und er am en de d 

R ul e 1 6 ( d ) ( 1 ) . Si m ila rly, it h as be en as se rt ed th a t in some ca se s w he re th e 

go ve rn m en t m us t ca ll a ho st ile w itn es s, pre -t ri al di sc lo su re of hi s st at em en t ma y 

m ak e it easi er fo r th e w itn es s to ta il o r his te st im on y so th a t it wi ll ass is t th e 

d efe n d an t w ith ou t di re ct ly c ontr ad ic ti ng a n earl ie r st at em en t. Su ch ca se s are r ar e, 

and up on a re as on ab le sh ow in g th e co u rt ma y de ny di sc ov er y u n d er am en de d 

R ul e 1 6 (d ) ( 1 ) .

In sum , an am en dm en t of th e Je nck s A ct to p erm it p re -t ri al di sc ov er y of su bst a n ti a ll y ve rb at im st at em en ts of pr os pe ct iv e pr os ec ut io n w itn es se s wo uld br in g 

th e pr op os ed am en de d ru le s in to co nf or m ity w ith th e AB A m in im um st an d ard s
and would not impinge upon the protection which the Jencks Act sought to give to 

prose cutorial intern al tiles.

B. The affirmative duty of the United Sta te atto rney to obtain information

subject to discovery

Rule 16 also fails to meet the ABA standar ds with respect to disclosure by the 

government of prio r criminal records of the defe ndant and prospective government witnesses. The principal shortcoming is the failure to require the prosecutor 

to tak e reasonable steps to obtain such information.

The ABA Standards, Section 2.1(d), require the prosecutor to disclose— 

•‘material and inform ation in the possession or control of members of his staff 

and of any othe rs who have participated in the investigation or evaluatio n 

of the case and who eith er regularly report or with reference to the particula r case have reported to his office.”

Amended Rules 16(a )(1) (A ) and (II) contain substan tially equivalent 

language requiring disclosure of state ments of the defendant and reports of 

physical or mental exam inations or scientific experiments. These rules use the 

language retjuiring disclosure of information “within the possession, custody or 

com ml of the government, the existence of which is known, or by the exercise 

of due diligence may become known to the attorney for the government.” However. Rules 16(a) (1) (B) and (B) use different language when dealing w ith the 

prio r felony convictions of witnesses or prio r criminal record of the defendant. 

Rule 16( a) (1 )( B ) requires discovery of the defend ant’s prior criminal record 

“as is then available to the attorney for the federal government”. Rule 16(a) (1) 

(B) requires discovery of prio r felony convictions of prosecution witnesses 

“which is within the knowledge of the atto rne y for the government”. The .Advisory Committee notes do not explain the different la nguage between subsections 

(Bi and (IS) and subsections (A) and (I>). The result of the difference is 

significant, however.

The language of subsections (B) and (E) apparently would not require the 

U.S. Attorneys to request a full report of prior criminal convictions from the 

FBI. although this is readily available with a minimum of effort. It is virtually 

impossible for defense counsel to obtain information as to prior convictions, 

particu larly as to prosecution witnesses, except from the prosecution. The prior 

conviction may have occurred in any of the jurisdicti ons of the United States. 

We have been informed by the FBI that they provide governmental agencies 

with criminal records of 40,000 persons daily, but will not make such info rmation available to defense counsel. We see no reason why the rule should not 

require the government to use “exercise of due diligence” to discover any prior 

convictions of the defendant or a witness.

Furthermore, we believe tha t the discovery of criminal activity by prosecution 

witnesses should not be limited to prio r convictions for felonies, but should include all convictions, including misdemeanors. In Davis v. Alaska, 94 S.Ct. 1105 <1974), the Supreme Court held that a defe ndant may have a constitutional 

right under the Sixth Amendment’s c onfrontation clause to impeach a witness 

by evidence of prior conviction, even a juvenile offense, if, under the fac ts of a 

case, the criminal conduct of a witness would indicate a propensity to cooperate 

with the prosecution in exchange for leniency or a desire to avoid suspicion. The 

defe ndant then has a right to introduce evidence of the existence of such conviction. This right is meaningless, however, unless the inform ation is available 

to the defendant. Often, the only source of such information is the government 

itself. Accordingly, the word “felony” should be deleted from Rule 16(a) (1) (E ).

C. Failure to require disclosure of exculpatory material

Section 2.1(c) of the ABA stan dards requires the prosecution to “disclose to 

defense counsel any materia l or information within his possession or control 

which tends to nega te the guilt of the accused ns to the offense charged or would 

tend to reduce his punishment therefor.” The proposed amendments to the 

Criminal Rules do not contain any such provision. The Advisory Committee 

Notes to Rule 16 s tate t ha t the committee “decided not to codify the Brad y rule” (Brady v. Maryland, 373 U.S. 83 (1963)). Codification is necessary, however, 

because there is no clea r cut guideline as to what effort, if any. the prosecutor 

must make to obtain exculpatory information not contained in his own files. At 

present, there is no clea r cut requirement on the pa rt of prosecutors to obtain 

exculpatory material in the hands of the FBI, police, or other investigatoryagencies. even when available on request. See cases summarized in Hall. Kami- sar, LaFave if Israel. Modern Criminal Procedure (1969) 1069-66. Prosecutors
195

often make no attempt to comply with the Brady rule on exculpatory material 

beyond examining the ir personal files. Information which might establish in­ nocence might thus be denied to the court, resu lting in serious miscarriag es of 

justice. Cf. Giles v. Maryland, 386 U.S. 66 (1967). To clarify the obligation of the prosecutor in such cases, an additional sub­ section F should be added to proposed Rule 16(a )(1) , as follows: "( F) Upon request of a defendant, the government shall disclose to the de­ fendan t any material or information which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment the refor which is within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become 

known to the attorney for th e government.’’

The provisions for compulsory unconditional disclosure by defen dants (rules 12.1(c) and lti(b) ) impinge upon rights protected under the fifth and six th

Amendm ents The provisions for compulsory discovery by defe ndants raise grave questions of constitu tionality under the Fifth Amendment privilege a gainst self-incrimina­ tion and the Sixtli Amendment right of a defendant to call witnesses in his own behalf. Under the rules presently in effect, the government has no unconditional right of discovery against a defendant, altho ugh the defe ndant can be compelled 

to give certain "non-testimonial assista nce ” to the government, such as hand­ writing samples, voice samples, fingerprints, and appearance in line-ups. Other­ wise, discovery by the government against the defe ndant presently comes about on}y if the defendant requests discovery from the government. Even in such cases, discovery is limited to eith er medical or scientific reports or other papers or physical objects which the defe ndant inten ds to produce at the trial. A. Discovery by defen dants and the privilege against self-incrim ination.— Even the limited conditional discovery presently available aga inst defendan ts raise s sub stantial constitutional questions. Justices Black and Douglas dissented in 1966 from the promulgation of the discovery rules presently in effect, in part because of their concern over the constitutional questions under the Fif th Amendment. 39 F.It.D. 272, 276. Professor Charles Alan Wright, himself a member of the Standing Committee on Rules of Practice and Procedure, has described the cur ren t limited reciprocal rule as operating “near the border of 

the Fifth Amendment”. 1 Wright, Federal Practice and Procedure (Criminal) § 255. Wright concluded that it would have been extrem ely difficult to reconcile unconditional discovery by the government with the privilege again st selfincrimination. Wright, supra § 256. The amendments to the rules would require precisely such unconditional discovery by defendants. The amended Rule 16(b) would require the defe ndant 

to disclose to the government before trial (1) any writing or other tangible object which the defend ant inten ds to 

introduce a t tria l, (2) the name s and addresses of witnesses the defe ndant intends to call at the trial (also required by Rule 12.1(b) in case of alibi defense), and (3) any results or repo rts of physical or recital exam inations and scientific tests which the defendan t intends to introduce kf> evidence at the trial or which were prep ared by a witness whom the defe ndant intends to call at the trial. Under the proposed amendments, the government has an unconditional right to such information even if th e de fendant has never requested any discovery from 

the government. The argu men t that such disclosure may be requ ired without violating the privilege aga inst self-incrim ination rests on the notion that the defe ndant will be called upon to disclose only that which he will disclose in any case at the 

tria l. See Williams v. Florida, 399 U.S. 78 (1970). Professor Wright explains the 

weakness of this argument as follo ws: “But this appealing argu men t may not be a complete answer. Defenda nt will shortly reveal those things he inten ds to produce only if the government has first made a case against him sufficient to survive a motion for directed verdict. Unless the government can prove a case sufficient to go to the jury , a defe ndant need prove nothing. There is nothing in Rule 16, as amended, which prevents the government from using material which it ha s obtained by discovery as p art of its own ease-in-chief and thus it may be th at there will be cases where the government is able to make a prima facia case only with the aid of evidence it has 

obtained by discovery.” (Wright, supra, § 256)
A study in the H arv ard Law Review reached the conclusion th at “the policies 

adheren t in the Fif th Amendment privilege against self-incrimination indic ate 

that the prosecutorial discovery provisions of th e proposed amendment to Rule 16 

are unconstitutional and should be rejected.” Note, Prosecutorial Discovery under

Proposed Rule 16, 85 Harv. L. Rev. 994 (1972).

Williams v. Florida, supra, is often cited as autho rity for unconditional pretrial discovery aga inst d efendants of anyth ing the defe ndant will reveal at trial. 

See, e.g., Wriyht. supra, S 256 (Supp. 1973) ; ABA Stan dard s, Supp. 1970, pp. 4-6. 

However, the Williasm case dealt only with a limited notice-of-alibi situation, 

not generally discovery aga inst defendants.1

 The pre-trial revelation of an alibi 

or alibi witness will be much less likely to risk incrimination of a defendan t 

than the general discovery required by the proposed amendments to Rule 16(b).

The distinction between discovery of non-incriminating defenses and general 

discovery aga inst defendants, in light of the Fifth Amendment, was highlighted 

by two decisions of the California Supreme Court. In the widely-cited Jones v. 

Superior Court, 58 Cal. 2d 56, 372 P. 2d 919, 22 Cal. Rptr. 879 (1962), the Californ ia Supreme Court required disclosure by the defendan ts of information 

which related to the defense of impotency in a rape case. In a later case, the 

same court limited the holding of the Jones case, noting tha t details of the 

impotency defense could not possibly incriminate the defendant. Prudhomme \.

Superior Court. 2 Cal. 3d 320, 466 P. 2d 673, 85 Cal. Rptr. 129, 133 (1970). 

Unconditional discovery of witnesses and documents to be produced at t ria l by a 

defendan t was rejected, the court cogently explaining the reasons as follows 

(2 Cal. 3.1 at 326-27, 85 Cal. Rptr. a t 13.3) :

“Thus, if we analyze Jones in the light of the policy considerations discussed in 

Schader, it is app arent that the principal element in determ ining whether a 

par ticula r demand for discovery should be allowed is not simply whether the 

information sought pertain s to an ‘affirmative defense,’ or whethe r defendant 

intends to introduce or rely upon the evidence at trial, but whether disclosure 

thereof conceivably might lighten the prosecution’s burden of proving its case 

in chief. Although the prosecution should not he completely barred from pretrial 

discovery, defendant must he given the same right as an ordinary witness to 

show that, disclosure of p articu lar inform ation could incriminate him. . . .”

“For example, if a defendan t in a murder case intended to call witness A to 

testify that defen dant killed in self-defense, pre tria l disclosure of that information could provide the prosecution with its sole eyewitness to defend ant’s 

homicide. Similarly, consider the effect of disclosing the name or expected 

testimony of witness B, whom defendant inten ds to call only as a ‘las t res ort ’ to 

testify tha t defe ndant only committed a lesser-included offense. . . .”

The proposed amendment to Rule 16(b) sweeps aside this fundamental distinction as to whether the defendan t’s p retrial disclosure will assist the prosecution in presenting its case in chief. Although the Supreme Court in approving 

rules of procedure presumably does not intend to offer any views as to constitutional issues which may be raised by application of the rules, Rule 16(h) is 

likely to be regarded by the lower courts as an indication that a lite ral enforcement is constitutional. There is, in fact, some supp ort for an inference of 

constitutionality inherent in promulgation of a rule of procedure. See Hanna v. 

Plumer, 380 U.S. 460. 471 (1965). Not surprisingly, the District Courts a re likely 

to rega rd the rules as carryin g “a strong presumption” of constitutionality. See 

Helms v. Richmond-Petersbury Turnpike Authority. 52 F.R.D. 530, 531 (E.D.Va. 

1971). The proposed Rule 16(b) does not even contain the cave at found in each 

section of the ABA Standards relating to discovery against defendants—“subject 

to constitutional limitations”. Such a caveat should he included in any rule concerning disclosure by defendants which Congress approves.

R. The sixth amendment riyht of defendants to present witnesses in their

own behalf would he infrinyed by the denial of riyht to call witnesses and present

physical and documentary evidence if a defendant declined to comply with compulsory discovery requirements (rules 12.1(e) and 16 (d )).—The Sixth amendment to the Constitution guarantees defe ndants the right “to have compulsory

1

 T he m aj or ity op inion in W ill iams wo uld sa nc tion th e di sc losu re re qu irem en ts of Ru le 

12.1 (b ) in no tic e of a lib i si tu at io ns. Th e co ur t ex pr es sly le ft o pen th e qu es tio n as to w he th er 

a co ur t may re fu se to allow defense alib i w itne ss es to te sti fy if th e de fe nd an t de clines to 

com ply wi th a discov ery or de r. 399 U.S . a t 83, fn. 14. F o r th e re as on s no ted abo ve, we 

believe Ru le 12 .1 (b ) re quir in g disc losu re of th e na mes of alibi w itne ss es is un wise as a 

m att er of policy. In ad di tion , we find th e di ss en ti ng op in io ns in th e W illiam s cas e. 399 

T'.S. at 10(1 to be mo re pe rs ua si ve in th ei r an al ysi s of th e F if th Am en dm en t’s ap pl ic at io n to 

discov ery of w itne ss es in al ib i cases.
197

proc ess fo r ob ta in in g witn es se s in his fa vor” . T hi s ri ght to co mpu lsory proc ess 

includ es th e ri ght to ac tu al ly ha ve th e w itn es s te st if y at tr ia l. In W as hi ng to n v. 

Te xa s, 388 U.S. 14 (1967), th e Su pr em e C ou rt held (388 U.S. a t 19) :

“T he ri g h t to off er the testim on y of witn es se s, and to comp el th eir a tten da nc e, 

if ne ce ss ary, is in pl ai n te rm s th e ri g h t to pre se nt a de fens e, th e ri ght to p re se nt 

tlie defe ndant’s ve rsion of th e fa ct s as well as th e pro se cu tio n’s to tlie ju ry so it 

ma y de cide whe re tli e tr u th lies. Ju s t as th e accu sed has tlie ri ght to co nf ro nt 

tli e pr os ec ut io n’s witn es se s fo r th e pu rp os e of ch alle ng in g th eir testim on y, he 

ha s tli e ri gh t to pr es en t his own w itn es se s to es ta bl is h a de fens e, th is ri ght is a 

fu nda m en ta l elem en t o f d ue pro ce ss of l aw .”

The a m en dm en t to Rule 10 (d ) wo uld im ping e on th is r ig ht to p re se nt witn esses. 

If tli e de fe nd an t re fu se s to su bm it a list of w itn es se s pri or to tr ia l, he may be 

de nied tli e ri ght to ca ll w itn es se s a t th e tr ia l. If he re fu se s to ass is t th e pros ec utio n by fu rn is hin g it wi th do cu men ts an d ph ys ic al evide nc y pri or to tr ia l, he m ay

J be barr ed fro m offerin g su ch ite m s as ev iden ce a t th e tr ia l. I t is no t enou gh to

say th e choic e is th a t of t he def en dan t sin ce he ma y ca ll th e witn es s or in trod uc e 

th e ev iden ce i f he mak es pre -t ri al di sc lo su re to th e pr os ec ution. Tlie Con stitut io n

- co nt ai ns no pr ov ision affo rd ing a ri ght to ca ll w itn es se s only if th e def en da nt

* co op er ates w ith th e pros ec ution, even to th e po in t of in cr im in at in g himself. Th e

ri ght to a de fe ns e is fu nda m en ta l to du e pr oc es s an d may no t be so cond ition ed . 

In Cha mbe rs v. Miss iss ippi, 93 S.C t. 1038 (19 73) th e Cou rt foun d th is ri ght so 

fu nd am en ta l as to st ri ke down on const itutional gr ou nd s a long es ta bl ishe d rule 

of ev iden ce reco gn ized in mos t st ate s. An ex ce ption to th e hea rs ay ru le is 

rec og nize d fo r “s ta te m en ts again st in te re st” , su bj ec t to tw o we ll-rec ogniz ed 

lim it at io ns— th e d ec la ra nt m us t be unav ai la ble fo r tr ia l an d th e s ta te m en t ca nn ot 

be sol ely again st pe na l in te re st . In Ch am be rs, ex clus ion of a hears ay st ate m ent 

was he ld un co ns titu tional as an in fr in gem en t on th e ri ght to pre se nt w itn es se s 

in de fens e, even thou gh th e st at em ent w as again st pe na l in te re st an d the

dec la ra nt ha d ac tu ally testi fie d a t tr ia l.

Th e Su pr em e C ou rt has ne ve r de cid ed w het her a co urt may re fu se to allow 

de fens e w itn es se s to te st if y if th e defe ndan t de clines to comp ly w ith a discov ery 

or de r. Ev en in th e lim ite d co nt ex t of a no tic e-of -alib i rule, th e Su prem e Cou rt 

ex pr es slv re se rv ed ju dg m en t on th e qu es tion in W illiam s v. Fl or id a, 399 U.S. 78, 

83, fn. 14 (197 0).

Th e C ou rt now see ms to ha ve offered in Rule 16 (d ) a sub sile nt io ad vi so ry 

opini on , in co nt ra ve nt io n of i ts ow n long rec og nized pr oh ib itio n on such ad vi so ry 

opini on s. Th e pr op er ve hicle fo r re so lu tion of such issu es is an actu al ca se or 

co nt ro ve rsy as prov id ed in A rtic le I I I of the C on stitut io n, w ith adequate oppo rtuni ty fo r br iefs, ar gu m en t, an d fu ll co ns id er at oi n by th e co ur t. The fe ars of 

Mr. Ju st ic e Black as to misu se of th e ru le -m ak in g po wer appear to ha ve been 

well ta ke n. See di ss en t of Mr. Ju sti ce Bla ck to th e 1966 am en dm en ts to th e 

Fed er al Ru les of Crim in al Pr oc ed ur e, 39 F.R.D. 272 (196 6).

Mr. Smith. Professor Lesnick.

Prof. Lesnick. My name is Howard Lesnick. T am a professor of 

law at the University of Pennsylvania, where I have been a member 

o f the faculty since 1960. Before that T served as a law clerk to Mr. 

t) Justice John M. ITarlan of the Supreme Court of the United States.

I teach a course and a seminar on the legal profession. and have been 

a member of the Board of Trustees of the Center for Law and Social

Policy, since its founding 5 years ago.

* I guess T am speaking to you under a triple inhibition. First, T

realize that T am the last of a long list of witnesses. Second, I am here 

to change the subject, as it were, from the criminal rules amendments 

specifically, to the rulemaking process itself.

Third, along those lines, I could not help noticing Mr. Dennis’ 

reference earlier today to at least one of the issues, which T want to 

raise, as a law school question; being somebody who works at a law 

school, perhaps l am a little sensitive about that. And I guess I am here 

to try to persuade you to tran sfer the issue from one that is talked 

about in the building where I work to one tha t is talked about in the 

(1 -6 23— 75 - 14
198

bu ild ing where you work. In oth er words, I think it is a question for 

Congres s to consider primarily.

1 think th at the core of the issue is this . Th e writin g of rules is the 

wr iting of legislation . Wh en I say th at 1 do not in any way mean to 

suggest that it is inap prop ria te f or courts to make rules, bu t to speak 

to the p rocedu re th at is used in connection with it. It is th e writin g o f 

legisla tion, because you are dea ling with general rules for the futur e, 

and because as we have seen tod ay and in o ther places, you are dealin g 

not sim ply with con side rations of jud icial ad mi nis tra tio n, calen dar 

congestion, the trial process and the like, bu t a lot of hotly dis puted 

issues of social policy.

And I think , to Speak very gen erally, the model of the way a cou rt 

operate s, and the model of the way a leg islatu re opera tes are very 

differen t. C ourts are supposed to be in dep end ent an d i ns ul ated ; legislatur es a re supposed to be accountab le to the public and open. And here 

we have a procedure which is a legisla tive procedure devised and 

carried out by judges. And it fal ls betw een two stools. I suppose, essen tially, t ha t is o ur position. And ne ith er as the model of the a dj ud icatio n of cases, which, of course, is the jud icial model, no r as a 

leg isla tive model, dot's it, in our judgme nt, pas s muster.

And when I say th at , we are not here to say th at it is an ind efe nsible. outrageou s procedure. It is not. It has been worked out responsibly over the years. An d we t hi nk th at the experience th at the committee has had in the case of the rules of evidence, and now in the 

case of the crim inal rules, has dem onstrate d serio us deficiencies in the 

rul em aking procedure, and perha ps more im po rta nt, demo nstrated 

really enormou s g aps in public k nowledg e and in congressional kno wledge abo ut the way th at procedure o pera tes. The legislatu re, as everyone knows, alm ost 20 yea rs ago aut horized t he Judic ial Conference to 

ca rry on a c ontinuous stu dy of the rul em aking process and recom mend 

rules to the cou rt. It did not at all tim e, of course, pres crib e th e procedures t o be followed. W e now have ha d two experiences —we are in th e 

proce ss of a second—in the leg islatu re which have had enormo usly 

salutary effects. Bu t t he y also ca rry within them the seeds of d ev ita lizin g the rulem aking process itself. Th e Ad visory Com mittee on the 

Crimina l Rid es has indefinitely postpon ed th e deadlin e for comm ents 

on the h abeas corpus rule, a preli mi nary d ra ft of which came out over 

a year ago, aw aitin g the legisla tive reac tion to these rules. And it is 

obvious, I suppose, to everyone th at 90 day s is sim ply an ina deq uat e 

period of tim e to conside r seriously in th e leg islatu re proposed rules. 

At the same time , if C ongress is routi nely going to do w hat it did thi s 

time, forestall them fo r a yea r, or do w ha t it did in th e case of the rules 

of evidence and tak e over the job its elf it is perfe ctly clear th at the 

rul em aking proce ss is going to be sap ped of all its v ita lity.

So we are at an ideal point, I sub mit, to look at the process itself, 

to see whethe r ref orms are necessary , to devise an ap prop ria te m anner 

of ma kin g the reform s, and the n to let the rulem aking proce ss go on 

as befor e; th at is. witho ut serious con tinu ed congressional ove rsig ht.

Xow, in o ur judgme nt, ther e a re f ou r areas of the rulem aking process 

which require serio us examin atio n and ret hin kin g.. And we are here 

in par t today to urge this com mittee in some ap prop ria te wav to examine the rul em aking process and to con sider these questions.
199

The four areas that we have perceived—and I want to emphasize 

seriously tha t these are tentative perceptions on our part, and even 

more tentative proposals for reform, because so little is known about 

the process, and what is known is so informally known—but the four 

areas which we have identified on the basis of what we do know are, 

first, the hick of a sufficiently widespread input by all segments of the 

legal profession, and by the*public, into the rule drafting process.

Belated to that, the relative unrepresentativeness of the Advisory 

Committee, and the excessive centralization of the appointing authority under it. The third is the inappropriateness, as we see it, of utilization of the 

J Supreme Court as the official promulgator of the rules.

And the fourth is the present lack of a meaningful mode of congressional reviews which does not undercut the rulemaking process itself. 

1 And if I can very briefly speak to each of these, I have a statement

which was submitted which develops these more fully.

Mr. Smitti. And that will be made part of the record.

Prof. Lesnick. Thank you.

As I said, Congress, when it delegated to the Judicial Conference 

the continuous oversight and ru ledrafting and recommendation function. did not address the question of procedure. Nor has the conference itself seen fit to publish rules of procedure. Wh at we know about 

the rulemaking procedures we know from articles and speeches of 

judges who have been active in it. or. by, for example, a statement like 

that submitted to the subcommittee by Judge Lum bard this morning.

Were the conference to publish rules of procedure, it would have two 

useful consequences. Firs t of all, it would enhance public awareness of 

the procedure and participat ion. More important, it would require the 

conference to face specifically the question whether its procedures are 

presently adequate to obtain a broad range of public input. It is perfectly clear th at they were intended to do that. There are references by 

judges and others, some of which I cited.

But I think it is also clear tha t the rules of evidence hearings disclosed important insufficiencies. Five thousand copies of the preliminary dra ft, of course, is an impressive figure. I t is symptomatic that I 

do not. know and I do not know of anyone outside the process who 

knows just what that mailing list is. And I think it is clearly not 

enough simply to mail out copies to bar associations, judges, and to 

j publish it in advance sheets. No attempt is made to seek out actively, so

far as I know, comments of groups who may have a vital interest in the 

area. There is no attem pt made to notify lay groups at all, even though 

they may have a vital interest in certain areas. And the reaction of the 

> medical community 2 veal's ago to the proposals dealing with doctorpatient privilege are an example of that.

No public hearings are held. This was proposed quite some time ago 

bv Professor Moore of Yale who was involved in the rulemaking process for many years. And I thin k public hearings, as this hearing, are 

enormously important. There is just a world of difference between 

having a committee member or reporter or whoever, go through a pile 

of letters, and having the actual members of the committee sit there, 

and hear live bodies make a submission. And I need not make that 

point in anv detail to this subcommittee. Anvone who has served on or 

appeared before such a committee knows that.
209

In addition to that, often major changes are made afte r the final 

tentative d raft is circulated. And again, consider the legislative model: 

this Congress, of course, meets in executive session, and Congressmen 

meet privately. But nearly every step in the legislative process is published—subcommittee report, committee report, debate, votes, every 

change can be identified, and in most cases identified very quickly. 

And no disclosure is made within the advisory committee, within the 

standing committee, or within the judicial conference. An important 

question is whether there is any division. We have learned either from 

Justice Douglas once or twice, or from testimony before Congress, that 

there were hotly divided issues. And a number of people have testified today that there was resubmission, revision of thinking. But that 

was never flagged. And again, I think any lawyer knows tha t it is the 

identification of controversy that tends to bring interested parties 

into the arena. If anything, the rulemaking process discourages that. 

It engenders an air of blandness from the very beginning the advisory 

committee notes, they will refer to a dispute, but say simply we have 

adopted another view. But the general impression is one of simply 

perfecting the workings of a basically mechanical system, and it tends 

to engender the idea that there is not. very much going on that is controversial. And indeed, as we all know, there is a lot going on that is 

controversial.

Now, related to that is the composition of the advisory committee. 

And this is a very sensitive area for many reasons. But I think it is important that it be thought about and examined, because it has just 

grown without legislative oversight, and without, so far as I know, any 

act of public inquiry from Congress.

When I said earlier that the advisory committees are not broadly 

representative, I did not mean to overstate that. They are obviously 

drawn from leading members of the bar who are able and hard-working lawyers, and they are representative of a segment of opinion. But 

as the legal process gets more complex, and as more and more segments of the lay community come to need representatives, it has become clear to us that it is not enough simply to choose between a broad 

range of established, successful lawyers. I t has been pointed out that 

the average age of the advisory committee which drafted the rules of 

evidence was 65. The groups in society which are less able to call on 

lawyers, the poor, racial minorities are obviously going to be less 

represented, unless a deliberate attempt is made to overcome that. 

And I think, if I may say so, that it simply is not enough to put a 

prestigious criminal defense lawyer, or a well-known plaintiffs’ lawyer 

in stockholders suits on one or another of these committees. As the 

issues become more and more reflective of the many points of view in 

our society, tha t should be built into the point in process too. And 

tha t is particularly true now when they operate as they do so much in 

private. It would be true in any case.

The second problem is even more fundamental, and even more di fficult to broach. And tha t is tha t the role of the Chief Justice in this 

process is, as I say in my statement, and I think it is true, without 

parallel in the lawmaking system. And I say this in criticism of no 

particular Chief Justice. As you know, it has Deen true of at least the 

last two, and probably beyond that. The Chief Justice appoints the 

members of the advisory committee, he appoints the members of the
201

sta nd ing com mittee, he appoint s the rep orter s, he s its at some of t he 

meetings of the advis ory committee, and, of cours e, he pre sides over 

the Ju di ci al Conferenc e. A nd he then p resides over th e Supre me Co urt 

when he prom ulg ate s the rules. I th in k it is true th at there is no t in 

this b uildi ng a ny sim ila r sing le official w ith so pervasive a role in th e 

legislative process.

Now, I can say as an ear nes t of th e fact t h at I make th is po int as 

an insti tutio na l one, th at I have no idea w ha t e ith er the cu rre nt C hie f 

Ju stic e’s or h is pred ecessors’ c on tribu tio n was to pa rtic ul ar ru les. But 

long ago, I su ppose, when th e R ules Co mm ittee of the House was given 

the a utho rit y it now has, it decided th at there was a lim it to t he role 

} th at a single official sho uld p lay in the leg islative process. I am speak ­

ing of the Speaker of the House. And, of cours e, the Ch ief Ju stice 

even less so, 1 th ink, shou ld pla y such a centr al role, because he is p rij. mari ly a ju dg e who sits on cases.

Now, tliis is an enormously difficult pro blem to de al with. I t is very 

closely rel ate d to th e notion of who sho uld be given the rulem aking 

fun ction. A nd I would like to speak to tha t.

Now, Con gressm an Den nis, I cannot disagr ee in one sense w ith the 

sta tem ent you made a few minutes ago, th at everybody kno ws th at 

Ju sti ce Do uglas is righ t when he says the Supre me Co urt does no t 

rea lly look at the rules. I can not imagi ne th at you are wr ong about 

that. Of course, members of the J ud icia l Conferenc e ha ve c ontinued to 

say to the co ntrary, inc lud ing Ju dg e Lu mba rd this mo rning. Th e 

Supre me Co urt at least once, in Ha nn a v. Pl um er, which 1 quote on 

page 13 of mv statem ent , said specifica lly th at when a sit ua tio n is 

covered by one of t he rules.

* * * th e C our t has bee n in st ru ct ed to ap ply th e Fed er al Ru le, an d can re ­

fu se to do so only if th e Ad vis ory Co mm ittee, th is C ou rt an d Co ng ress err ed in 

th eir pr im a fa ci e ju dg m en t th at the Rule in qu es tion tran sg re ss es n eit her th e 

te rm s of th e Ena bling Ac t n or const itutional re st rict io ns.

An d I t hi nk i t probably is n ot a sufficieAt an swe r to say t h at J us tic e 

Douglas is righ t, even if some people say he was wro ng, because the 

Sup rem e C ou rt d id pro mu lga te th em , an d th en na turally , many people, 

no t all, are goi ng to feel som ewhat com mitted to the m as a res ult.

Dist ric t jud ges , I think—a nd Ju dg e Me rliige did say there was a 

str on g pre sump tion of co nstituti onali ty bu t it certa inly is a serious 

consider ation that if th e S upreme C ou rt is not in fac t passing on th em, 

£ it is not a good thing, for it looks as if the y are. W ha t we have—a nd

" remember, Chief Justi ce W ar re n in the passage I refer red to spoke

about Congress, too—w hat we have here is so many agencies of the 

Gover nment , and priva te citiz ens, passi ng in inap pr op ria te ways on 

* constituti onal issues, th at when we a re al l done, we have a feel ing th at

every body has OK’d it, w here as actua lly no one has OK ’d it. Th e ad ­

viso ry committees, the rep orter s say th at the fifth amendment is this, 

an d we th in k it is that. And the Ju di ci al Conference sim ilarly. The 

Suj meme Co urt sim ilarly. None of those decisions were made in the 

way we are all used to seeing jud ges decide constitution al questions, 

on the record, with brie fs, with arg um ents, w ith an opinion. They are 

all offh and. An d the y may be the most sou nd opin ions we can think of, 

or the y may not be. Bu t that is not the way judges are suppos ed to 

decide.
202

Mr. Dennis. You get that when somebody challenges the rule; do' 

you not?

Prof. Lesnick. You do. But then, you get a rule—again. T have the 

Chief Justice’s rule—which it is said has already been OK'd by the 

reporter, the advisory committee, and the courts, and by Congress. And 

the inaction of Congress is used as a buttress to support tha t idea. Xow, 

when Congress really acts, when Congress enacts a bill, it holds hearings, and it issues a report, and it states dissenting views, and it has 

debate, amendments, and a vote. And the presumption of constitutionality attaches to that. But we have here is four or five steps along 

the line, no one of which gives you what you want. Xow. when you 

say later you get it, sure, you get it. But you get it fighting an uphill 

battle.

Mr. Dennis. Of course, one way to reach what you are saying—and 

I am sure that is not what you are really arguing for—would he just 

to put it all back in Congress and have no rules unless we legislate.

Prof. Lesnick. I am not arguing for it.

Mr. Dennis. T know you are not. But tha t would be a way to get 

what you are talkin g alxmt with hearings and all the rest of it.Th at 

is what we did in the rules of evidence, of course.

Prof. Lesnick. Tn this one case. And that certainly would be throwing out the baby with the bath. Justice Douglas and Justice Black proposed that the Ju dicial Conference be given .officially what they say is 

the unofficial situation now, and that, the Enabling Act be amended 

to say tha t the rules are promulgated by them and come over here 

directly since the Supreme Court is out of it. Th at is one way of dealing with it. Another way of dealing with it would be for Congress to 

pass a statute setting up an independent commission with all three 

branches, the Chief Justice, the President, the Speaker, and the 

President of the Senate, nominating members, which would dra ft and 

promulgate rules which woijld come over to the legislature. And there 

are probably other methods that I have not thought of. Any of those 

methods have the advantage of removing the Supreme Court from this 

role, and leaving the Supreme Court in its historic role of dealing with 

constitutionality, unencumbered by some prior commitment which has 

a dubious basis in fact.

Mr. Dennis. Would you have laymen on that commission?

Prof. Lesnick. Well, that is really a central question. T think that 

there probably is a very strongly held feeling, certainly within the 

judiciary, and perhaps within the bar as well, that when you are dealing with rules of procedure, only lawyers should be involved, just as 

there are only lawyers on the Judiciary Committees of the Congress. 

And T think that view probably should be given weight. But T think 

tha t fact is probably one reason why it is of even greater importance to 

seek out lav views in some consultative way. One would need to give 

more thought to the distinction between the membership of the committee and Ms advisory structure. But T think th at even though laymen 

properly should not. be on the committee, in area where lav groups 

have a predictable interest, some structure should be built in by which 

thev could have input at the drafting stage.

Mr. Frick. T would certainly suggest that you have a few ex-convicts 

on it, they seem to be pretty well up on what the rules are and what 

changes are needed.
203

Prof. Lesnick. I am not speaking of the criminal rules alone.

Finally, congressional review. As I said earlier, the ad hoc responses 

in this connection, and in connection with the rules of evidence, are 

things which I think are very healthy. But as the old saying goes, we 

cannot go on meeting this way. And I think tha t either Congress is 

going to have to quietly drop its series or ad hoc reviews—and I think 

serious structural problems have been uncovered, and controversial 

rules are going to continue to come along—or it is going to have to 

devise a method by which it can keep the reviewing authority there 

and keep it viable without rendering ineffective the viability of the 

rulemaking process.

Now, Judge Maris had a couple of proposals in the Senate in connection with the Rules of Evidence Act. You may remember that the 

House passed a provision saying that the court may promulgate future 

amendments to the rules of evidence, but they would not be effective 

for 180 days, and could be vetoed by either House. He objects to the 

single House veto. And I have to agree with him. He points out th at 

you could provide for each House by a resolution of tha t House, to 

continually forestall the effective date for definite periods of time, 

while they looked at the matter. Tha t certainly seems a practical 

notion. I think this committee could address itself to what lawyers call 

the substance-procedure dichotomy. The Enabling Act has been given 

a very broad construction by the Judicial Conference and the Supreme 

Court itself. And many have argued and advised tha t if the rulemaking process were kept down a little more—the issue of privilege is 

an example of th at—and if rules of procedure that do affect substantive rights were not dealt with in the rules, then Congress could justify 

letting the rulemaking process go on as it has been. And that, I think, 

is certainly something tha t needs to be thought about and ought to be 

dealt with. It is something tha t the Judicial Conference could deal 

with itself.

If, as I suggested, it spelled out rules of procedure which would 

confront this question finally, and they did it satisfactorily, perhaps 

the matter could stop there. But I think that Congress would always 

want to reserve to itself some acceptable method, particularly if a 

lesser body than the Supreme Court is to promulgate the rules, of having an input. And I think a 6-month delay which could be, I repeat, 

triggered by a single House, coupled with an invigoration of the substance-procedure dichotomy, might be a solution. But I emphasize that 

I do not really know, I do not have a solution, I am here arguing tha t 

the problems need attention. And not just in a law school.

[The prepared statement of Prof. Howard Lesnick follows: j 

Sta te m ent of P rof. H owa rd L esn ic k

My name is Howard Lesnick. I am a Professor of Law at the University of 

Pennsylvania, where I have been a member of the F aculty since 19(50. Before tha t 

I served as law clerk to Mr. Justice John M. Harlan of the Supreme Court of 

the U.S. I teach a course and a seminar on the Legal Profession, and have been 

a member of the Board of Trustee s of the Center for Law and Social Policy, 

Inc., since its founding five years ago.

I app reciate the opportunity to testify before this Subcommittee. I want to 

use that o pportunity to speak, not to the substance of the Criminal Rules amendments now before you but to the rule-m aking process itself.

Recent experience has made it abundantly clear that it is timely for the Congress to re-examine the processes and procedures by which the Federal Rules are
204

•drafted and promulgated. The congressional preemption of the Rules of Evidence 

af ter the ir promulgation by the Supreme Court, followed by the year-long postponement of the effectiveness of amendments to th e R ules of Criminal Procedure, 

have not only provided meaningful congressional review of the issues raise d by 

those Rules, but have effectively drawn in question the continued vitality of the 

rule-making process itself. The Advisory Committee on the Criminal Rules, for 

example, has apparen tly postponed indefinitely the deadline for comments on 

a published Preliminary Draft of fu rth er amendments to the Criminal Rules and 

of a new set of Rules governing habeas corpus actions for state prisoners and 

collateral attacks on federal convictions under 28 U.S.C. Section 2255. The provision in the Rules Enabling Act for a 90-day postponement of the effectiveness 

of Rules promulgated by the Supreme Court was never intended to occasion full 

legislative review of each set of Rules amendments. As recent legislative experience makes clear, ninety days is too sho rt a time (see the stateme nt of 

Senator Ervin (120 Cong. Rec. S11965 (Ju ly 9, 1974)), and routine legislative 

reconsideration of the issues resolved by th e draftsm en of proposed Rules would 

inevitably sap the vitality of the draftin g process as we know it. Unless we are 

to return to the era of legislative prescription of procedural rules, full-scale 

legislative review of court-promulgated rules cann ot be the no rm ; yet recent 

events seem on the verge of making it so.

It would be difficult to find a supjiorter of a return to the days of legislative 

rule-making. The reform of federal procedure which followed the enactment of 

the Rules Enabling Act is justly lauded as a major achievement of our legal 

system, in which the legislature, the judiciary and the bar jus tly share pride. 

But it seems equally plain that Congress should not simply turn its back on the 

experience of its inquiry into the Rules of Evidence, an exi>erienee which disclosed major deficiencies in rule-making procedures and imi>ortant gaps in Congressional and public knowledge about the way in which the system has actually 

worked. If the rule-making process is to be revalid ated, it must be as a result 

of reforms in the procedure by which that process operates. Thus, by focusing 

on that procedure, and not merely on the issues raised by partic ula r Rule amendments laid before Congress, this Committee can make it possible for the process 

once again to operate as originally intended.

Four areas of the rule-making process require serious exam ination and rethinking. They are:

(1) The lack of sufficiently widespread input, by all aspects of the legal 

profession and by the public itself, as a result of the procedures by which 

the Judicial Conference and the Advisory Committees reporting to it dr aft 

rules an d recommend them to the Supreme C ou rt;

(2) the rela tive unrepresentativen ess of the Advisory Committees, and 

the excessive centralization of the autho rity to api>oint members of J udicial 

Conference com mittees;

(3) the inappropriate ness of utilization of the Supreme Court as the official promulgator of the R ules;

(4) the lack of meaningful mode of Congressional review which does not 

undermine the rule-making process itself.

Before speaking briefly to each of these. I want to note at the outset the 

tentativenes s of the perceptions, and partic ularly the proposals for change, set 

out in this statement. One of the great difficulties with the rule-making process 

is its fluidity and rela tive invisibility, and it is very likely that simply by conducting full-scale hearings on the question this Committee will contribute enormously to the fund of knowledge about the process, with the likely resu lts that 

other problems may come to light and new proposals for improvement may 

surface.

t l ) Judicial Conference procedures should be made more open, and should be

published.—In authorizing the Judicial Conference to “carry on a continuous 

study of the operation and effect’’ of the Rules of Procedure and to recommend 

(■hangs in them to the Supreme Court (28 U.S.C. §331), the Congress said 

nothing about the procedure by which the Conference should carry out the task. 

Nor has the Conference itse lf seen fit to publish rules of procedure, or even a 

more informal statem ent of its procedures. What we know about the method by 

which Rules are dra fted and considered comes la rgely from speeches or articles 

by judges active in the work of the Conference. See. for example. Judg e Maris’ 

article. Federal Procedural Rule-m aking: The Program of the Judicial Conference, 37 A.B.A.J. 772 (1901).
205

Were the Conference to publish its procedures it would not simply enhance the 

awareness of interested persons and thereby facilitate their part icip atio n; it 

would be required to face explicitly the question whether its procedures presently 

provide adequate means for obtaining a broad range of input. There is certainly 

no doubt tha t such was the intention of those judges active in the origins of the 

present system,1 2 but, as became clear in connection with the Rules of Evidence, 

it is insufficient simply to have a prelimin ary dra ft published in the West Reporter advance sheets and to mail copies to Bar Associations and various public 

officials. No attempt is made to seek out actively the comments of groups with a 

vital interest in the issue. No attempt is made to consult lay groups at all, even 

though they are often importantly affected by procedural rules. No public hearings are held, as was proposed by a long-term parti cipant in the rule-making 

process. Professor J. W. Moore (1A Moore, Federal Practice H 0.511-.51 2) ; yet, 

as a legislative committee is surely aware, a submission that is entirely written 

is simply not equivalent—whether to the autho r or the recepient—to one which 

may be supplemented, however briefly, in a face-to-face encounter?

There is no assurance that, if major changes are to be made in a draft after 

its circulation, there will lie furthe r disclosure and opportunity for comment: 

the Rules of Evidence were extensively rewritte n in private, prior to their final 

consideration by the Court. Finally, no disclosure is made of any division within 

the Advisory Committee, Standing Committee or Conference itself, which might 

aler t interested lawyers and legislators tha t matt ers of controversy are being 

resolved. It is only rare fortuitous disclosures—such as Mr. Justice Douglas’ 

passing reference to adoption of certain Criminal Rules amendments “by the 

narrowest majority,” 383 U.S. at 1093 (I 96 0) —that bring the reality of policy 

formulation to wider consciousness.3 *

It should l>e borne always in mind th at the process of promulgating Rules is 

essentially a legislative one. To say that is not to assert tha t it must be carried 

out only by the Congress; the point is rather that , just as the Legislature has set 

up procedures designed to encourage the citizenry to make its view’s known and 

to make it more likely for Congressmen to become aw are of varying inputs, so 

judges and advisors to judges, when acting in a legislation-writing capacity, 

should use procedures similarly democratic in their conception. It is dangerously 

misleading to say th at “rule-making is a matter for research, study, and judicious 

analysis and critiques, not one for the public platform.” Clark, Tiro Decades of

the Federal Civil Rules, 48 Colum. L. Rev. 435, 444 n. 45 (19 58). Research and 

study are surelj7

 essential; they are surely not all that is involved. In fact, it is 

exactly the notion th at the rule-making process is simply the technical perfection 

of housekeeping matters, of legitimate interest only to the Judiciary and a small 

group of lawyers advising it, tha t is the central vice in the present rule-making 

apparatus.

In this connection, it is instructive to recall the requirement of the Freedom 

of Information Act tha t each agency shall “state and currently publish * * * 

for the guidance of the public” : “Statements of the general course and method 

by which its functions are channeled and determined, including the nature and 

requirements of all formal and informal procedures available; * * *” 5 T’.S.C. 

§ 5 5 2 (a )( 1 )( B ).

The Administrative Procedure Act exempts “the courts of the United States”-

from its requirements (§ 5 51 (1 ) (B )). While the members of the Judicial Conference are judges, it seems clea r t hat in exercising the functions conferred un der 

§ 331 of the Judicial Code, they are not acting as a court. The point here, however, is not whether there is a legal basis for a claim of non-compliance with 

the APA; even if those parti cula r requirements were not thought approp riate 

surely some analogous modes of insuring optimal public visibility and particii»ation in the rule-drafting process should be a pa rt of that process.

1

 See. fo r ex am ple. Ju dg e B ig gs ’ st a te m e n t a t a pa ne l di sc us sion , ch ai re d by Mr. Ju st ic e 

Cla rk , be fo re th e Se cti on of Ju d ic ia l A dm in is tr at io n of th e Am er ican B a r Ass oc ia tio n a t 

th e tim e th a t Co ng ress w as co ns id er in g th e Ju di ci al Co nf er en ce pr op os al to de le ga te to it 

th e ru le -d ra ft in g fu nc ti on s It has now . Th e Rul em ak in g F unc ti on an ti th e Ju d ic ia l Con fe renc e of t h e U .8 ., 21 F.R. D. 11 7, 2 1 5 (1 9 5 7 ).

2

 T he w ri tt en su bm iss ion Is re nd er ed ev en le ss eff ec tiv e be ca us e on e is di sc ou ra ge d fro m 

re vi ew in g th e co m m en ts su bm itte d by oth er s, an d fl at ly de nied ac ce ss to cr it ic al do cu ­

m en ts , such as th e R ep or te r’s m em or an da , w hi ch wo uld il lu m in ate th e is su es ad dr es se d 

by th e Ad viso ry Co mm itt ee .

3

 T he re w er e re po rted to be de ep di vi si on s w it h in th e Adv iso ry Com m itte e on se ve ra l

se ct io ns of th e Ru les of Ev id en ce , w hi ch on ly came to li g h t be ca us e of Con gr es si on al in te rve nt io n. Di d th e Ju dic ia l Co nf er en ce , an d th e Su pr em e C ou rt , le arn of th e ex is te nc e o f

su ch st ro n g c on tr ov er sy wh en th ose b od ies co ns id er ed th e R ule s?
206

(2) The composition of the Advisory Committees should be more representative, and the appropriateness of the extreme centralization of authority in the

Chief Justice should be examined.—Greater care needs to be taken that the 

lawyers appointed to the Advisory Committees reflect a true cross-section of those 

segments of the public and of the Bar likely to be affected by the Rules in the 

relevant areas. While there is absolutely no doubt that the Advisory Committees 

have been staffed by extremely talented, dedicated, and high-minded lawyers, 

the question is a more fundamental one, th at of representa tiveness. See the 

discussion of the particular instance of the Advisory Committee on the Rules of 

Evidence, in the hearings on the Rules of Evidence before the Subcommittee of 

the House Judicia ry Committee on Reform of Federal Criminal Laws, Hcarinys,

93d Cong., 1st Sess. at 178-79 (1973) (sta tem ent of Charles R. Halpem and 

George T. Fram pton, Jr .). Especially if it is thought necessary to coniine committee membership to members of the Bar, it is essential that genuine priority 

be given to the need to assure tha t relatively under-represented groups—the 

poor, racial and ethnic minorities, women, children, and those generally less 

able to call upon the services of the legal profession—be included in some meaningful way. Congress has, in many other areas of legal regulation, enacted into 

law general guidelines expressing its wish that selections made by the Executive 

Branch or by adm inistrative officials be so represen tative, and there is nothing 

inappropriate in doing the same with respect to the constitution of Advisory 

Committees. Again, though we are dealing with judges, we are not dealing with 

the exercise of adjud icatory functions.

The second problem is more fundamental still. As the work of the Judicial 

Conference has become more sophisticated and complex, the centralization of 

authority in the Chief Justice has been enhanced. He appoints the members of 

the Standing Committee on Rules on Prac tice and Procedure and the members 

of the Advisory Committees. lie appoints the R eporters to the Advisory Committees, typically law professors, who do the actual dra fting of rules and memoranda. He sometimes atte nds meetings of the Advisory Committees. He presides 

at the meeting of the Jud icia l Conference when it decides whether to recommend 

a proposed set of Rules to the Supreme Court, and of course presides over the 

Supreme Court’s deliberations on the decision to promulgate.4

Surely it is not a criticism of any of the Chief Justice s who have exercised 

thi s authority to observe th at this is simply too much power to be lodged in one 

person. It is probably accurate to observe th at the Chief Justice plays a role in 

the promulgation of Rules which has no analog in the Legislative Branch. One 

would have to recall the office of the Speaker of the House in the days of Speakers 

Cannon and Reed, prior to the modern constitu tion of the Rules Committee, to 

name a figure so centrally involved in selecting the personnel who shape the 

final proposal, and in the deliberative processes involved. It is even less appropri ate for such power to be centralized in an individual who, for all his necessary 

functions as the chief adm inistra tive officer of the fede ral judicial system, nonetheless remains prim arily one of the nine Justice s o f the Supreme Court with the 

duty to hea r and decide cases and controversies within its jurisdiction, including 

those involving the validity or interpreta tion of the Rules. It is not easy to devise 

a cure for this problem, but the difficulty only counsels more strongly for the 

need for this Committee to come to grips with it.

(3) The assignment of a Rule-promulgating role to the Supreme Court is unwise and inappropriate, and should be re-examined.—There has apparen tly never 

been full consideratio n by a Congressional Committee whether there is merit in 

the proposal that the Jud icial Conference be given the entire rule-promulgation 

role, and the Supreme Court retu rned to its cen tral function under the Constitution of deciding cases. This was the proposal of Mr. J ustice Black and Mr. Jus tice 

Douglas in 1963, dissenting from the promulgation of several amendm ents to the 

Civil Rules, see 374 U.S. 861. 809-70, and was apparen tly considered by the 

Jud icia l Conference itself in 1957, although rejected by it. See Judg e Clark’s 

article, cited above. 58 Colum. L. Rev., at 444 n.44. As Justice s Black and Douglas 

observed, with respect to the Judicia l Conference:

4

 Professor Charles Alan Wright, who has been Involved In the rule-making process for 

many years and is now a member of the Standing Committee, wrote In 1967 tha t Chief 

Justice Warren attended meetings “to the exten t th at his schedule permits.” Procedural Reform: Its Limitations and Its Future, 1 Ga. L. Rev. 563-566. Again, the allocation of appointing author ity is nowhere set out, whether in statu te or published rule of the Conference. It Is appa rently thought of as the natur al prerogative of the Chairman of the 

Conference. See Judge Maris’ article, cited above, p. 774.
207

‘‘It is they, however, who do the work, not we, and the rules have only our 

Imprima tur. The only contribution that we actually make is an occasional exercise of a veto po wer.”

The point is not th at t he Court is doing less tha n it ought. Indeed, i t takes litt le 

reflection to realiz e th at the Supreme Court, by reason of is caseload and its 

mode of opera tion, would be unable to und erta ke any rea l rule-by-rule review 

of the merits of con troversia l propo sals? Even were the Court somehow to thin k 

it necessary or wa rra nte d for it to consider on the me rits a pa rticular controvers ial issue, our legal tra dit ion s suggest th at it should do so in the method by 

which cour ts have historic ally attem pted to resolve disputed quest ion s: briefing, 

argum ent, delib erati on, and the prep arat ion and publication of opinions, inclu ding those sta tin g diffe rent views from those prevailing. Fo r the Court to decide 

in camera, and with out even a general invitation to the Bar to submit brief s 

(much less an opportunity to respond to the submissions of othe rs) , any of the 

controversial ques tions rais ed about recent Rules amend ments—the scope of 

privilege, or of gover nmen tal secrecy, the use of a summons rather tha n a wa rra nt to commence a crim inal case—would be most unf ortu nate, for we would be 

accorded nei ther the due process which is associated with the adjudicati on of 

•cases nor th at which accompanies the consid eratio n of legislatio n.

It is inevitab le, however, that the Rules, bearin g the Court’s “im prima tur,” 

will have a sta ture enhanced by that contact.5 6*8 Indeed, in at least one case, Hanna

v. Plumer, 380 U.S. 460 (1 96 5) , the court unblushingly said as much :

“When a situ atio n is covered by one of the Federal Rules * * * the Court has 

been instruct ed to apply the Federal Rule, and can refuse to do so only if the 

Advisory Committee, this Court and Congress erred in t he ir prima facie judg men t 

th at the Rule in question transgre sses nei ther the term s of the Enab ling Act 

no r constitu tional res tric tion s.”

And. not surprisin gly, at leas t one District Court has expressly ruled th at a 

“strong pres ump tion” of constitu tion ality supp orts any Rule approved by the 

Supreme Court, for surely the Court had presumably acted with in its power. 

Helms v. Richm ond-Petersburg Turnpike Auth ority, 52 F.R.D. 530, 431 (E.D . 

Va. 197 1). Of course, wh at the Supreme Court adj udica tes about the Cons titution. af ter submission to it of a case on record, with opposing brief s and argument. car ries not only the presumption but the autho rita tiv e dete rminati on of 

con stitu tionality . And what the Leg islature enac ts—af te r submission of a bill, 

its refe rral to committee, hear ing and rep ort (inc luding publication of them, 

with the individual views of Committee membe rs), debate, amendm ent and vote, 

all simila rly published—carr ies a presum ption of con stitu tionality . Here, however. we face the uniqu e situatio n of Rules, dra fted by a committee of priv ate 

citizen s and judges acting in an advisory capacity, which operates for the most 

pa rt in priv ate; approv ed by a body of judges , meeting entire ly in priv ate; 

promu lgated by the Supreme Court with out any real expectation, or the procedure to wa rra nt that expectation, of focused consideration of con stitu tional 

questio ns; and “approved” by the Legislature through simple inactio n for a 

period of 90 days. In short, neither as a legis lative nor an adjudicato ry process 

does the pres ent structur e for rule-making meet the expectations of our consti tut ion al trad itio ns; in Ihe amalgam of roles, the pa rtic ipa tion of neither Court 

nor Congress serves adequ ately to assure genuin e consideration of serious policy 

question s, let alone of c onst itutional m atter s.

There are other ways of meeting the problem tha n delegating the entire 

function to the Judicial Conference. One migh t favo r the creati on by sta tute 

of an indep enden t Commission with its members chosen by leade rs of all thr ee 

Bran ches of Government and the adequacy of its procedures assu red by law. 

For the present, it is sufficient to note th at several sub stit ute mechan isms may 

be desired, and their rela tive wisdom assess ed—one there is acknow ledgement 

of the inap prop riatenes s of the prese nt involvement of the Supreme Court.

5

 As Pro fe ss or Sund er la nd ob serve d fo ur d ec ad es ago :

“C ou rts ca nn ot , an d ought no t to be ex pe cted to as su m e th e bu rd en of ke ep ing th e 

pr oce dura l sy stem In pro pe r ad ju st m en t to th e ne eds of th e tim e. Th ev ha ve ju di ci al 

work to do which is of fu nd am en ta l im po rtan ce , wh ich ca nn ot b e po stpo ne d, an d 

which m ust oc cu py al m os t th eir exclus ive att en ti o n . T hei r pr im ar v fu nct io n is to 

ad m in is te r an ex is ting sy stem , not to en ga ge in th e re se ar ch ne ce ss ar y fo r th e deve lopm en t of n ew m et ho ds o f ad m in is te ri ng just ic e. ”

Character and extent of the Rule-making Power Granted, the U.S. Supreme Court. 21 A.R.A.J 404. 460 (1035).

6

 Mr. Ch ief Ju st ic e St on e’s as su ra nc e fo r th e Cou rt, th a t its pr om ul ga tio n of a Rul e does

not “forec lose ” co ns id er at io n of it s va lidi ty or co nst ru ct io n (M iss issipp i Pu b. Co. v. .1/ur ph re e, 326 U.S . 438, 444 (1 940)) , an sw er s too nar ro w a qu es tio n.
208

(4 ) A workable mode of genuine congres sional review needs to be devised.—

Plainly, nei the r the Houses of Congress nor the ir Jud icia ry Committees can 

adequ ately consider the wisdom of proposed Rule amendmen ts in 90 days. It 

is therefore necessa ry either to retu rn to the regime which in effect oper ated 

pri or to the prom ulgation to the Rules of Evidence, whereby ther e is no real 

congressional oversight, or to devise a method of providing it which does not 

so undermine the rulem aking process that it collapses, as indeed may now be 

thre aten ed. Experience has shown th at the legis lative man date that Rules ••shall 

not. abridge, enlar ge or modify any sub stan tive rig ht” (28 U.S.C. §2 07 2) lias 

not been self-executing; the proposed Rules of Evidence ar e now generally 

conceded to have contained much that was “sub sta ntive” with in any relev ant 

meaning of th at term .7

A p artia l solution migh t be to spell out more fully the th ru st of the limi tation 

on the Enab ling Act protectin g existing sub stan tive rights. Such a result could 

come about through legis lative amendment, thro ugh a decision of the Supreme 

Court in a case challenging a Rule (althou gh all such challenges have been 

quickly turn ed aside, from Sibbach v. Wilson, 312 U.S. 1 (194 1. throu gh Hanna

v. Plum er), or, indeed, through a rule published by the Jud icia l Conference 

itself a s pa rt of the set of proced ural rules we recommended above, which would 

give fu rth er content to the substance -procedure dichotomy and ful ler guidance 

to the Advisory Committees considering fu ture Rules changes.

It might be contended th at an invigorated concept of “substant ive rights" 

und er the Enabling Act, coupled with reform of Jud icia l Conference procedures, 

would rend er feasible a ret urn to congressional passivi ty in futur e prom ulgation of Rules amendm ents. But ther e would probably still be a need for a mechanism whereby limited or occasional genuine legis lative review will be readily 

to hand. 8

 One appro ach would be in some app rop riate man ner to involve representativ es of the Congress in the rule-making process i tself , althou gh that method 

poses grave dangers of its own. Perh aps a simple lengthening of the 90-day 

period of delay in effectiveness would suffice, as the House has provided with 

resjiect to futur e changes in the Rules of Evidence. II.R. 5463, § 2. Judg e Maris 

has suggested th at each House be empowered to delay fu rth er the effectiveness 

of proposed amendm ents (St ate me nt to Senat e Jud iciary Committee, Jun e 4. 

197 4). For the p resen t, it is enough again to observe th at the difficulty of devising 

a ready solutio n is no a rgum ent for ignorin g the seriou s difficulties w ith the pr esent regime; rather it is one for this Committe e to act, as it uniquely can, as a 

powerful stimu lus to the setting of many minds—within Congress and witho ut, 

within the judicial system and with out—to thin king on the problem and its 

solution.

Mr. S mith. T thank you very much. I think your remarks are very 

apropos, and do present an area that both the Judicial Conference and 

the Congress ought to look at. I am sure Professor Remington will 

take the word back to the Conference, the standing committee, and the 

advisory committee. I guess I agree with you that perhaps the suggestions ought to come out of the Judicial Conference on reform.

Mr. Hungate said this morning tha t we have been try ing to get the 

Senate to take up the Federal Rules of Evidence that this committee 

worked so hard and diligently on. He said this morning, if they cannot 

do it, why, maybe it will be an indication or some evidence that Congress does not have the aptitude to do this job. The Judiciary Committee in the Senate was to have met yesterday, T guess, and they did not 

have a quorum. So we just have our fingers crossed as to whether the

7

 I t Is In te re st in g to re ca ll P ro fe ss or W ri g h t’s ad m on itio n in 1967 th a t H nn nn v. Plu m er ,

su p ra , by ho ld in g th a t th e R ul es cou ld va lidl y ov er ri de s ta te la w in a ca se go ve rned by 

s ta te la w , im po ses a “ he av y b u rd en ” on ru le -d ra ft ers to ex er ci se se lf -r es tr a in t not to tr en ch 

to o clo sel y on th e su bs ta nc e- pr oc ed ur e dic ho tomy. See th e n rt ic le cited abo ve. 1 Ga. L. Rev., 

a t 5 7 1-3 . H e us es , as a co m pe lli ng ex am ple , th e qu es tio n o f pr iv ile ge in th e law of ev ide nce. J u s t th is ex am pl e se rv ed , a ve ry few ye ar s la te r, to de m onst ra te th e fa il u re of sel fim po sed re st ra in t.

8 II. R. 54 63. S 2, wo uld en ab le a sing le Ho us e to ve to fu rt h e r am en dm en ts to th e Ru les 

of Ev ide nc e. As Ju dge M ar is has po in te d o u t (S ta te m e n t to Sen at e Ju d ic ia ry Co mmitt ee , 

Ju n e 4, 1 9 7 4 ). th is is an ex ce ss iv e as se rt io n of ov er si ght po we r, wh ich m ig ht we ll im pa ir 

th e v it al it y of th e Rul e- m ak in g pro ce ss.
209

Senate is going to act on the Federal Rules of Evidence during this 

session of Congress. We hope they will. AYe do think generally, that 

the Congress does have the aptitude to do this job. Rut if we miss this 

one, it may be the evidence that we do not have.

Your suggestions have been very good and very well thought out. 

And certainly, they present some areas t ha t we and the Judicial Conference ought to give a long, hard look at.

As far as the Federal Rules of Evidence are concerned, it was our 

understanding tha t they have been some 12 years in the preparation. 

I had sort of got the feeling tha t almost everybody in the United 

States was involved with them at some stage in the proceeding.

Prof. Lesnick. Tha t turned out not to be the case.

Mr. Smith. Thank you very much, gentlemen.

And if there are no furth er witnesses, we will declare this hearing 

adjourned.

[Whereupon, at 3:45 p.m., the subcommittee was adjourned, subject 

to the call of the Chair.]

o