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NOTES TO RULE 26.2

NOTES OF ADVISORY COMMITTEE ON RULES - 1979

S. 1437, 95th Cong., 1st Sess. (1977), would place in the criminal rules the substance of what is now 18 U.S.C. § 3500 (the Jencks Act). Underlying this and certain other additions to the rules contemplated by S. 1437 is the notion that provisions which are purely procedural in nature should appear in the Federal Rules of Criminal Procedure rather than in Title 18. See Reform of the Federal Criminal Laws, Part VI: Hearings on S. 1, S. 716, and S. 1400, Subcomm. on Criminal Laws and Procedures, Senate Judiciary Comm., 93rd Cong., 1st Sess. (statement of Judge Albert B. Maris, at page 5503). Rule 26.2 is identical to the S.1437 rule except as indicated by the marked additions and deletions.  As those changes show, rule 26.2 provides for production of the statements of defense witnesses at trial in essentially the same manner as is now provided for with respect to the statements of government witnesses.  Thus, the proposed rule reflects these two judgments: (i) that the subject matter - production of the statements of witnesses - is more appropriately dealt with in the criminal rules; and (ii) that in light of United States v. Nobles, 422 U.S. 225 (1975), it is important to establish procedures for the production of defense witnesses' statements as well.  The rule is not intended to discourage the practice of voluntary disclosure at an earlier time so as to avoid delays at trial.

In Nobles, defense counsel sought to introduce the testimony of a defense investigator who prior to trial had interviewed prospective prosecution witnesses and had prepared a report embodying the essence of their conversation.  When the defendant called the investigator to impeach eyewitness testimony identifying the defendant as the robber, the trial judge granted the prosecutor the right to inspect those portions of the investigator's report relating to the witnesses' statements, as a potential basis for cross-examination of the investigator.  When the defense declined to produce the report, the trail judge refused to permit the investigator to testify.  The Supreme Court unanimously upheld the trail court's actions, finding that neither the Fifth nor Sixth Amendments nor the attorney work product doctrine prevented disclosure of such a document at trial.  Noting "the federal judiciary's inherent power to require the prosecution to produce the previously recorded statements of its witnesses so that the defense may get the full benefit of cross-examinations and the truth-finding process may be enhanced," the Court rejected the notion "that the Fifth amendment renders criminal discovery 'basically a one-way street,' " and thus concluded that "in a proper case, the prosecution can call upon that same power for production of witness statements that facilitate 'full disclosure of all the (relevant) facts.' "

The rule, consistent with the reasoning in Nobles, is designed to place the disclosure of prior relevant statements of a defense witness in the possession of the defense on the same legal footing as is the disclosure of prior statements of prosecution witnesses in the hands of the government under the Jencks Act, 18 U.S.C. § 3500 (which S. 1437 would replace with the rule set out therein). See United States v. Pulvirenti, 408 F.Supp. 12 (E.D.Mich. 1976), holding that under Nobles "(t)he obligation (of disclosure) placed on the defendant should be the reciprocal of that placed upon the government * * * (as) defined by the Jencks Act." Several state courts have likewise concluded that witness statements in the hands of the defense at trial should be disclosed on the same basis that prosecution witness statements are disclosed, in order to promote the concept of the trail as a search for truth.  See, e.g., People v. Sanders, 110 Ill.App.2d 85, 249 N.E.2d 124 (1969); State v. Montague, 55 N.J. 371, 262 A.2d 398 (1970); People v. Damon, 24 N.Y.2d 256, 299 N.Y.S.2d 830, 247 N.E.2d 651 (1959).

The rule, with minor exceptions, makes the procedure identical for both prosecution and defense witnesses, including the provision directing the court, whenever a claim is made that disclosure would be improper because the statement contains irrelevant matter, to examine the statements in camera and excise such matter as should not be disclosed.  This provision acts as a safeguard against abuse and will enable a defendant who believes that a demand is being improperly made to secure a swift and just resolution of the issue.

The treatment as to defense witnesses of necessity differs slightly from the treatment as to prosecution witnesses in terms of the sanction for a refusal to comply with the court's disclosure order.  Under the Jencks Act and the rule proposed in S. 1437, if the prosecution refuses to abide by the court's order, the court is required to strike the witness's testimony unless in its discretion it determines that the more serious sanction of a mistrial in favor of the accused is warranted.  Under this rule, if a defendant refuses to comply with the court's disclosure order, the court's only alternative is to enter an order striking or precluding the testimony of the witness, as was done in Nobles.

Under subdivision (a) of the rule, the motion for production may be made by "a party who did not call the witness." Thus, it also requires disclosure of statements in the possession of either party when the witness is called neither by the prosecution nor the defense but by the court pursuant to the Federal Rules of Evidence. Present law does not deal with this situation, which consistency requires be treated in an identical manner as the disclosure of statements of witnesses called by a party to the case.

NOTES OF ADVISORY COMMITTEE ON RULES - 2002 AMENDMENT

The language of Rule 26.2 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules.  These changes are intended to be stylistic only, except as noted below.

Current Rule 26.2(c) states that is the court withholds a portion of a statement, over the defendant's objection, "the attorney for the government" must preserve the statement.  The Committee believed that the better rule would be for the court to simply seal the entire statement as a part of the record, in the event that there is an appeal.

Also, the terminology in Rule 26.2(c) has been changes.  The rule now speaks in terms of a "redacted" statement instead of an "excised" statement.  No change in practice is intended.

Finally, the list of proceedings in Rule 26.2(g) has been placed in rule-number order.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

New subdivision (g) recognizes other contemporaneous amendments in the Rules of Criminal Procedure which extend the application of Rule 26.2 to other proceedings.  Those changes are thus consistent with the extension of Rule 26.2 in 1983 to suppression hearings conducted under Rule 12. See Rule 12(i).

In extending Rule 26.2 to suppression hearings in 1983, the Committee offered several reasons.  First, production of witness statements enhances the ability of the court to assess the witnesses' credibility and thus assists the court in making accurate factual determinations at suppression hearings.  Second, because witnesses testifying at a suppression hearing may not necessarily testify at the trial itself, waiting until after a witness testifies at trial before requiring production of that witness's statement would be futile.  Third, the Committee believed that it would be feasible to leave the suppression issue open until trial, where Rule 26.2 would then be applicable.  Finally, one of the central reasons for requiring production of statements at suppression hearings was the recognition that by its nature, the results of a suppression hearing have a profound and ultimate impact on the issues presented at trial.

The reasons given in 1983 for extending Rule 26.2 to a suppression hearing are equally compelling with regard to other adversary type hearings which ultimately depend on accurate and reliable information.  That is, there is a continuing need for information affecting the credibility of witnesses who present testimony.  And that need exists without regard to whether the witness is presenting testimony at a pretrial hearing, at a trial, or at a post-trial proceeding.

As noted in the 1983 Advisory Committee Note to Rule 12(i), the courts have generally declined to extend the Jencks Act, 18 U.S.C. § 3500, beyond the confines of actual trial testimony.  That result will be obviated by the addition of Rule 26.2(g) and amendments to the Rules noted in that new subdivision.

Although amendments to Rules 32, 32.1, 46, and Rule 8 of the Rules Governing Proceedings under 28 U.S.C. § 2255 specifically address the requirement of producing a witness's statement, Rule 26.2 has become known as the central "rule" requiring production of statements.  Thus, the references in the Rule itself will assist the bench and bar in locating other Rules which include similar provisions.

The amendment to Rule 26.2 and the other designated Rules is not intended to require production of a witness's statement before the witness actually testifies.

Minor conforming amendments have been made to subsection (d) to reflect that Rule 26.2 will be applicable to proceedings other than the trial itself.  And language has been added to subsection (c) to recognize explicitly that privileged matter may be excised from the witness's prior statement.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical.  No substantive change is intended.

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