July 2009, Page 38

Trial by Ambush Should Be a Two-Way Street: The Federal Notice-of-Alibi Rule And Mandatory Disclosure Of Defense Witnesses
By W. Carl Lietz III

The phrase “trial by ambush” succinctly and accurately describes what it is often like to defend a criminal case in federal court. Although federal discovery rules require the government to make available documents and other items the government intends to utilize in its case-in-chief at trial, with the exception of expert witnesses, the government is not required to identify the individuals it will call as witnesses at trial.1 Moreover, when the government calls a witness to testify, it is not required to produce prior statements provided by the witness until after the witness testifies.2 Consequently, since many cases in federal court are based primarily upon witness testimony, it is not unusual for a criminal defense attorney to turn to his client after the government calls a witness and ask, “Who is that?”

Many criminal defense attorneys enjoy the fly-by-the-seat-of-your-pants experience that this scenario provides. It is challenging. It can be exciting. And in the end, it makes them better lawyers. On the whole, however, “trial by ambush” is not helpful to the people lawyers represent. And in the end, they are the ones that pay the price.

Federal Rule of Criminal Procedure 12.1 is an exception to the general rule that “trial by ambush” is permissible in federal court. Under Rule 12.1, entitled “Notice of an Alibi Defense,” the accused is required to provide the government with, among other things, “the name, address, and telephone number of each alibi witness on whom he intends to rely” at trial.3 Importantly, the accused is required to make this disclosure in the absence of any prior disclosure by the government of the witnesses it will rely upon at trial. Moreover, although the government is required to provide the identity of those witnesses it will rely upon to rebut the alibi defense, it is not required to provide the defendant with the identity of any of the other witnesses it intends to call at trial.

In most jurisdictions, the accused is required to comply with the requirements of the notice-of-alibi provisions well in advance of trial. If he fails to provide the government with these particulars in a timely manner, the “court may exclude the testimony of any undisclosed witness regarding the defendant’s alibi.”4

Mandated disclosure of the particulars of an individual’s defense raises a host of interesting questions. The most obvious and troubling question is the issue of fairness. Why should a defendant be required to identify witnesses and other particulars that he will utilize to support a defense when the government is not required to identify all of the witnesses that it will call to prove its case?

An examination of this question reveals that, initially, it was not meant to be that way. Indeed, when the Supreme Court transmitted Rule 12.1 to Congress in 1974, it also proposed substantial amendments to Federal Rule of Criminal Procedure 16. Under those proposed amendments to Rule 16, the government would have been required to provide the defendant with the names and addresses of the individuals that it intended to call as witnesses during its case-in-chief.5 The proposed amendments to Rule 16, however, never became law. Days before the effective date of those amendments, Congress stepped in and suspended the effective date of the Court’s proposals, so that it could have adequate time in which to study the Court’s proposed changes.6 Around one year later, Congress passed the Federal Rules of Criminal Procedure Amendments Act of 1975.7 But before passage of this Act, Congress eliminated the provisions within Rule 16 that required the government to disclose the names and addresses of the witnesses it intended to call.8

Rule 12.1 has been in existence for over 30 years. As of yet, though, no court has issued a published opinion addressing the important and fundamental question of whether it is constitutionally permissible for the government to require a defendant to disclose the identify of an alibi witness, and at the same time refuse to disclose the identity of non-alibi-related witnesses it will rely upon to prove its case.9 However, two Supreme Court cases interpreting state notice of alibi rules strongly suggest that, in the absence of the unenacted provisions to Rule 16 that would have required the government to disclose its own list of witnesses, Rule 12.1 cannot survive constitutional scrutiny.

Supreme Court Law on Notice-of-Alibi Rules
The constitutionality of notice-of-alibi rules has been addressed by the Supreme Court in two cases. First, in Williams v. Florida, the Court was confronted with Florida’s notice-of-alibi-rule, Rule 1.200 of the Florida Rules of Criminal Procedure.10 Like the federal rule that was enacted years later, Rule 1.200 required the accused “to furnish the prosecuting attorney with information as to the place where he claims to have been and with the names and addresses of the alibi witnesses he intends to use.”11 Similarly, like its federal counterpart, after receiving this information, the state was “required to notify the defendant of any witnesses it propose[d] to offer in rebuttal of that defense.12

The defendant in Williams argued that Florida’s notice-of-alibi rule was impermissible for two reasons. Williams first claimed that the rule “deprived him of due process” and a fair trial.13 In addition, he argued that the rule compelled him “to be a witness against himself contrary to the commands of the Fifth and Fourteenth Amendments. …”14 The Court rejected both arguments. As discussed below, however, the comments made by the Court in connection with the due process argument provide strong support for the argument that the federal notice of alibi rule cannot survive constitutional scrutiny.

Three years after Williams, the Court issued its decision in Wardius v. Oregon.15 According to the Court, Wardius involved “important questions concerning the right of a defendant forced to comply with a ‘notice-of-alibi’ rule to reciprocal discovery.”16 Unlike in Williams, although the Oregon statute at issue in Wardius required a defendant to provide the state with notice of an alibi defense, on its face, the Oregon statute “made no provision for reciprocal discovery.”17

Unanimously, the Court held that the Oregon rule could not survive constitutional scrutiny. According to the Court, “the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal rights are given to criminal defendants.”18 Therefore, “[s]ince the Oregon statute did not provide for reciprocal discovery, it was error for the court below to enforce it against petitioner,” and as a result, the Court reversed the conviction of Ronald Wardius.19 As with Williams, comments made by the Court in Wardius provide further support that Rule 12.1 cannot survive due process scrutiny.

The Enactment of Rule 12.1 and the Proposed Amendments to Rule 16
On April 22, 1974, less than one year after the decision in Wardius, the chief justice, pursuant to an order of the U.S. Supreme Court, transmitted proposed amendments to the Federal Rules of Criminal Procedure to Congress.20 In total, the proposed amendments made changes in 10 existing rules and created three new rules.21 Among the new rules, the proposed amendments included the creation of a notice-of-alibi rule, Rule 12.1.22
Before the proposal of Rule 12.1 in 1974, previous attempts had been made to enact a notice-of-alibi rule. For example, in both the Preliminary Draft and the Second Preliminary Draft of the Federal Rules of Criminal Procedure in 1943 and 1944, respectively, the Advisory Committee proposed a notice-of-alibi rule.23 On both occasions, however, “the Advisory Committee was closely divided upon whether there should be a rule at all and, if there were to be a rule, what the form of the rule should be.”24 Although the Advisory Committee ultimately submitted two alternative rule proposals to the Court, the Court rejected both proposals.25

In 1962, the Advisory Committee once again drafted a notice-of-alibi rule and included it in its Preliminary Draft of proposed amendments to the criminal rules. The proposed rule was not enacted, however, because the Advisory Committee withdrew the rule without submitting it to the Standing Committee on Rules of Practice and Procedure.26 On this occasion, criticism “centered on constitutional questions and questions of general fairness to the defendant.”27 According to one commentator, some critics “questioned the desirability of requiring a notice of alibi and concluded that … such a notice invaded the Fifth Amendment privilege against self incrimination and was fundamentally unfair to defendants.”28

When it proposed Rule 12.1 in 1971, the Advisory Committee attempted to address some of these previously raised fairness concerns by liberalizing the discovery provisions of Rule 16. Indeed, along with the addition of Rule 12.1, the Advisory Committee proposed to amend Rule 16 to expand greatly a defendant’s right of discovery. Specifically, the proposed amendments to Rule 16 “enlarge[d] the scope of the defendant’s discovery to include a copy of his prior criminal record and a list of the names and addresses, plus record of prior felony convictions, of all witnesses the prosecution intend[ed] to call during its case-in-chief.”29

In April 1974, the Supreme Court transmitted to Congress Rule 12.1, the amendments to Rule 16, and other amendments to the Federal Rules of Criminal Procedure.30 As proposed, these additions to the rules were to take effect on August 1, 1974.31 Several days before the effective date, however, Congress stepped in and postponed the effective date of the Court’s proposals until August 1, 1975.32

In Congress, the question of whether to permit discovery of witness lists was extensively debated.33 The House narrowed the Supreme Court’s proposal by requiring that the witness lists be turned over three days prior to trial.34 “The House believed that this, coupled with the prosecutor’s ability under Rule 16(d)(1) to get an ex parte protective order permitting him not to disclose the identity of a witness, met the legitimate concern about the safety of witnesses.”35 The Senate, however, struck the witness list provision altogether.36 And ultimately, the House-Senate conference committee adopted the Senate position.37 According to the Conference Report addressing this issue:
    A majority of the conferees believe it is not in the interest of the effective administration of criminal justice to require that the government or the defendant be forced to reveal the names and addresses of its witnesses before trial. Discouragement of witnesses and improper contact directed at influencing their testimony were deemed paramount concerns in the formulation of this policy.38

Despite the elimination of the proposed witness disclosure provisions within Rule 16, Congress allowed Rule 12.1 to become effective. Apparently, Congress believed that it did not offend the “effective administration of criminal justice” to require the accused to divulge the particulars of his defense.

Interestingly, after the removal of the witness disclosure provisions within Rule 16, a member of the House of Representatives who played a major part in the congressional action on the amendments raised the question of whether Rule 12.1 would survive constitutional scrutiny in light of the decision by Congress to remove the witness disclosure provisions of Rule 16. In an article published in the October 1975 ABA Journal, William L. Hungate, the Chair of the Judiciary Committee’s Subcommittee on Criminal Justice, stated that “[t]he question thus arises, because of the decision not to permit discovery of witness lists, whether the Federal Rules of Criminal Procedure now give a defendant adequate discovery rights.”39 Although Rep. Hungate did not explicity express a view on this issue, he stated that “[t]he Supreme Court suggested in footnote 9 in Wardius that it has high standards when evaluating adequacy. …”40 And as discussed below, a review of both Williams and Wardius strongly suggests that in the absence of the unenacted witness disclosure provisions of Rule 16, Rule 12.1 simply cannot survive constitutional scrutiny.41

Rule 12.1 Does Not Comply With Williams Or Wardius

With respect to the due process argument in Williams, the Court noted that it “need not linger over the suggestion that the discovery permitted the state against petitioner … deprived him of due process or a fair trial.”42 However, in reaching this conclusion, the Court premised its holding on the following two grounds: “Florida law provides for liberal discovery by the defendant against the state, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant.”43

In connection with the first ground offered in support of the holding in Williams — the fact that Florida law provided the accused with “liberal discovery by the defendant against the state” — the Court cited Florida Rule of Criminal Procedure 1.220.44 Among other things, Rule 1.220 required the prosecuting attorney to provide the accused with the names and addresses of the witnesses supplying the basis for the charge, as well as “a list of all witnesses known … to have information which may be relevant to the offense charged and to any defense of the person charged with respect thereto.”45 Thus, in addition to the reciprocity of disclosure required within the alibi disclosure provisions themselves, a defendant in Florida was entitled to much more, including the names of other witnesses through whom the state intended to prove its case. Given the breadth of discovery to which a defendant in Florida was entitled, it is no wonder that the Court concluded that “Florida law provides for liberal discovery by the defendant against the state.” Furthermore, as Rep. Hungate noted in his article, with respect to the constitutionality of other notice-of-alibi rules, the Court in Williams was careful to point out that it did “not, of course, decide that each of these alibi-notice provisions is necessarily valid in all respects; that conclusion must await a specific context and an inquiry, for example, into whether the defendant enjoys reciprocal discovery rights against the state.”46

Like Williams, Wardius also focused on the importance of affording the accused broad discovery rights. Indeed, the Court in Wardius began by recognizing that “[n]otice-of-alibi rules … are based on the proposition that the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial.”47 The Court further recognized that “[t]he growth of such discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system.”48 Although “nothing in the Due Process Clause precludes states from experimenting with systems of broad discovery designed to achieve these goals[,]” the “adversary system of trial is hardly an end in itself: it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played.”49 Furthermore, with respect to its holding, the Wardius Court reinforced the two factors upon which the Williams Court premised its decision:
    Although the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded …, it does speak to the balance of forces between the accused and his accuser. The Williams Court was therefore careful to note that Florida law provides for liberal discovery by the defendant against the state, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant. The same cannot be said of Oregon law. As the state conceded at oral argument …, Oregon grants no discovery rights to criminal defendants, and, indeed, does not even provide defendants with bills of particulars. More significantly, Oregon, unlike Florida, has no provision which requires the state to reveal the names and addresses of witnesses it plans to use to refute an alibi defense.50

Given the plain language from Williams and Wardius, there can be no doubt of the significance that “liberal discovery by the defendant against the state” plays in the due process inquiry. Although each decision discussed the importance of reciprocity of disclosure within the notice-of-alibi rules at issue, the holding in each case was much broader, focusing on other discovery provisions and “the balance of forces between the accused and his accuser.”51 As Rep. Hungate noted when he questioned whether the Federal Rules of Criminal Procedure provide adequate reciprocal discovery rights: “The Supreme Court suggested in footnote 9 in Wardius that it has high standards when evaluating adequacy: ‘Indeed, the state’s inherent information gathering advantages suggest that if there is to be any imbalance in discovery rights, it should work in the defendant’s favor.’”52
Significantly, when it proposed to add Rule 12.1, the Advisory Committee was keenly aware of the Court’s then-recent decision in Williams. The Advisory Committee believed, however, that Rule 12.1 would survive a constitutional challenge because of the substantially enlarged discovery rights to which a defendant was entitled under the proposed amendments to Rule 16:
    Doubts about the constitutionality of a notice-of-alibi rule were to some extent resolved by Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L.Ed.2d 446 (1970). In that case the Court sustained the constitutionality of the Florida notice-of-alibi statute, but left unresolved two important questions.

    (1) The court said that it was not holding that a notice-of-alibi requirement was valid under conditions where a defendant does not enjoy reciprocal discovery against the state. 399 U.S. at 82 n.11, 90 S. Ct. 1893. Under the revision of Rule 16, the defendant is entitled to substantially enlarged discovery in federal cases, and it would seem appropriate to conclude that the rules will comply with the reciprocal discovery qualifications of the Williams decision.
    . . .
    Rule 12.1 will serve a useful purpose even though Rule 16 now requires disclosure of the names and addresses of government and defense witnesses.53

As noted, the “substantially enlarged discovery” to which the accused would have been entitled under Rule 16 never became a reality. Thus, one can no longer credibly contend that “the rules will comply with the reciprocal qualifications of the Williams decision.”

By eliminating the proposed witness disclosure provisions within Rule 16, Congress created the very system that Williams and Wardius condemned. In both of these cases, the Court made clear that in order for a notice-of-alibi rule to survive constitutional scrutiny, “discovery must be a two-way street.”54 Without the witness disclosure provisions of Rule 16, discovery in federal court is not a “two-way street.” Under the current system, in case after case, the government is permitted to call witnesses without providing the accused with any notice at all. However, whenever an individual intends to present an alibi defense, he must provide the government with the identity of the witnesses that he will utilize to support that defense, well in advance of trial. This system is not only fundamentally unfair but, under Williams and Wardius, it is also constitutionally improper. As the Court noted in Wardius, “[t]he state may not insist that trials be run as a search for truth so far as defense witnesses are concerned, while maintaining poker game secrecy for its own witnesses.”55 Again, “trial by ambush” can be challenging. It can be exciting. And in the end, it makes better lawyers. Based on Williams and Wardius, however, “trial by ambush” should be a “two-way street.”

Notes
1. See Fed. R. Crim. P. 16(a).
2. See Fed. R. Crim. P. 26.2.
3. See Fed. R. Crim. P. 12.1(a)(2).
4. See Fed. R. Crim. P. 12.1(e).
5. The rules transmitted by the Court are reprinted at 62 F.R.D. 271.
6. W.L. Hungate, Changes in the Federal Rules of Criminal Procedure, 61 A.B.A.J. 1203 (1975).
7. Id. (citing Pub. L. 94-64).
8. W.L. Hungate, Changes in the Federal Rules of Criminal Procedure, 61 A.B.A.J. 1203, 1204 (1975).
9. Cases do exist in which courts have addressed the issue of whether Rule 12.1 compels the defendant to provide the government with information in violation of the Fifth Amendment privilege against self-incrimination. See, e.g., United States v. White, 750 F.2d 726, 728 (8th Cir. 1984).
10. 399 U.S. 78, 79 (1970).
11. Id. at 79.
12. Id. at 80.
13. Id. at 81.
14. Id. at 82.
15. 412 U.S. 470 (1973).
16. Id. at 471.
17. Id. at 472.
18. Wardius, 412 U.S. at 472.
19. Id. (footnote omitted).
20. See 62 F.R.D. 271.
21. W.L. Hungate, Changes in the Federal Rules of Criminal Procedure, 61 A.B.A.J. 1203, 1204 (1975).
22. 62 F.R.D. at 292-93.
23. See Fed. R. Crim. P. 12.1 advisory committee note.
24. Id. (citing Orfield, The Preliminary Draft of the Federal Rules of Criminal Procedure, 22 Texas L. Rev. 37, 57-58 (1943)).
25. Id. (citing Epstein, Advance Notice of Alibi, 55 Crim. L., C.&P.S. 29, 30 (1964)).
26. Id. (citing Wright, Proposed Changes in Federal, Civil, Criminal, and Appellate Procedure, 35 F.R.D. 317, 326 (1964)).
27. Id. (citing Everett, Discovery in Criminal Cases — In Search of a Standard, Duke L.J. 477, 497-499 (1964)).
28. Id. at 497.
29. H.R. Rep. No. 94-247, 1975 U.S.C.C.A.N. 674, 684 (1975) (Conf. Rep.).
30. 62 F.R.D. 271-328.
31. Id. at 271.
32. W.L. Hungate, Changes in the Federal Rules of Criminal Procedure, 61 A.B.A.J. 1203 (1975); Pub. L. No. 93-361, 88 Stat. 397 (July 30, 1974).
33. Id. at 1205.
34. Id.
35. Id.
36. Id.
37. Id.
38. H.R. Rep. No. 94-414, 1975 U.S.C.C.A.N. 713, 716 (1975) (Conf. Rep.).
39. W.L. Hungate, Changes in the Federal Rules of Criminal Procedure, 61 A.B.A.J. 1203, 1205 (1975).
40. Id.
41. Victor Kelley, a colleague and friend who represents individuals in the military justice system, pointed out that in the military justice system the defense is likewise required to notify the prosecutor of its intent to offer the defense of alibi. However, any unfairness in causing the defense to disclose the defense of alibi is subsumed by the greater language and protections of the rule which requires the government to produce, inter alia, the names and addresses of the witnesses “the trial counsel intends to call: (A) in the prosecution case-in-chief; and (B) to rebut a defense of alibi … .” RCM 701(a)(3).
42. Williams, 399 U.S. at 81.
43. Id. at 81 (emphasis added) (internal footnote omitted).
44. 399 U.S. at 82 n.9.
45. See In re Florida Rules of Criminal Procedure, 196 So.2d 124 (March 1, 1967), Florida Rule of Criminal Procedure 1.220(e).
46. W.L. Hungate, Changes in the Federal Rules of Criminal Procedure, 61 A.B.A.J. 1203, 1205 (1975).
47. Wardius, 412 U.S. at 473 (internal footnote and citation omitted) (emphasis added).
48. Id. at 474 (emphasis added).
49. Id. (emphasis added).
50. Id. at 474-75 (internal citations and footnotes omitted).
51. Id. at 474.
52. W.L. Hungate, Changes in the Federal Rules of Criminal Procedure, 61 A.B.A.J. 1203, 1205 (1975) (quoting Wardius, 412 U.S. at 475 n.9).
53. See Fed. R. Crim. P. 12.1 advisory committee’s note.
54. Wardius, 412 U.S. at 475 (internal citations omitted).
55. Id. at 476.


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