May 2, 1975: Memorandum in Support of Defense's Motion for
Discovery and Inspection of Documents
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA, plaintiff
Criminal No. 75-26-CR-3
JEFFREY R. MACDONALD, defendant
The defendant's Motion for Discovery should be considered in light of the following extraordinary facts. Since the murders of Colette, Kimberly [sic] and Kristen MacDonald in February of 1970, the Government has had discovery of the defendant's case that is without parallel in reported decisions. This extraordinary discovery by the Government has occurred over the past five years because the defendant, Jeffrey R. MacDonald, has voluntarily responded to every legitimate request that has been made of him for records, papers, reports and physical evidence.
From the Article 32 investigation in 1970, through the Grand Jury proceedings in 1974-75, the defendant has given information and discovery to the Government in their investigation of the killings of his family. The Government is now being asked to make information available to the defendant.
The defendant has given the Government his medical and psychiatric reports and records, which would otherwise have been unavailable to it as privileged information.
During the Article 32 investigation Dr. MacDonald voluntarily testified, even though he had the right to refuse.
Dr. MacDonald testified on two occasions, for six days before the United States Grand Jury for the Eastern District of North Carolina.
In addition to his testimony, the defendant voluntarily turned over to the Government physical evidence which was in his possession.
The Government has been able to learn of and hear, during the Article 32 proceeding, the testimony of defendant's then known witnesses.
During the 1971-72 reinvestigation of this case by the Criminal Investigation Division of the United States Army, Dr. MacDonald agreed to be interviewed by Government investigators. The Government, at that time, had no subpoena power, or any power to compel the defendant to answer questions. However, Dr. MacDonald voluntarily agreed to be interviewed.
Clearly, the Government has had the superior opportunity for discovery and has taken every possible occasion to avail itself of this information. Unless the defendant is given a reciprocal opportunity, he will be placed at an enormous disadvantage in attempting to prepare his defense.
The Court should take cognizance of the disparity in the relative power of the Government and of the defendant to obtain evidence without utilizing the discovery rules: the Government has the power to make searches and seizures for evidence; it has the power to convene a Grand Jury and to subpoena witnesses before it; the United States Attorney, has all the scientific and investigative resources of the Justice Department and various federal, state, and local law enforcement agencies.
This is to be contrasted with the circumstances of the defendant. He is limited by his own financial resources and to the voluntary cooperation of witnesses with him. Additionally, the defendant has been used by the Government in this case. Not only have his witnesses been subjected to interrogation by the prosecution before the Grand Jury, but they will be subjected to interrogation by the prosecution before trial through the Federal Bureau of Investigation.
In effect, the testimony presented before the United States Grand Jury was a deposition being conducted by the prosecution, without the presence of the defendant's counsel.
These factors and others have placed Dr. MacDonald at a substantial disadvantage. The discovery presently sought by the defendant will serve to partially minimize this disparity.
I. STATEMENTS OF DEFENDANT
Federal Rule of Criminal Procedure 16(a)(1) states:
Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph any relevant (l)written or recorded statements or confessions made by the defendant, or copies thereof, 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 the government.
In United States v. Projansky, 44 F.R.D. 550, 552, (S.D.N.Y. 1968) Judge Frankel held that Rule 16(a)(1) required that: "Defendants. should routinely be given documents like those here in question, (i.e., statements by the defendants) without any special showing of any kind, unless the Government can demonstrate some particularized and substantial reasons why this should not be allowed in a particular case".
The same construction of 16(a)(1), was later given in United States v. Isa, 413 F. 2nd 244 (C.A. 7th 1969)
Rule 16(a), unlike Rule (b) (which deals with other books, papers documents and tangible object), requires no showing of materiality or reasonableness by the defendant in order to obtain discovery of his own words. Absent extraordinary circumstances he is entitled to them. Although the rule uses the words "may order", it is nevertheless clear that the language of 16(a) merely means that discovery is not "routine and inescapable." This is so because it is subject to the protective order provisions of Rule 16(a). There are powerful considerations which argue strongly in favor of discovery of a defendant's own statements: such statements are evidentiary in nature; may be used as evidence against him; they may give the defendant's lawyer important investigative leads; and, a defendant cannot make an informed decision whether to testify without knowing their content.
The Projansky view that Rule 16(a)(1) requires no special showing of any kind in order for a defendant to obtain his own statements is clearly the majority view. See United States v. Crisona, 416 F. 2nd 107, 115 (C.A. 2d 1969; United States_v. Rosenfeld, 264 F. Supp 760, 763-764 (N.D. 111. 1967); United States v. Burgio, 279 F. Supp. 843, 846 (S.N.NY. 1968)Y; Unites States v. Isa, supra.
In addition, the Proposed Amendments to the Federal Rules of Criminal Procedure, 1. 62 F.R.D. 271, which become effective August 1, 1975, further emphasize the need to grant broad discovery to the defendant.
I. The proposed amendments were transmitted to Congress on April 22, 1974 by the Chief Justice of the United States pursuant to an order of the Supreme Court of the United States. Subsequently, on July 30 the President signed a bill, Pub. 2. 93-361, 88 Stat. 397 which mandates that the above proposed amendments will become law on August 1, 1975 -- only three months and two days from the filing of this memorandum.
Proposed Rule 16.(a)(1)(A) provides that, "Upon request of a defendant the Government shall permit the defendant to inspect and copy or photograph; any relevant written or recorded statements made by the defendant...." In the Advisory Committee Note to this amendment, the Committee explains that the rule makes disclosure of a defendant's statements mandatory under the circumstances prescribed in Subdivision (a)(1)(A). According to the Committee, "This is done in the view that broad discovery contributes to the fair and efficient administration of criminal justice by providing the defendant with enough information to make an informed decision as to plea; by minimizing the undesirable effect of surprise at the trial; and by otherwise contributing to an accurate determination of the issue of guilt or innocence" 62 F.R.D. 308.
The American Bar Association, Standards Relating to Discovery and Procedure Before Trial, (Approved Draft 1970) go even further than the amendment in approving discovery of defendant's statements. The ABA Standards mandate the prosecutor to make the required disclosure even though not requested to do so by defendant. ABA Standards Section 1.2. Clearly, the modern trend, as set out in Projansky, in the Proposed Amendments to the Federal Rules of Criminal Procedure, and the American Bar Association's Standards, is to compel courts to provide the defendant with virtually an absolute right to discovery of his own statements. This right is subject only to the prosecution's right, on a sufficient showing, to obtain a protective order under Rule 16(e).
A. TYPES OF STATEMENTS BY DEFENDANT DISCOVERABLE:
The varieties of defendant's statements discoverable under Rule 16(a)(I) are virtually unlimited. In United States v. Federman the Court described what the term "statements" encompassed
"Anything in writing or recorded by, or with knowledge of, defendant wherein be directly, implied or even remotely recited or accounted or mentioned anything whatsoever having bearing --- no matter how slight --- upon the crime charged regardless of whether its nature may be construed as against his interest or exculpatory or capable of differing interpretations or even saturated with ambiguity. In short, the criterion is the equivalent in writing of what defendant had to say -- no matter how he said it -- with respect to the crime charged." United States v. Federman, 41 F.R.D. 339, 341 (S.L.W.Y. 1967).
In other words, no matter what the form of the statement, if it is relevant to the crime charged the defendant is entitled to it. It is of no matter whether the contents of the statement are inculpatory or exculpatory. The statement need not be a confession or an admission of the elements of the offense. All that is required is that it be the defendant's words.
The defendant's statements over the telephone to and recorded by Mr. Alfred Kassab his former father-in-law, are also discoverable if the statements have been turned over to the Government. Statements made by a defendant which are discoverable under Rule 16(a)(1) are not limited to statements made to agents of the Government. United States v. Feinberg, 371 F. Supp. 1205 (N.D. 111. 974); United States v. Crisona, 416 F. 2d 107 (C.A.2d 1969); United States v. Villa, 370 F. Supp. 515 (D. Conn. 1974). Any statement, to whomever made, is discoverable if it is otherwise within the Rule. The Notes of the Advisory Committee to the present Rule 16 demonstrate that there was no intent to restrict discovery to only those statements of the defendant made to agents of the Government. "The Notes make no suggestion of such a restriction. They relieve the defendant of any obligation to designate particular statements because he may not always be aware that his statements....are being recorded," United States v. Feinberg, supra. at 1211.
The statement need not be made after the arrest of the defendant in order to be discoverable, if the statement is otherwise within the Rule. United States v. Tsa, supra. This section provides for discovery of any oral statements made by defendant which have been recorded by mechanical, electrical or any other means. United States v. Bryant, 439 F. 2d 642 (C.A.D.C. 1971); United States v. Holmes, 452 F. 2d 249 (C.A. 7th 1971); United States v. Lubompski, supra., "Even more than formal statements, surreptitiously recorded" statements will be difficult for the defendant to reconstruct from memory and will often, as here, be most central to his fate at trial." United States v. Bryant, supra., at 649.
Under Rule 16(b)(1) there is no necessity for the statement to be substantially verbatim or contemporaneous. As stated in United States v. Federman, supra., a defendant is entitled to the equivalent in writing of what he had to say regarding the crime charged and irregardless of how he said it. This would include an oral statement of the defendant which was recited or summarized in an investigative report or the notes of a Government investigator. United States v. Feinberg, supra., United Slates v. Morrison, 43 F.R.D. 516 (N.D. 111. 1967); United States v. Pilnick, 267 F. Supp. 791 (S.D.F.Y. 1967); United States v. Scherf, 267 F. Surp. 19 (S.D.N.Y. 1967). Even notes of interviews, setting forth defendant's statements at length, are not considered exempt as "internal government documents". Any recorded summary of statements attributed to the defendant and in the possession, custody or control of the Government is, therefore, covered by Rule 16(a)(1), not Rule 16(b). United States v. Scharf, supra.
In United States v. Morrison, supra., the defendant made several oral statements to federal agents which were incorporated in written interview reports some time after the conclusion of the interviews. The Government refused to make these reports available to the defendant on the ground that the reports did not constitute "statements or confessions made by the defendant" under Rule 16(a)(I). The Court held to the contrary:
... the spirit of Rule 16(a)(1) could easily be evaded if the government were able to conceal these reports from defendant. Rule 16 was designed to liberalize the court's powers in regard to the grant of pretrial discovery.
Were we to deny a request for this material, we can foresee the day when Government agents would make it their practice to summarize their interviews, rather than recording them verbatim, in an effort to avoid discovery. The philosophy underlying Rule 16, in our judgment, applies equally to verbatim statements and summaries thereof." United States v. Morrison, supra., at 519.
The work product exemption of 16(b) concerning internal Government communications and memorandums must be read together with and accommodated to, the strong policy in favor of discovery of a defendant's own statements manifested in 16 (a) (1). The reasons in favor of granting a defendant access to his statements are as powerful in the case of oral statements, wherever they appear, as in the instance of a written and signed confession. Many statements of defendants will appear only in investigative reports or notes, especially as restrictions on interrogation make formal written statements harder to obtain. The exemption for investigative reports is designed to prevent wholesale rummaging by a defendant through the prosecution's files and gaining access thereby to the Government's investigative techniques and sources of information. See Advisory Committee Note to Rule 16(b). Requiring the prosecution to disclose merely the portions of investigative reports or notes which contain oral statements of the defendant in no way infringes on the prosecution's interest in protecting its files from exploration at large and in safeguarding its investigative techniques and sources.
II. RULE 16(a)(3) - DEFENDANT'S GRAND JURY TESTIMONY
The considerations discussed above indicate that a defendant should have virtually an absolute discovery right to his statements. The same or similar considerations to a defendant's request for his own Grand Jury testimony. In fact, the argument for disclosure of Grant Jury testimony is even more compelling since the defendant's testimony to the Grand Jury was under oath and entitled to more weight by a jury. As with the defendant's statements, Rule 16(a)(3) grants to a defendant the absolute right to inspect and copy his recorded testimony subject to the protective order provision found in Rule 16(e).
In the much cited case, United States v. Projansky, supra., at 558, Judge Frankel stated that Rule 16(a)(3) was an unequivocal mandate entitling a defendant to see his Grand Jury testimony. Under Rule 16(a)(3), a defendant is entitled to a copy of his own testimony before a Grand Jury unless the Government affirmatively establishes some reason why it should be withheld. United States v. Projansky, supra., United States v. Manetta 323 F. Supp. 683
(D.C. Del. 1971), United States v. Tunner, 279 F. Supp. 547 472 (N.D. 111. 1967) and United States v. Pilnick, supra.
Undoubtedly, the current judicial trend is towards recognition that a defendant should have an absolute right to his recorded testimony before the Grand Jury. This same philosophy has been made a part of the Proposed Rules of Criminal Procedure in that subdivision (a)(1)
(A) of Proposed Rule 16 provides for mandatory disclosure of any recorded testimony which defendant gives before a Grand Jury, and which relates to the charge.
In the Advisory Committee Note on Proposed Rule 16, 62 F.R.D. 311, the Committee states:
"The traditional rationale behind Grand Jury secrecy -- protection of witnesses -- does not apply when the accused seeks discovery of his own testimony. Cf. Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L.Ed. 2d 973 (1966) and Allen v. United States 129 U.S. App.D.C. 61.
Note from Christina Masewicz The last paragraph of the page received is too faded to be legible.
III. RULE 16(a)(2) - PHYSICAL OR MENTAL EXAMINATION AND SCIENTIFIC TEST
Note from Christina Masewicz The first paragraph of the page received is too faded to be legible.
The reasons for allowing the defendant access to such material are as follows 1) The defendant will not be able to effectively and adequately pretrial preparation; 2) Expert testimony generally has, in the eyes of a jury, unusually high probative value, coming as it does from a supposedly disinterested party and concerning matters generally beyond the realm of ordinary lay information; 3) Expert testimony is therefore, almost impossible to rebut without intensive pretrial preparation; 4) Any danger of intimidation of witnesses concerning these matters is so slight as to be for all practical purposes nonexistent.
These reasons were recognized by Circuit Judge Wright in his concurring opinion in Cooper v. United States, 119 U.S. App. D.C. 142, 143, 337 F. 2d 538, 538 (1964). He states there: "In short, to the extent that the Government utilizes modern scientific techniques for crime detection, the findings will be available to the defendant." Rezneck, The New Federal Rules of Criminal Procedure, 1966, 54 Geo. L.J. 1276, 1278.
The Proposed Amendment to Rule 16 recognizes the need for discovery of this material and has made disclosure of this material mandatory under subdivision (a)(1)(D). This is consistent with the recommendation of the American Bar Association's Standards which proposes that discovery of this material is a matter of right. ABA Project on Standards for Criminal Justice, Discovery and Procedure Before Trial, (Approved Draft 1970), Section 2.1 (a)(iv).
IV. DISCOVERY UNDER RULE 16(b)
Rule 16(b) permits discovery on the requisite showing of materiality and reasonableness, of books, papers documents, tangible objects, buildings, or places, or copies or portions thereof, that are within the possession, custody, or control of the Government.
Prior to the 1966 Amendment to Rule 16, discovery was limited to material obtained from or belonging to the defendant, or obtained from others by seizure or subpoena. The 1966 Amendment to Rule 16 abolished this requirement. Instead, the standard is whether the material is in the possession, custody, or control of the Government. If it is then it is potentially subject to discovery no matter how the Government obtained it. Wright, Federal Practice and Procedure: Criminal Section 254.
In United States v. Crisona, 271 F. Supp. 150, 158 (D.C. N.Y. 1967) the Court explicitly stated this principle: "Insofar as the Government's contention is based on Crisona's lack of any proprietary interest in the documents, the test under Rule 16, F.R. Crim. P. as amended, is materiality and reasonableness rather than a proprietary interest." In a note to an earlier proposal to amend Rule 16, the Advisory Committee said, "No useful purpose appears to be served by making defendant's right to discovery depend upon the source from which or the method by which the Government obtained custody of the items in question." Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure, December 1962, p. 9. See also Wright, Federal Practice and Procedure: Criminal Section 254, N. 57. Clearly then, all discovery requests under Rule 16(b) by defendant Jeffrey R. MacDonald are not limited to those items in which he has a proprietary interest.
There is, however, an especially strong case for ordering discovery of items that the Government has obtained from the defendant. Wright, Federal Practice and Procedure, supra. See also United States v. Garrison, Wertheim & Goldman, 308 F. Supp. 419, 421 (D.C.N.Y. 1969) citing Wright. This position has also been taken by the ABA Project on Standards for Criminal Justice, Discovery and Procedure Before Trial, Section 2.1 (a)(v) (Approved Draft 1970), which urges that discovery be allowed as a matter of right of "any books, papers, documents, or photographs or tangible objects, which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belong to the accused."
In the present case, this would be particularly applicable to all items taken by the Government from the defendant's former residence at Ft. Bragg, North Carolina which belonged to the defendant, including the linens, towels, furniture and clothing of the defendant and his family.
A. THE MATERIALITY STANDARD
Rule 16(b) does not require that the defendant ask for designated items in his discovery motion. United States v. Hughes, 413 F. 2d 1244 (C.A. 5th 1969); United States v. Bel-Mar Laboratories, Inc., 284 F. Supp. 875 (D.C.N.,Y. 1968); United States v. Reid, 43 F.R.D. 520 (D.C. Ill. 1967). All that is required of him is some degree of particularization and some showing of materiality. But, it is clear that this standard must be viewed generously.
The difficulty for the defendant to demonstrate the materiality of some evidence which he has not seen is too apparent to need argument. It would be unreasonable to require the defendant to lay a detailed foundation in advance to support a Rule 16(b) discovery request. United States v. Hughes, supra.; United States v. Tanner, 279 F. Supp. 457 (D.C. 111. 1967); Rezneck, supra.; Traynor, "Ground Lost and Found in Criminal Discovery", 1964 39
N.Y.U.L. Rev. 228. Chief Justice Marshall, over one hundred years ago, recognized this when he stated:
"Now, if a paper be in possession of the opposite party, what statement of its content or applicability can be expected from the person who claims its production, he not precisely knowing its contents?" United States v. Burr, 25 Fed. Cas. 187, 191 (No. 14694) (C.C.D. Va. 1807).
There is no language in Rule 16(b) that would require the standard of materiality to be any more stringent than that applied to discovery under Federal Rules of Civil Procedure 26(b). Under the civil rule, discovery is permitted if the items are relevant to the subject matter of the case. This means that the items need not be admissible in evidence so long as they may lead to the discovery of admissible evidence. Rezneck, supra., at 1279. Finally, there is another important consideration. If the Court does not grant a generalized discovery demand by a defendant in a criminal case under 16(b), there are no other meaningful discovery mechanisms available to him as their would be to a defendant in a civil case.
"In civil litigation a requirement that a party designate that which he seeks is workable, since interrogatories and other discovery devices permit him to ascertain what materials exist. These other devices are not available to the criminal defendant, and the courts must necessarily view leniently the foundation made for a motion under Rule 16(b)." Federal Practice and Procedure supra., at 513.
B. MATERIALITY OF EVIDENCE TO BE OFFERED AT TRIAL
The Courts have dealt with the materiality test in a different manner when the material sought under Rule 16kb) is to be used by the Government as evidence at the trial. In this case, it is appropriate for courts to grant to the defense discovery of all items which the prosecution proposes to offer in evidence at the trial. United States v. Dioguardi, 332 F. Supp. 7 (D.C.N.Y. 1971), Anything that the Government plans to introduce in evidence against the defendant is clearly material, and his request for it is reasonable. Wright, Federal Practice and Procedure, supra. United States v. Wolfson, 294 F. Supp. 267 (D.C. Del. 1968); United States v. Hrubik, 280 F. Supp 481 (D.C. Alaska 1968); United States v. Reid, 43 F.R.D. 520 (D.C. 111. 1967)
As stated in United States v. Wolfson, supra., at 277 "If the documents seized or obtained by process from others are necessary to prove the Government's case at trial they would obviously be material to the preparation of the defense."
C. SCOPE OF DISCOVERY UNDER RULE 16(b)
It is also important to note that Rule 16(b) does not limit the defendant to discovering evidence the Government intends to use against him. The stated test in Rule 16(b) is "materiality to the preparation of his defense". This test is therefore broad enough to include documents that the defendant wishes as part of his own case as well as the documents that will be used against him. Wright, Federal Practice and Procedure, supra.
"But the rule does not limit the defendant to discovering the case against him. It evidently contemplates that his discovery may encompass a search for evidence which he may use to support his own case or to impeach the government's. For example, photographs of a lineup or the scene of a crime are material and should be discoverable whether or not the government contemplates their use as evidence against the defendant." Rezneck, The New Federal Rules of Criminal Procedure, 1966, 54 Geo. L.J. 1276, 1279.
See also United States v. Hughes, supra., and United States v. Aadal, 280 F. Supp. 859 (D.C.N.Y. 1967).
V: RULE 16(b) - DISCOVERY OF OTHER BOOKS, PAPERS, DOCUMENTS, AND TANGIBLE OBJECTS
In Paragraph IV of Defendant's Motion for Discovery, photographs, diagrams, and sketches are sought. Paragraph VII requests inspection and copies of all tangible objects and documents which the Government considers may be used as evidence at the trial of this case. Both requests are provided for under Rule 16(b).
The photographs sought in this case are necessary to determine the condition of the scene of the crime, the physical conditions of the defendant and his wife and children and to support the defense case, particularly in the identification of individuals observed at or near the scene of the crime. These items are relevant to the subject matter of this case and may lead to the discovery of admissible evidence. They are therefore clearly material to the preparation of his case. As discussed earlier in this brief, p., the defendant's discovery under Rule 16(b) includes evidence which he may use to support his own case.
These photographs may be offered into evidence at trial and the information contained in them is otherwise unavailable to the defense. This request is therefore material and reasonable and similar requests have been granted in United States v. Ahmad, 53 F.R.D. 186 (D.C. Pa. 1971). See also, United States v. Schembari, 484 F. 2d. 931 (C.A. 4th 1973).
The objects and documents sought under Paragraph VII of the Motion for Discovery are evidentially materials and are therefore presumed to be material and reasonable, as discussed infra., p. 14. In addition, inspection of these materials is necessary to prepare an adequate defense and to prevent surprise at trial. United States v. Dioguardi, 332 F. Supp. 7 (D.C.N.Y. 1971); United States v. Bearden, 423 F. 2d 805 (C.A. 5th 1970.
VI. RULE 16(b) - WITNESS LISTS
Rule 16 is apparently intended to authorize orders requiring the production of witness lists, because the Advisory Committee's Notes suggest that the "safety of witnesses" and the "danger of perjury or witness intimidation" may be considered by the Court as a basis for restricting discovery. The Government has an alternative when it believes disclosure will create an undue risk of harm to the witness: it can request a protective order under Rule 16(e).
Discovery of witness lists was approved in United States v. Hardy, D.D.C. Cr. No. 869-69 (1968) where the Court stated:
"Absent a showing of ... abuses and the considerations noted by the Advisory Committee, such as danger to witnesses, names and addresses of persons who have any knowledge pertaining to the case, both those who will be called as witnesses and those who will not, are properly discoverable ... The necessity for discovery of names and addresses of persons with knowledge of the case whom the Government does not intend to call as witnesses may be even greater than discovery of the names of witnesses who will be called. The former may have information favorable to the accused and that information would not be discoverable under the Jencks Act. Indeed, if discovery of names of non-witnesses with knowledge of the case were denied, an innocent defendant might never even know of the existence of people who could save him from punishment for a crime he did not commit."
This is certainly not a unique position for the Court to have taken, particularly nor prosecution has a proprietary interest in a witness. "Witnesses, particularly eyewitnesses to a crime are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity, to interview them". Gregory v. United States, 369 F 2d 185 182 (C.A.D.C. 1966).
Other courts have recognized that under Rule 16(b) they have discretion to order disclosure of Government witnesses to the defendant. United States v. Richter, 488 F. 2d.170 (C.A.9th 1973); United States v. Baggett, 455 F. 2d 476 C.A. 5th 1972); United States v. Hutchins, 53 F.R.D. 455 (E.D. Pa. 1971); United States v. Hamilton, 452 F. 2d 472 (C.A. 8th 1971).
According to the Ninth Circuit in United States v. Richter, supra., at 175:
"If a defendant desires discretionary disclosure of the government's witnesses, he should make a showing similar to that required by Rule 16(b). If the Court wishes to entertain the motion and if the government feels that it has a valid reason for restricting that discovery, it should move for a protective order similar to provided under Rule 16(e). Following these procedures will insure that there is an adequate basis for requesting such discovery and will afford the government a known method for resisting the request."
The Proposed Amendment to Rule 16 represents the current trend to allow discovery of witness list. Subdivision (a)(1) (E) of the Proposed Amendment states that, "Upon request of the defendant the Government shall furnish to the defendant a written list of the names and addresses of all Government witnesses which the attorney for the Government intends to call in the presentation of the case in chief..." Proposed Amendments to the Federal Rules of Criminal Procedure, 62 F.R.D. 271, 305. This places a mandatory duty upon the Government to disclose names and addresses of witnesses when so requested by the defendant. Further support for discovery of witness lists appears in the ABA's Standards Relating to Discovery and Procedure Before Trial, Section 2.1(a)(i) (Approved Draft, 1970) which requires disclosure of both names and statements of prosecution witnesses. The Committee argues that:
"discovery of names and statements facilitates plea discussions and goes to the heart of the general proposition that defense counsel must be permitted to prepare adequately a cross-examine the witnesses against the accused and otherwise test their credibility as well to produce other evidence relevant to the facts in issue."
The Committee is persuaded by four basic principals -- the fundamental concept of fairness requires early disclosure, prior disclosures alleviate delays at trial, early disclosure is necessary for adequate preparation and for minimizing surprise, and protective orders are available, if a denial of discovery is required. ABA Standards at 56-58.
A. APPLICATION OF THE LAW TO THE FACTS OF THIS CASE
In the present case, there is no danger of witness tampering by the defendant, Jeffrey R. MacDonald. This case has been continuing for five years and at no time has the defendant given the Government any reason to suspect that he has or would attempt to influence any witness regarding this case.
The Government is only being asked to disclose information it has of the type and kind that the defendant for his part has previously disclosed to the Government. The defendant, during the Article 32 investigation, 1970, revealed to the Government the 29 witnesses then available to the defense. The Government has had the extraordinary opportunity to obtain discovery of the defendant's witnesses, as well as other material, by way of the Article, 32 proceeding; and through the Army reinvestigation of this case and through the Grand Jury proceedings. Certainly the defendant must have at least an equal right to know the existence of Government witnesses, even if he lacks the unlimited personnel and funds of the Government and the coercive power of a Grand Jury to compel their cooperation with him.
Defendant's request for the names and addresses of witnesses is both reasonable and material to the preparation of his case. "The names of persons with knowledge of the facts is often the most important information for proper defense of a case." Wright, Federal Practice and Procedure: Criminal Section 254. The names and addresses of persons having knowledge of this case are necessary to enable the defense counsel to conduct an adequate investigation of this case, particularly in light of the fact that five years has transpired since the date of the crime.
"In any criminal case, a defendant should be entitled to learn the names and addresses of the witnesses known to the case. It seems inconceivable that in the middle of the Twentieth Century we should regard as fair a proceeding in which counsel is unaware of the witnesses whom he must cross-examine until the moment they are called or, voir dire examination." Pye, The Defendant's Case for More Liberal Discovery, 1963, 33 F.R.D. 82, 92.
VII. RULE 16(6) - STATEMENTS OF PERSONS OTHER THAN DEFENDANT
The discovery by the defendant of pretrial statements of persons who are not prospective Government witnesses is also within the discretion of the Court under Rule 16(b). It is recognized that the defendant may not obtain, pretrial discovery of statements made by actual or prospective Government witnesses. But, Rule 16(b) does not prohibit the disclosure to the defendant of statements from persons the Government does not propose to call as witnesses. 'Wright, Federal Practice and Procedure: Criminal Section 254; Rezneck, The New Federal Rules of Criminal Procedure, 1966, 54 Geo. L.J. 1276.
The Jencks Act exemption in Rule 16(b) does not explicitly exclude discovery of statements of witnesses the Government does not propose to call:
"Their statements are not obtainable at any time under the Jencks Act, since it allows discovery only of statements of witnesses who actually testify at trial. As a result, there would be an undesirable gap in the scope of available discovery if the new rules were held not to authorize discovery of statements of witnesses whom the prosecution does not plan to call. Statements of such witnesses may contain material helpful to the defendant's case, e.g., the inability of the witness to identify the defendant or a description of the perpetrator of the crime which does not fit the defendant. Rezneck, The New Federal Rules of Criminal Procedure, supra., at 1286.
Professor Charles Alan Wright also states that if the exemption in Rule 16(b) purports to bar discovery of statements of witnesses not expected to be used at trial, then the exemption is too broad, and quite probably, in the light of Brady v. Maryland, unconstitutionally broad." Wright, Recent Changes in the Federal Rules of Procedure, 1966, 42 F.R.D. 552-569.
Some Courts have ordered discovery of statements of witnesses whom the Government does not plan to call. In United States v. Hardy, supra., the Court granted the defendant access to all statements, written and oral, made to the police by his wife, who was arrested with him as an accomplice but was not indicted. The Court held, at page 69, that, "The Government having failed to show any clear and compelling considerations for suppression of these statements, they are discoverable under Rule 16(b)..." See also United States v. White, D.C.D.C., Cr. No. 951-65.
The ABA's Standards Relating to Discovery and Procedure Before Trial, Section 2.1(a) (1) (Approved Draft, 1970) recognize the defense need for discovery of statements of Government witnesses. The Committee proposal would have the Government disclose to the defendant the names and addresses of persons whom the prosecuting attorney intends to call as witnesses, together with their relevant written and recorded statements. The Committee makes the same argument for discovery of these statements as it did for the witness lists; namely, that the fundamental concept of fairness requires early disclosure, that prior disclosures alleviate delays at trial, that early disclosure is necessary for adequate preparation and to minimized surprise, and that protective orders are available if a denial of discovery is required. ABA Standards, supra.
A. APPLICATION OF THE LAW TO THE FACTS OF THIS CASE
The statements requested by the defendant, Jeffrey R. MacDonald, are limited to statements by witnesses concerning this case. These statements are clearly material to the preparation of his defense. Because of the length of time that has elapsed since the murders of the defendant's wife and children, and in light of the thousands of persons whom the Government has claimed to have interviewed concerning this case, only early discovery of these statements will allow defense counsel to prepare an adequate defense and investigate the evidence pertinent to the facts in issue.
In addition, the defense will need considerable time to review this voluminous material because in turn it may produce further investigative leads. Disclosure of this material at trial will be too late. The defendant would be denied at that late juncture, and the Court would be faced with, unnecessary delay. Furthermore, due to the enormous number of persons claimed to have been interviewed by the Government and the worldwide geographical locations of these witnesses, it will be impossible for defense counsel to interview or take depositions of these witnesses. This situation is further complicated by the fact that agents of the Government may have advised these witnesses not to discuss the case with other persons including the defendant's lawyers and investigators.
VIII. EXCULPATORY EVIDENCE - BRADY v. MARYLAND
In Brady v, Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215, the Supreme Court made it clear that the withholding of evidence favorable to an accused by the prosecution violates due process. The Court stated, "We hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87. The duty under the due process clause to disclose exculpatory evidence is independent of the discovery otherwise available under Rule 16. It should also be noted that in Brady the evidence withheld was favorable only on the issue of punishment.
Following Brady, other courts have also found a violation of an accused's constitutional rights in the withholding of evidence favorable to the defense and rulings by the courts make it clear that no distinction is to be drawn between material known only to the police and material known to the prosecuting attorney. See Barbee v. Warden, 331 F. 2d 842, 846 (4th Cir. 1964); Ellis v. United States, 120 U.S. App. D.C. 271, 345 F. 2d 961 (1965); Walker v. Bishop, 295 F. Supp. 767 (E.D. Ark. 1967); Smith v. United States, 375 F. Supp. 1244 (E.D. Virginia 1974). Moreover, it has become clear that even a negligent nondisclosure by the prosecution will violate the rights of an accused. Levin v. Katzenbach, 124 U.S. App. D.C. 158, 363 F. 2d 287 (C.A.D.C. 1966), and authorities there cited; Barbee v. Warden, supra.
The Brady decision enlarged the pretrial discovery rights of a defendant. In Brady, the defendant had made a pretrial request for disclosure of the statements of a co-defendant, one of which was not disclosed by the prosecution even though it was favorable to the defendant. In holding that nondisclosure constituted a violation of due process, it follows from the Supreme Court's conclusion that the breach of duty by the prosecutor existed from the moment the defendant made his pretrial request.
Other courts have recognized a duty of pretrial disclosure under Brady in some instances. United States v. Ahmad, 53 F.R.D., 186, 193-194 (M.D. Pa. 1971); United States v. Ladd, 48 F.R.D. 266, 267-268, (D.C. Alaska 1969); United States v. Gleason, 265 F. Supp. 880, 884-85 (S.D.N.Y. 1967); United States v. Morrison, 43 F.R.D. 516, 520 (N.D. 1ll. 1967). The Court in United States v. Ahmad, supra., at 193, clearly defined the problem and considerations involved:
"It seems true, as pointed out In 8 Moore's Federal Practice-Cipes, Criminal Rules Section 16.06(a) (2d Ed. 1970), that if disclosure of some types of exculpatory evidence were delayed until trial it would not be early enough to enable defendants to make effective use of it, and in this situation it is likely that the late disclosure would violate due process. See also United States v. Cobb, 271 F. Supp. 159 (S.D.N.Y. 1967). It is also true that defendants cannot be expected to be specific in advance in asking for exculpatory evidence that might not be known to them. On the other hand, the Government cannot be held to strict accountability in advance for each bit of possible exculpatory evidence in its files, some of which might only become of an exculpatory nature after defendants have revealed their defense. The need for full disclosure to insure fairness to the defendants and that due process is observed must be weighted against an insuperable burden on the prosecution in advance of trial. At least, exculpatory information having a material bearing on defense preparation should be disclosed well in advance of-trial. 8 Moore's Federal Practice Cipes, Criminal Rules Section 16.060(3) (2d Ed. 1970), especially if such information is not Jencks Act Material."
Delaying disclosure of potentially exculpatory information until trial may come too late from the standpoint of both the defense and the prosecution; too late for the defense because it may be impossible to develop the information properly at that point, and too late for the interests or the prosecution as well in such a case because the only recourse then will be for the court to declare a mistrial and order a new trial. Rezneck, "Pretrial Discovery in the Federal Courts", in Criminal Defense Techniques. (R. Cipes Ed. 1969) Section 10.05.
In summary, the defendant seeks to enlighten himself concerning the elements and nature of the charges against him so that counsel may adequately prepare his defense. The Supreme Court has declared: "A prosecution that withholds evidence on demand which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice..." Brady v. Maryland, supra, at 87-88.
It is submitted that for all the foregoing reasons the defendant's requests for discovery should be granted by the Court.
Bernard L. Segal
536 Mission Street, Suite 220
San Francisco, California 94105
Durant Williams Escott
412 Law Building
Charlotte, North Carolina 28202