The purpose of the amendment is to clarify that the disclosure and disclosure obligations of the rule also apply to individual and organizational defendants. See In re United States, 918 F.2d 138 (11th Cir. 1990) (rejection of the distinction between individual defendants and organizational defendants). Because an organizational defendant may not know what their agents or representatives have said or done with respect to an accused offence, it is important that they have access to statements from persons whose statements or actions may bind the accused. See also United States v. Hughes, 413 F.2d 1244, 1251–52 (5th Cir. 1969), expelled as object, 397 U.S. 93 (1970) (corporate prosecution “often resembles the most complex civil cases, requiring a rigorous examination of the mass of detailed facts to uncover the truth”). By following the steps outlined below and knowing the laws and policies regarding investigative functions, prosecutors are more likely to comply with all legal requirements, make informed decisions about disclosures in a particular case, and achieve a fair outcome in each case.
Prosecutors are reminded to contact their office`s designated Criminal Investigations Coordinator if they have questions about the scope of their investigative duties. In most jurisdictions, the Code of Ethics also imposes ethical obligations on prosecutors with respect to detection in criminal cases. Prosecutors are also reminded to contact the Professional Liability Advisory Board if they have questions about these or other ethical responsibilities. The requirement in paragraph (a)(1)(A) is that the government prepare “declarations” without further discussion of what the “declarations” entail. Recently, there has been some controversy over the “statements” that must be discovered under the current rule. See Discovery in Criminal Cases, 44 F.R.D. 481 (1968); C. Wright, Federal Practice and Procedure: Criminal §253, pp. 505-506 (1969, Supp. 1971). The types of “declarations” considered to fall within the rule include “essentially literal and simultaneous” declarations, United States v.
Elife, 43 F.R.D. 23 (N.Y.D.S. 1967); Statements Reproducing Respondent`s “Exact Words,” United States v. Armantrout, 278 F.Supp. 517 (S.D.N.Y. 1968); a memorandum that was not literal but contained the contents of the defendant`s testimony, United States v. Scharf, 267 F.Supp. 19 (N.D.N.Y. 1967); Summaries of Respondent`s Statements, United States v. Morrison, 43 F.R.D. 516 (N.D.Ill. 1967); and statements discovered by electronic surveillance, United States v.
Black, 282 F.Supp. 35 (D.D.C. 1968). In United States v. Iovinelli, 276 F.Supp. 629, 631 (Ill. 1967), the Court stated that “statements” as used in former Rule 16 were not limited to “substantially verbatim reproduction of an oral statement” or statements constituting an “examination of past events.” Electronic communication, like official reports, should accurately and fully reflect the facts; be professional in tone; and avoid wit, careless comments, opinions, or excessive familiarity in tone. The Committee also amended subsections (a)(2) and (b)(2), which set out exceptions to the general investigation requirements for “deliverables”. The paragraphs proposed by the Supreme Court vary depending on the type of document concerned (e.g. Report) and not structured according to the content (e.g. legal theory). The Committee redrafted these provisions by adopting the wording of section 26 (b) (3) of the Federal Rules of Civil Procedure.
Substantive electronic communications between members of the Prosecution Team, including communications containing factual information about witnesses, evidence or investigative activities, should be avoided unless they are the most effective means of communication to meet operational needs. Information on factual cases should be documented in formal reports. The Conference adopts a provision allowing a defendant organization to obtain relevant jury testimony from a witness who (1) at the time of his or her testimony as an officer or employee was such that he or she was able to legally bind the defendant with respect to the conduct constituting the offence, or (2) at the time of the offence, was personally involved in the alleged conduct, which constitutes the offence, was involved and, as an officer or employee, was such that it could legally bind the accused in relation to the alleged conduct in which he was involved. (3) Grand Jury Minutes. This rule does not apply to the disclosure or inspection of the recorded proceedings of a grand jury, except as provided in Rules 6, 12(h), 16(a)(1) and 26.2. The disclosure of documents and materials that are “essential” to the preparation of the defence may be permitted under the Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), without further evidence that the request is “reasonable.” In the Brady case, the court ruled that due process “requires prosecutors to disclose evidence favorable to the accused.
Although the Advisory Board decided not to codify the Brady Rule, the requirement that the government disclose documents and materials “essential to the preparation of its defence” underscores the importance of disclosing evidence favourable to the accused. The government pointed out in one of its statements to this committee that providing witness lists to the defence would lead to forced perjury. That doesn`t happen. We do, of course, receive lists of government witnesses in the southern district, and it is rare for a defence witness or an accused to be opened to a government witness.