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AMENDMENTS TO RULE FED. R. CRIM. P. 12.2

consensual or compelled mental examination inadmissible, but “no testimony by the expert based upon such statement” or “other fruits of the statement shall be admitted in evidence against the defendant in any criminal proceeding except on an issue respecting mental condition on which the defendant has introduced testimony.” FED. R. CRIM. P. Rule 12.2( c).

 

Subsection (e) has been added which provides that when a defendant withdraws his notice of intention to rely on an insanity defense or to introduce expert testimony as to his mental condition, same “is not admissible in any civil or criminal proceeding against the person who gave notice of the intention” to introduce same. FED. R. CRIM. P. Rule 12.2(e).

 

Notice of Defense of Governmental Authority:

FED. R. CRIM. P. Rule 12.3 requires the defendant to notify the government, at the time motions are due, if he intends to raise the defense of “actual or believed exercise of public authority.” The notice must also contain the name of the person giving the authority, and the period of time during which the authority was granted. Failure to comply with the rule may result in the Court striking the witnesses supporting the defense.

It is arguable that this Rule, unlike the other notice-of-defense rules, constitutes non- reciprocal discovery in violation of Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L.Ed.2d 82 (1973), because the only “reciprocal duty” initially imposed on the government is that it admit or deny that the authority existed. Such a meager concession probably “does not approach the sort of reciprocity with which due process demands.” Wardius, 412 U.S. at 480 (holding that a provision requiring the prosecution to provide the defendant with the time and place the offense is alleged to have occurred, in response to the defendant’s notice of alibi defense, was insufficiently reciprocal).

However, under the rule, the government may choose to request that the defendant disclose the names of the witnesses supporting the defense. Rule 12.3(a)(2). If it does so, the Government must then disclose its rebuttal witnesses. Should the government choose this path, therefore, the non-reciprocal discovery arguments probably become moot.

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