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THEORY OF THE CASE

LAST THINGS FIRST

In order to put on a citizen’s case one must have a theory of defense. The jury wants and expects to hear the defendant’s side of the case and it is the defense counsel’s job to marshal and present the cast of characters who will present the defendant’s side of the story. After all, every reasonable person knows there are two sides to every story. And at the close of the prosecutor’s case the jury has heard only one side of the dispute. Therein lies the defense attorney’s dilemma: in order to win, the defense must generally put on a case.

STORY TO TELL

Given that the defense also has a story to tell, it should be told, simply, and to the point. Mother Goose! However, before Counsel can select which witness to call or what testimony to elicit he or she must have a clear concept of what story needs to be told in defense of his client. Counsel must know the law in order to present a defense which is legally sufficient under the anticipated charge of the court and have a good working knowledge of the available facts in order to insure that a factual basis for the defense is presented.

The bottom line, however, is not the charge of the court or the legal sufficiency of the evidence, it is that the citizen’s story catches the jury’s fancy. So, we start preparing our case at its conclusion, the closing argument. Your closing argument that is the story line, along with all the counsel’s examination should follow. The opening serves as an advertisement for coming attractions to insure that the audience stays tuned and pays attention as the story unfolds. The story should have a beginning, middle and a conclusion and the order and substance of the witnesses called by the defense should build the story’s plot to a finale.

General background information and testimony personalizing the citizen enables the cold courtroom audience to feel more comfortable with and more receptive to a fellow citizen accused of wrongdoing. And the story, as portrayed through your witnesses, should follow logically from beginning to end. A general rule might be to place your strongest witnesses (both as to who they are and what they have to say) at the beginning and at the end of the defense presentation. But whatever the order the story needs to flow like a fairy tale, understanding the limitations of its audience’s sophistication and attention span. Some simply will tolerate and comprehend more than others.

APPEARANCES COUNT

Consideration should be given to discussions regarding appropriate attire and demeanor with careful attention to the particular audience (Jury) you anticipate will be hearing the case.

You must gauge the impact of the sum total of your witness’ occupation, education, intelligence, demeanor, appearance and interest in the outcome of the case, will have on the fact finder.

You need to ascertain his or her prior criminal record, and as best you can, participation acts similar to those charged against your citizen accused. US v. Hodnet, 537 F.2d 828 (5th Cir. 1976), rehearing denied. 540 F.2d 1086 (allowing Government to inquire of defense witness regarding her “attitudes toward drug use and …presence during a prior illegal drug transaction to which [defendant] was not a party” in order “…to show her bias and prejudice in favor of those engaged in drug sales”).

ADVISE EACH WITNESS OF HOW HE OR SHE FITS IN “BIG PICTURE”

In addition to familiarity with their own direct testimony each witness needs to know the “big picture”, the overall story line and defense, and how his testimony fits in and is important to the total effort. Advising the witnesses of the order in which they will be called often enables them to better see the entire forest and reduces anxiety as well.

WITNESS NEEDS TO BE PREPARED FOR THE COUNTER ATTACK

The greatest fear most witnesses have is the what is “HE” going to ask me, referring to the prosecutor’s cross-examination. To alleviate that anxiety and better prepare the witness for what will be asked of him it is useful to take him or her through the standard litany of cross-examination questions dwelling upon those weak points of their background or testimony that it is anticipated the prosecution will seek to expose. Where those areas are “open and obvious”, consideration should be given to bringing them out on direct or reduce the “sting.”

THE “REAL EVIDENCE” IS NOT ALWAYS TESTIMONIAL

Generally, the jury will share the building with the defendants and the witnesses. That includes not only the courtroom but the rest rooms, the hallways, the snack bar and parking lot. Particularly in conspiracy cases the most damaging spectacle the jury will observe is not the defendants and their counsel huddled around counsel table, whispering in the courtroom, but out in the hallway giggling together or flashing the “at-a-boy” signal to the previously “disinterested” witness who has just stepped off the stand.

ANTICIPATING IMPEACHMENT: BEST TO KNOW HOW DEEP IS THE WATER BEFORE DIVING IN…

But before deciding to put your citizen on the stand or calling a witness to testify one needs to know what dangers that course presents.

DISCOVERY OF YOUR WITNESS’ STATEMENTS IN THE PROSECUTOR’S POSSESSION

Every effort should be made to discover any prior statements in the Government’s possession which might be used to impeach your client or his witnesses as a “prior inconsistent statement” under FED. R. CRIM. P. Rule 613.

DISCOVERING THE DEFENDANT’S STATEMENT

[See Pretrial Motion Outline]

FED. R. CRIM. P. Rule 16(a)(1)(A) provides that upon request of the defendant the Government shall permit discovery of:

  • Any relevant written or recorded statements made by the
  • The substance of any oral statement made by the defendant to a person known to him to be a Government agent, whether before or after arrest, which the Government intends to offer in evidence at the
  • The recorded testimony of the defendant before a grand jury relating to the offense charged, and where the defendant is a corporation, partnership, association, or labor union, the court may grant discovery of relevant recorded grand jury testimony of any officer or employee of such entity who was at the time of the charged acts or of grand jury proceedings is able to legally bind the defendant with respect to the activities involved in the

WRITINGS OR TAPE RECORDINGS OF THE DEFENDANT

FED. R. CRIM. P. Rule 16(a)(1)(A) provides that written or tape recorded statements of the accused need only be relevant to fall within its structures, whether or not the Government intends to offer same at trial.

Unlike unrecorded oral statements, the defendant’s written or recorded statements are discoverable without regard to whether they were made before or after the accused’s arrest. US v. Crisona, 416 F.2d 107, 112-16 (2d Cir. 1969) cert. denied, 397 US 961 (1970) (holding failure to disclose held harmless). See also US v. Buralino, 576 F.2d 446 (2d Cir. 1978), cert. denied, (F.B.I. destruction of poor quality back-u tape recordings of defendants was strongly criticized as an infringement on Rule 16, but nevertheless held to be harmless error); US v. Grammatikos, 633 F.2d 1013 (2d Cir. 1980); US v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976), cert. den. sub nom., Erlichman v. US, 431 US 933 (1977); US v. Walker, 538 F.2d 266 (9th Cir. 1976); US v. Rosenberg, 299 F.Supp. 1241 (S.D.N.Y. 1969) (Frankel, J.).

The Defendant’s voluntary, unsolicited utterances are not discoverable under Rule 16(a)(1)(A).

US v. Reeves, 730 F.2d 1189 (8th Cir. 1984); US v. VonStoll, 726 F.2d 584 (9th Cir. 1984).

Tape recordings of a defendant’s conversation, even if unknown to the defendant at the time, are as well within the rule. David v. US, 413 F.2d 1226, 1230-31 (5th Cir. 1969).

Written statements discoverable under Rule 16 can be in the form of letters, even though not addressed to Government agents, and even though intercepted by unintended third parties. US v. Caldwell, 543 F.2d 1333, 1352 (D.C. Cir. 1975), cert. denied, 423 US 1087 (1976).

When an oral statement by the defendant differs from his written confession, the Government’s failure to provide that oral statement may constitute reversible error. US v. Ible, 630 F.2d 389 (5th Cir. 1980).

SPONTANEOUS ADMISSIONS

An unsolicited, spontaneous admission by a defendant within the hearing of an undercover police officer is not discoverable under this portion of the rule (where it is not recorded). US v. Green, 548 F.2d 1261 (6th Cir. 1977); US v. Viserto, 596 F.2d 531 (2d Cir. 1977), cert. denied. 444 US 841, 100 S.Ct. 80 (1979).

DEFENDANT’S ORAL STATEMENTS

Rule 16(a)(1)(A) mandates disclosure of oral statements either before or after arrest only when they re made in response to interrogation by a person then known to the defendant as a government agent. US v. Viserto, 596 F.2d 531 (2d Cir. 1979); US v. Zarattini, 552 F.2d 753 (7th Cir. 1977).

SUMMARIES OF INTERVIEWS

Rule 16(a)(1)(A) now requires discovery of any summary of an agent’s interview with the defendant, even if included within his investigative report. Same was not true prior to the 1972 Amendment. See US v. Ficravanti, 412 F.2d 407, 411-12 n.12 (3d Cir. 1969), cert. denied, 396

US 83 (1969). See the cases collected in US v. Johnson, 525 F.2d 999, 1004 (2d Cir. 1975), cert. denied. 424 US 920 (1976).

However, the Tenth Circuit has held that summaries of conversations between the defendant and undercover Government agents are not discoverable under Rule 16(a)(1)(A). US v. McClure, 734 F.2d 484 (10th Cir. 1984).

AGENT’S ROUGH NOTES

Discovery of an agent’s “rough notes” utilized to prepare his agency report, has been held proper under Rule 16 by some circuits. US v. Jefferson, 445 F.2d 247 (D.C. Cir. 1971); US v. Fallen, 498 F.2d 172 (8th Cir. 1974) (holding that agent’s rough notes are discoverable as Jencks Act material). However, a Government agent’s notes are not discoverable under the Jencks Act when the witness had neither signed, read, nor heard his entire statement. The adoption contemplated by the statute must be more formal. US v. Hogan, 763 F.2d 697, 704 (5th Cir. 1985). Two circuits have imposed sanctions where the notes have been destroyed, even if destruction of such discoverable material was inadvertent or in good faith. US v. Harrison, 524 F.2d 421 (D.C. Cir. 1975) and US v. Harris, 543 F.2d 1247 (9th Cir. 1976). Contra US v. Cole, 634 F.2d 866 (5th Cir. 1981).

In order for same to be discoverable under Rule 16, the defendant must show that an unrecorded oral statement was made to a government agent and that the defendant knew he was an agent at the time the statement was uttered. US v. Viserto, 596 F.2d 531 (2d Cir. 1978); US v. Zarattini, 552 F.2d 753 (1977).

At least one court has held that even silence may constitute a “statement” discoverable under FED. R. CRIM. P. Rule 16(a)(1)(A). See US v. Manetta, 551 F.2d 1352 (5th Cir. 1977).

“[t]he statement that I have no statement to make but wish to see my lawyer, itself is a statement within the terms of Rule 16.” US v. Manetta, 551 F.2d 1352 n.4 (5th Cir. 1977) (reserving the issue of whether the admission of that statement, itself, constituted a violation of his Fifth Amendment privilege).

DEFENDANT’S GRAND JURY TESTIMONY

Any “recorded testimony of the defendant before a grand jury which relates to the offense charged” is discoverable under Rule 16(a)(1)(A).

The policy of grand jury secrecy under FED. R. CRIM. P. Rule 6(e) does not apply to a witness before that grand jury and therefore there is no impediment to disclosure of the defendant’s own testimony before the grand jury. Dennis v US, 384 US 855, 86 S.Ct. 1840, 16 L.Ed.2d 953 (1966).

As the rule is couched in mandatory terms, many courts do not even require a showing of need of relevance in interpreting this rule. See, e.g. US v. United Concrete Pipe Corp., 41 F.R.D. 538 (N.D. Tex. 1966).

Recordation of all grand jury proceedings including statements made by prosecution is now required by FED. R. CRIM. P. Rule 6(e)(1).

CORPORATE OFFICERS

Rule 16(a)(1)(A) also adopts a broad interpretation of the discovery of grand jury testimony of corporate officers or employees where the corporation is a defendant.

However, it is interesting to note that this is one of the only provisions of the Rule which requires a motion directly to the court, a point not discussed in the Advisory Committee Note, although the note does not intimate that testimony of such corporate officers or other officials is now “discoverable as statements of the defendant.” FED. R. CRIM. P. Rule 16, Advisory Committee Notes, 1974.

SANCTIONS [RULE 16(d)(2)]

If a party fails to comply with a Rule 16 request, the trial court may:

  • order such party to permit the discovery:
  • grant a continue
  • prohibit introduction of the undisclosed evidence; or
  • enter such other order as is just under the

In determining the appropriate sanction, the court should consider:

  • the validity of reasons for non-compliance;
  • the extent of prejudice, if any, to the opposing party; and
  • any other relevant

See US v. Hartley, 678 F.2d 961, 977 (11th Cir. 1982), cert. denied, 459 US 1170 (1983) (there was no abuse of discretion to consider late date at which the government discovered and decided to use reports), abrogated on other grounds by U.S. v. Goldin Industries, Inc., 219 F.3d 1268 (11th Cir. 2000);

US v. Sarcinelli, 667 F.2d 5, 6-7 (5th Cir. 1982) (holding abuse of discretion to effect is dismissal of entire case and less severe sanctions available).

The Government’s failure to comply with Rule 16 is grounds for reversal only is the defendant can show substantial prejudice.

US v. Jones, 730 F.2d 593, 596-97 (10th Cir. 1984) (no material handicap in cross- examination);

US v. Hemmer, 729 F.2d 10, 13 (1st Cir. ) (no effect on defense strategy);

US v. Jennings, 724 F.2d 436, 444-45 (5th Cir.) (cross-examination adequate, defense knew undisclosed facts).

DEFENSE WITNESS’ STATEMENT TAKEN BY OR GIVEN TO LAW ENFORCEMENT

Rule 16 makes no provision for the disclosure of statement s of defense witnesses which have been given to or are in the possession of the prosecution and which may be used for impeachment.

However, where the defense witness is not a potential witness for the prosecution, then production of his statement would arguably not fall under the Jenck’s Act’s [18 U.S.C. §3500 (2)] prohibition against disclosure prior to trial [see also: Rule 26.2(a)] and accordingly, the statement of a witness the government does not intend to call should be discoverable as they are not covered by the Rule’s exemption. US v. Bremer, 482 F.Supp. 821 (W.D. Okla. 1979).

Also, to the extent that such statements may contain favorable, exculpatory, or mitigating information the “due process” clause should require disclosure under Brady v. Maryland, 373 US 83 (1963).

The Supreme Court has recognized three distinct situations in which the Brady doctrine, requiring disclosure of evidence favorable to an accused as a matter of “due process”, applies:

  1. The prosecutor has not disclosed information despite a specific defense request;
  2. The prosecutor has not disclosed information despite a general defense request for all exculpatory information or without any defense request at all: and
  3. The prosecutor knows or should know that the conviction is based on false

The Supreme Court dealt with the ethics of a government witness participating as a “defendant” in defense strategy sessions with other defendants and their counsel, the Supreme Court noted in dicta that “[T]here is no general Constitutional right to discovery in a criminal case, and Brady did not create one.” Weatherford v. Bursey, 429 US 545 (1977).

This right of the defendant to disclosure of “favorable” evidence exists whether such evidence is material to the defendant’s guilt or to mitigation of his punishment, Brady v. Maryland, 373 US 83, 87 (1963), and “irrespective of the good faith or bad faith of the prosecution.” Brady, 373 US at 87.

The Supreme Court’s decision in US v. Bagley, 473 US 667, 87 L.Ed.2d 481 (1985), declared:

“[Brady] evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. At 494.

In Kyles v. Whitley, 115 S.Ct. 1555 (1995), the Supreme Court placed the onus on the prosecution to produce exculpatory evidence that was significant enough to result in a denial of defendant’s right to a fair trial. The significance of such evidence is not evaluated in isolation but considered cumulatively with all the similarly exculpatory or impeachment information of which any member of the prosecution team is aware.

In Kyles v. Whitley, 115 S.Ct. 1555 (1995) the evidence found material was that: one out of four eye witnesses’ description did not match Kyles; statements made by a witness of the state did not express concern that he might be a suspect; license plates from cars at the scene which might have revealed suspects the state did not pursue.

“The fourth and final aspect of Bagley material to be stressed here is it s definition in terms of suppressed evidence considered collectively, not item by item. [T]he prosecution … must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” [that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles v. Whitley, 115 S.Ct. 1555, 1558 (1995)] is reached. This in turn means that he individual prosecutor had a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclosure is good faith or bad faith… the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.” Kyles v. Whitley, 115 S.Ct. 1555, 1567, 1568 (1995).

PRETRIAL DISCLOSURE OF “EXCULPATORY” EVIDENCE

The right to disclosure under Brady should include pre-trial discovery by the defendant, US v. Gleason, 265 F.Supp. 880, 884-85 (S.D.N.Y. 1967) (requiring in-camera inspection prior to trial); US v. Morrison, 43 F.R.D. 516, 520 (N.D. Ill. 1967); US v. Ladd, 48 F.R.D. 166 (D.Alaska 1969); US v. Ahmad, 53 F.R.D. 186, 193-94 (M.D. Pa. 1971); US v. Partin, 320 F. Supp. 275, 284-

85 (E.D. La. 1970); US v. Leta, 60 F.R.D. 127 (D.C. Pa. 1973); US ex rel Drew v. Myers, 327 F.2d

174 (3d Cir. 1964); ABA Standards, Discovery and Procedure Before Trial 2.1.

 See contra       US v. Leighton, 265 F.Supp 27, 35 (S.D.N.Y. 1967);

Ashley v. Texas,                          F.2d 622 (3d Cir. 1963);

US v. American Oil Co., 286 F. Supp 742, 754 (D.N.S. 1963);

US v. Moore, 439 F.2d 1107, 1108 (6th Cir. 1971).

Certainly pre-trial discovery of Brady materials should be allowed with respect to material which is “obviously exculpatory” or of “such a nature that delay in disclosure would prevent the defendant from effectively using it at trial.” US v. Cobb, 271 F. Supp 159, 164 (S.D.N.Y. 1967). After all, Brady itself involved a pre-trial request for a co-defendant’s statement.

“[I]t is recognized that there are some categories of exculpatory evidence which would be of little use unless discovered before trial.” US v. Ladd, 48 F.R.D. 266, 267 (D. Alaska).

See      US v. Agurs, 427 US 97, 110-11 (1976) (holding that some evidence so clearly exculpatory that due process requires disclosure, even with no Brady request).

Where exculpatory evidence is contained in a statement of a Government witness, discoverable under the Jencks Act only after the witness has testified, then the Jencks Act’s “…statutory restrictions must be accommodated to the demands of due process,” and the relevant portions disclosed prior to trial. US v. Gleason, 265 F. Supp 880, 887 (S.D.N.Y. 1967). Contra US v. Eisenberg, 469 F.2d 156 (8th Cir. 1972). The Constitutional mandate of the “due process” clause to the Fifth Amendment preempts any statutory prohibition against early disclosure contained in the Jenck’s Act or Federal Rules where pretrial discovery is required to insure the evidence’s usefulness.

The obligation to disclose favorable evidence to the accused is that of the Government and failure to disclose such information is not excused merely because the prosecutor did not have actual knowledge of such favorable evidence. Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964); Rhinebart v. Rhay, 440 F.2d 718 (9th Cir. 1971); US v. Auten, 632 F.2d 478 (5th Cir. 1980) (stating that a prosecutor cannot “compartmentalize” his information by not inquiring of the “prosecutorial team”).

“The duty of disclosure affects not only the prosecutor, but the Government as a whole, including its investigative agencies.” US v. Bryant, 439 F.2d 642, 650 (D.C. Cir. 1971).

Contra             Luna v. Beto, 395 F.2d 135 (5th Cir. 1968).

See also           US v. Gatto, 763 F.2d 1040 (9th Cir. 1985).

Rule 16(a)(1)(A)’s due diligence requirement relates only to the prosecutor and his awareness of another federal agency’s possession of requested statement.

This is because the rationale which underlies the Brady rule is not only based upon the desire to proscribe prosecutorial misconduct but to insure that the defendant receives a fair trial. Consequently, the fact that a Government agency suppresses evidence from the prosecutor should not be controlling where such adversely affects the defendant’s right to a fair trial.

However, it has been held the prosecutor need not go out and seek information favorable to an accused from non-governmental third parties, US v. Burns, 668 F.2d 855 (5th Cir. 1982), or from state government sources. See US v. Walker, 720 F.2d 1527, 1535 (11th Cir. 1983), cert. denied, 104 S.Ct. 1614 (1984) (state’s agreement with government witness for remuneration for testimony); US v. Luis-Gonzalez, 719 F.2d 1539, 1548 (11th Cir. 1983) (government witness’ state misdemeanor convictions not on FBI “rap sheet” containing felony convictions).

Certainly upon defense request a prosecutor has an obligation to exercise due diligence to determine if Government agencies have any information favorable to the defendant. MOORE’S FEDERAL PRACTICE- CRIMINAL RULES 16.06[1]; US v. Roberts 338 F.2d 640, 648.(2d Cir. 1968).

In California v. Trombetta, 104 S.Ct. 2528 (1984), the Supreme Court held that the prosecution has no constitutional duty to preserve evidence unless (1) its exculpatory value is immediately apparent and (2) it is of such a nature that the defendant could not obtain comparable evidence by other reasonable means. The Court did not, however, suggest how to measure the exculpatory value of evidence not preserved, such as breath samples taken from DWI suspects.

Brady Motions should be as specific as possible with respect to the items sought (e.g. names, addresses, and statements of witnesses to the offense unable to identitfy the defendant); however, the very nature of the Brady rule makes a particularized request in many instances a practical impossibility.

“If the defense does not know of the existence of the evidence, it may not be able to request its production. A murder trial- indeed any criminal proceeding is not a sporting event.” Giles v. Maryland, 386 U.S. 66 (1967) (Fortas, J., concurring). Cf. US v. Agurs, 427 US 97 (1976)

Materials and evidence which have been held to constitutionally require disclosure under

Brady v. Maryland include:

  1. Extrajudicial statements of a co-defendant favorable to the accused (indicating that defendant was guilty of murder but not capital murder as he had not pulled the trigger), Brady v. Maryland, 373 US 83 (1963);
  2. Evidence impeaching Government witnesses (“…favorable to the accused either direct or impeaching”), Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968).

See also           Giglio v. US, 405 US 150 (1972);

Giles v. Maryland, 386 US 66, 76 (1967);

US v. Miller, 411 F.2d 825 (2d Cir. 1969);

prior sexual relations by a prosecutrix in a rape case,

Giles v. Maryland, 386 US 66 (1967) (remanding for further proceedings); medical examination disclosing no evidence that kidnap victim had been sexually assaulted;

See US v. Poole, 379 F.2d 648 (7th Cir. 1967) (eyewitness’s oral statement that gave description which differed form defendant’s appearance [“defendant’s complexion was too dark for him to have been the man she saw”]);

Jackson v. Wainwright, 390 F.2d 288, (5th Cir. 1968), cert. denied. 593 US 180, [psychiatric reports indicating the defendant’s insanity],

Ashley v. Texas, 319 F.2d 80 (5th Cir. 1963) (eyewitness report indicating self-defense);

Butler v. Maroney, 319 F.2d 622 (3d Cir. 1963) (evidence with paint, no blood);

Miller v. Pate, 388 F.2d 737 (9th Cir. 1968) (fact that defendant appeared under influence of alcohol shortly after offense);

US ex rel Thompson v. Dye, 221 F.2d 1955 (3d Cir. 1955) (the criminal record of prosecution witness);

In re Ferguson, 489 F.2d 1234 (9th Cir. 1971) (unreliability of Government witness); Mesarosh v. US, 352 US 1 (1956) (fact that Government witness had faulty recollection of facts later testified to at trial);

Levin v. Clark, 408 F.2d 1209 (D.C. Cir. 1967) (instructions to Government witness not to speak with defense counsel, or to do so only in presence of Government counsel); Gregory v. US, 369 F.2d 185, 187-189 (D.C. Cir. 1966);

Coopolinio v. Helpern, 266 F. Supp 930 (S.D.N.Y. 1967) (evidence of a witness’s unstable mental condition);

See also           Giles v. Maryland, 386 US 66, 75 n.6 (1967) (fact that Government witness was an informer);

US v. Oft, 489 F.2d 872 (7th Cir. 1973) (information that prosecution’s key witness was the paramour of the defendant’s murdered wife);

Alcorta v. Texas, 355 US 28 (1957) (information indicating Government witness’ untruthfulness [e.g. witness’ false testimony]);

Napue v. Illinois, 360 US 264 (1959) (scientific information regarding ballistics or fingerprint examinations indicating defendant did not fire weapon in question); Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964) (name of witness who had stated that the defendant was not at the scene of the crime);

US ex rel Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964) (identity of any witnesses who can give favorable testimony for accused);

US v. Hinkle, 307 F. Sup 117 (D.D.C. 1969);

US v. Cody, 722 F.2d 1052, 1062 (2d Cir. 1983) (FBI Agents’ threats inducing witness to continue recording conversations with RICO defendant);

Austin v. McKaskle, 724 F.2d 1153, 1156 (5th Cir. 1984) (witness’ perjured testimony of aggravating factors at sentencing hearing leading to life sentence).

A defendant’s objection to the Government’s use of undisclosed Brady testimony is not waived by the extensive cross-examination of the witness if the trial court, in overruling the objection, expressly sets direction of the trial proof on the matter. See US v. Hogan, 763 F.2d 697, 701 (5th Cir. 1985).

RECIPROCAL DISCOVERY

STATEMENTS OF YOUR WITNESSES MAY BE DISCOVERABLE BY PROSECUTION [FED. R. CRIM. P. Rule 26.2]

[See Pretrial outline 21-24]

Calling a defense witness, other than the defendant, will render any relevant prior statements on that witness producible to the prosecution upon request after the witness testifies on direct.

FED. R. CRIM. P. Rule 26.2 makes the Jencks Act [18 U.S.C. § 3500] a two-way street providing for production of defense witness’ statements in much the same manner as the Jencks Act provided for production of prosecution witness’ statements. The Rule expressly provides that “[A]fter a witness other than the defendant has testified on direct examination” upon motion of the opposing party the court shall order the production of “any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.” FED.

  1. CRIM. P. Rule 26.2; see also US v. Nobles, 422 US 231, 232 (1975); US v. Tarnowski, 583 F.2d 903, 906 (6th Cir. 1978), cert. denied., 440 US 918 (1979).

Rules 5.1 (h), 12i, 32i(2), 32.1(e) and 46j expressly cite the applicability of rule 26.2 at preliminary hearing, suppression hearing, sentencing retraction hearings, bond hearing and hearings on write of Habeas Corpus. Thus making clear that 26.2 requires the production of witness statements at pre-trial proceeding.

SANCTIONS

Rule 26.2, in even stronger language than Rule 16(d)(2), provides that a sanction for failure to comply is that the Court “shall order that the testimony of the witness be stricken from the record and that the trial proceed.” FED. R. CRIM. P. Rule 26.2(e).

See      Taylor v. Illinois, 484 US 400, 108 S.Ct.646, 98 L.Ed.2d 798 (1988) (defense witness was excluded as a sanction for discovery abuse).

It is interesting to note that under Rule 16, the appropriate standard in a particular case is left to the “discretion of the trial court,” see FED. R. CRIM. P. Rule 16(d) Advisory Committee Notes; and “[I]n an unusual case the court might be justified in taking the extreme measure of ordering the prosecution dismissed.” 8 MOORE’S FEDERAL PRACTICE- CRIMINAL RULE

  • 16.05, at 16-64, where the prosecution fails to comply.

While neither Rule 16 nor Brady v. Maryland make provision for discovery of defense witness’ conviction record “rap sheets,” FED. R. CRIM. P. Rule 609 provides for the impeachment use of non-remote prior convictions.

IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME [FED. R. EVID. RULE 609]

(See Federal Rules of Evidence Outline)

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible only if the crime:

  • Was punishable by death or imprisonment in excess of one year

…and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or

  • Involved dishonesty or false statement, regardless of the

REMOTENESS [FED. R. EVID. RULE 609(b)]

A conviction is not admissible if a period of more than ten years has elapsed since the date of the conviction, or release from confinement whichever is later. However, the proponent of said evidence upon notice and a fair opportunity to contest its admission may proffer and the court may admit same where it determines that its probative value outweighs its prejudicial effect.

FINALITY OF CONVICTION [FED. R. EVID. RULE 609(c)]

Pendency of appeal does not render underlying conviction inadmissible for impeachment purposes.

STATE.

In Texas, only final convictions, not on appeal, are admissible for impeachment purposes. Miler v. State, 472 S.W.2d 261 (Tex. Cr. App. 1971). Cf. Poore v. State, 524 S.W.2d 254 (Tex. Cr. App. 1975) (holding that the burden on party offering the witness to show conviction not final).

FEDERAL.

FED. R. EVID. Rule 609(e) provides that the “pendency of an appeal …does not render evidence of a conviction inadmissible.” US v. Rose, 526 F.2d 745 (8th Cir.), cert. denied, 430 US 908 (1977).

DETAILS OF OFFENSE ARE INADMISSIBLE

Tucker v. US, 409 F.2d 1291 (5th Cir. 1969);

US v. Bray, 445 F.2d 178, 182 (5th Cir.), cert. denied. 404 US 1002 (1971).

EFFECT OF PARDON, ANNULMENT OR CERTIFICATION OF REHABILITATION [FED. R. EVID. Rule 609(c)]

DISTINCTION BETWEEN STATE AND FEDERAL:

STATE:

In Texas, if the sentence was suspended and then set aside or probation was granted and the term was successfully completed then the conviction is not admissible for impeachment purposes. TEX. R. CRIM. P. Art. 38.29.

However, a pardon does not render a prior conviction inadmissible for impeachment purposes, Sipanek v. State, 272 SW2d 508 (Tex. Cr. App. 1925); Jones v. State, 147 SW2d 508 (Tex. Cr. App. 1941); unless such pardon is premised upon proof of innocence, Logan v. State, 448 SW2d 462 (Tex. Cr. App. 1969).

FEDERAL:

FED. R. EVID. Rule 609(c) provides that a prior conviction is not admissible for impeachment purposes where:

“(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure … and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.”

US v. Wiggins, 566 F.2d 944 (5th Cir. 1978)(holding defendant apparently has obligation of showing that his release [e.g. from “half-way house”]” …amounted to a finding of rehabilitation”).

Accordingly, while it may be incumbent upon defense counsel to seek discovery of his own witness’ rap sheets to keep from being blindsided, access to such records is limited exclusively to law enforcement agencies. And where divulging a witness’ identity will have no adverse effect, such records may be sought on the grounds that given the prosecution’s inherent investigative advantage, prosecuting authorities have access to such “non reciprocal” information gathering networks creates an unfair imbalance of advantage favoring the prosecution on the grounds that given the Government’s investigative advantage, allowing prosecuting authorities’ access to such “nonreciprocal” information gathering networks creates an unfair imbalance, depriving the defendant of his right to “due process.” Wardius v. Oregon, 412 US 470 (1973).

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