Common use of Committee Action Clause in Contracts

Committee Action. The Committee modified sub- division (e) to permit the court to defer its ruling on a pretrial motion until after the trial only for good cause. Moreover, the court cannot defer its ruling if to do so will adversely affect a party’s right to appeal. The Committee believes that the rule proposed by the Supreme Court could deprive the government of its ap- peal rights under statutes like section 3731 of title 18 of the United States Code. Further, the Committee hopes to discourage the tendency to reserve rulings on pre- trial motions until after verdict in the hope that the jury’s verdict will make a ruling unnecessary. The Committee also modified subdivision (h), which deals with what happens when the court grants a pre- trial motion based upon a defect in the institution of the prosecution or in the indictment or information. The Committee’s change provides that when such a mo- TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 66 tion is granted, the court may order that the defendant be continued in custody or that his bail be continued for a specified time. A defendant should not automati- cally be continued in custody when such a motion is granted. In order to continue the defendant in custody, the court must not only determine that there is prob- able cause, but it must also determine, in effect, that there is good cause to have the defendant arrested. NOTES OF ADVISORY COMMITTEE ON RULES—1983 AMENDMENT Note to Subdivision (i). As noted in the recent decision of United States v. Raddatz, 447 U.S. 667 (1980), hearings on pretrial suppression motions not infrequently neces- sitate a determination of the credibility of witnesses. In such a situation, it is particularly important, as also highlighted by Raddatz, that the record include some other evidence which tends to either verify or con- trovert the assertions of the witness. (This is especially true in light of the Raddatz holding that a district judge, in order to make an independent evaluation of credibility, is not required to rehear testimony on which a magistrate based his findings and recom- mendations following a suppression hearing before the magistrate.) One kind of evidence which can often ful- fill this function is prior statements of the testifying witness, yet courts have consistently held that in light of the Jencks Act, 18 U.S.C. § 3500, such production of statements cannot be compelled at a pretrial suppres- sion hearing. United States v. Spagnuolo, 515 F.2d 818 (9th Cir. 1975); United States v. Sebastian, 497 F.2d 1267 (2nd Cir. 1974); United States v. Montos, 421 F.2d 215 (5th Cir. 1970). This result, which finds no express Congressional approval in the legislative history of the Jencks Act, see United States v. Sebastian, supra; United States v. Covello, 410 F.2d 536 (2d Cir. 1969), would be obviated by new subdivision (i) of rule 12. This change will enhance the accuracy of the factual determinations made in the context of pretrial suppres- sion hearings. As noted in United States v. Sebastian, supra, it can be argued most persuasively that the case for pre-trial disclo- sure is strongest in the framework of a suppression hearing. Since findings at such a hearing as to ad- missibility of challenged evidence will often deter- mine the result at trial and, at least in the case of fourth amendment suppression motions, cannot be relitigated later before the trier of fact, pre-trial production of the statements of witnesses would aid defense counsel’s impeachment efforts at perhaps the most crucial point in the case. * * * [A] govern- ment witness at the suppression hearing may not appear at trial so that defendants could never test his credibility with the benefits of Jencks Act ma- terial. The latter statement is certainly correct, for not in-

Committee Action. The Committee modified sub- division narrowed the definition of ‘‘unavailability’’ in subdivision (g). The Committee deleted language from that subdivision that provided that a witness was ‘‘unavailable’’ if the court exempts him from testifying at the trial on the ground of privilege. The Committee does not want to encour- age the use of depositions at trial, especially in view of the importance of having live testimony from a witness on the witness stand. The Committee added a provision to subdivision (b) to parallel the provision of Rule 43(b)(2). This is to make it clear that a disruptive defendant may be re- moved from the place where a deposition is being taken. The Committee added language to subdivision (c) to make clear that the government must pay for the cost of the transcript of a deposition when the deposition is taken at the instance of an indigent defendant or of the government. In order to use a deposition at trial, it must be transcribed. The proposed rule did not explic- itly provide for payment of the cost of transcribing, and the Committee change rectifies this. The Committee notes that subdivision (e) to permit permits the court to defer its ruling on use of a pretrial motion until after deposition when the witness ‘‘gives testimony at the trial only for good cause. Moreoveror hearing inconsistent with his deposi- tion.’’ Since subdivision (e) refers to the rules of evi- dence, the court cannot defer its ruling if Committee understands that the Federal Rules of Evidence will govern the admissibility and use of the deposition. The Committee, by adopting subdivi- sion (e) as proposed to do so will adversely affect a party’s right be amended by the Supreme Court, intends the Federal Rules of Evidence to appealgovern the admissibility and use of the deposition. The Committee believes that Rule 15 will not encour- age trials by deposition. A deposition may be taken only in ‘‘exceptional circumstances’’ when ‘‘it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved. * * *’’ A dep- osition, once it is taken, is not automatically admissi- ble at trial, however. It may only be used at trial if the witness is unavailable, and the rule proposed narrowly defines unavailability. The procedure established in Rule 15 is similar to the procedure established by the Organized Crime Control Act of 1970 for the taking and use of depositions in organized crime cases. See 18 U.S.C. 3503. CONFERENCE COMMITTEE NOTES, HOUSE REPORT NO. 94–414; 1975 AMENDMENT Rule 15 deals with the taking of depositions and the use of depositions at trial. Rule 15(e) permits a deposi- tion to be used if the witness is unavailable. Rule 15(g) defines that term. The Supreme Court’s proposal defines five circum- stances in which the witness will be considered unavail- able. The House version of the bill deletes a provision that said a witness is unavailable if he is exempted at trial, on the ground of privilege, from testifying about the subject matter of his deposition. The Senate ver- sion of the bill by cross reference to the Federal Rules of Evidence, restores the Supreme Court could deprive the government of its ap- peal rights under statutes like section 3731 of title 18 of the United States Code. Further, the Committee hopes to discourage the tendency to reserve rulings on pre- trial motions until after verdict in the hope that the jury’s verdict will make a ruling unnecessaryproposal. The Committee also modified subdivision (h), which deals with what happens when Conference adopts the court grants a pre- trial motion based upon a defect in the institution of the prosecution or in the indictment or information. The Committee’s change provides that when such a mo- TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 66 tion is granted, the court may order that the defendant be continued in custody or that his bail be continued for a specified time. A defendant should not automati- cally be continued in custody when such a motion is granted. In order to continue the defendant in custody, the court must not only determine that there is prob- able cause, but it must also determine, in effect, that there is good cause to have the defendant arrestedSenate provision. NOTES OF ADVISORY COMMITTEE ON RULES—1983 RULES—1987 AMENDMENT Note The amendments are technical. No substantive change is intended. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 15 has been amended as part of the general restyling of the Criminal Rules to Subdivision (i)make them more easily understood and to make style and terminology consistent throughout the rules. As These changes are intended to be stylistic only, except as noted in the recent decision of United States v. Raddatz, 447 U.S. 667 (1980below. In Rule 15(a), hearings on pretrial suppression motions not infrequently neces- sitate a determination the list of materials to be produced has been amended to include the credibility of witnesses. In such a situation, it is particularly important, as also highlighted by Raddatz, that expansive term ‘‘data’’ to reflect the record include some other evidence which tends to either verify or con- trovert the assertions of the witness. (This is especially true in light of the Raddatz holding that a district judge, in order to make an independent evaluation of credibility, is not required to rehear testimony on which a magistrate based his findings and recom- mendations following a suppression hearing before the magistrate.) One kind of evidence which can often ful- fill this function is prior statements of the testifying witness, yet courts have consistently held fact that in light of an increasingly technological culture, the Jencks Act, 18 U.S.C. § 3500information may exist in a format not al- ready covered by the more conventional list, such production as a book or document. The last portion of statements cannot be compelled current Rule 15(b), dealing with the defendant’s presence at a pretrial suppres- sion hearing. United States v. Spagnuolodeposition, 515 F.2d 818 (9th Cir. 1975has been moved to amended Rule 15(c); United States v. Sebastian, 497 F.2d 1267 (2nd Cir. 1974); United States v. Montos, 421 F.2d 215 (5th Cir. 1970). This result, which finds no express Congressional approval in the legislative history of the Jencks Act, see United States v. Sebastian, supra; United States v. Covello, 410 F.2d 536 (2d Cir. 1969), would be obviated by new subdivision (i) of rule 12. This change will enhance the accuracy of the factual determinations made in the context of pretrial suppres- sion hearings. As noted in United States v. Sebastian, supra, it can be argued most persuasively that the case for pre-trial disclo- sure is strongest in the framework of a suppression hearing. Since findings at such a hearing as to ad- missibility of challenged evidence will often deter- mine the result at trial and, at least in the case of fourth amendment suppression motions, cannot be relitigated later before the trier of fact, pre-trial production of the statements of witnesses would aid defense counsel’s impeachment efforts at perhaps the most crucial point in the case. * * * [A] govern- ment witness at the suppression hearing may not appear at trial so that defendants could never test his credibility with the benefits of Jencks Act ma- terial. The latter statement is certainly correct, for not in-.

Committee Action. The Committee modified sub- division (e) to permit the court to defer its ruling on a pretrial motion until after the trial only for good cause. Moreover, the court cannot defer its ruling if to do so will adversely affect a party’s right to appeal. The Committee believes that the rule proposed by the Supreme Court could deprive the government of its ap- peal rights under statutes like section 3731 of title 18 of the United States Code. Further, the Committee hopes to discourage the tendency to reserve rulings on pre- trial motions until after verdict in the hope that the jury’s verdict will make a ruling unnecessary. The Committee also modified subdivision (h), which deals with what happens when the court grants a pre- trial motion based upon a defect in the institution of the prosecution or in the indictment or information. The Committee’s change provides that when such a mo- TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 66 tion is granted, the court may order that the defendant be continued in custody or that his bail be continued for a specified time. A defendant should not automati- cally be continued in custody when such a motion is granted. In order to continue the defendant in custody, the court must not only determine that there is prob- able cause, but it must also determine, in effect, that there is good cause to have the defendant arrested. NOTES OF ADVISORY COMMITTEE ON RULES—1983 AMENDMENT Note to Subdivision (i). As noted in the recent decision of United States v. Raddatz, 447 U.S. 667 (1980), hearings on pretrial suppression motions not infrequently neces- sitate a determination of the credibility of witnesses. In such a situation, it is particularly important, as also highlighted by Raddatz, that the record include some other evidence which tends to either verify or con- trovert the assertions of the witness. (This is especially true in light of the Raddatz holding that a district judge, in order to make an independent evaluation of credibility, is not required to rehear testimony on which a magistrate based his findings and recom- mendations following a suppression hearing before the magistrate.) One kind of evidence which can often ful- fill this function is prior statements of the testifying witness, yet courts have consistently held that in light of the Jencks Act, 18 U.S.C. § 3500, such production of statements cannot be compelled at a pretrial suppres- TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 64 sion hearing. United States v. Spagnuolo, 515 F.2d 818 (9th Cir. 1975); United States v. Sebastian, 497 F.2d 1267 (2nd Cir. 1974); United States v. Montos, 421 F.2d 215 (5th Cir. 1970). This result, which finds no express Congressional approval in the legislative history of the Jencks Act, see United States v. Sebastian, supra; United States v. Covello, 410 F.2d 536 (2d Cir. 1969), would be obviated by new subdivision (i) of rule 12. This change will enhance the accuracy of the factual determinations made in the context of pretrial suppres- sion hearings. As noted in United States v. Sebastian, supra, it can be argued most persuasively that the case for pre-trial disclo- sure is strongest in the framework of a suppression hearing. Since findings at such a hearing as to ad- missibility of challenged evidence will often deter- mine the result at trial and, at least in the case of fourth amendment suppression motions, cannot be relitigated later before the trier of fact, pre-trial production of the statements of witnesses would aid defense counsel’s impeachment efforts at perhaps the most crucial point in the case. * * * [A] govern- ment witness at the suppression hearing may not appear at trial so that defendants could never test his credibility with the benefits of Jencks Act ma- terial. The latter statement is certainly correct, for not in-

Committee Action. The Committee modified sub- division (e) to permit the court to defer its ruling on a pretrial motion until after the trial only for good cause. Moreover, the court cannot defer its ruling if to do so will adversely affect a party’s right to appeal. The Committee believes that the rule proposed by the Supreme Court could deprive the government of its ap- peal rights under statutes like section 3731 of title 18 of the United States Code. Further, the Committee hopes to discourage the tendency to reserve rulings on pre- trial motions until after verdict in the hope that the jury’s verdict will make a ruling unnecessary. The Committee also modified subdivision (h), which deals with what happens when the court grants a pre- trial motion based upon a defect in the institution of the prosecution or in the indictment or information. The Committee’s change provides that when such a mo- TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 66 tion is granted, the court may order that the defendant be continued in custody or that his bail be continued for a specified time. A defendant should not automati- cally be continued in custody when such a motion is granted. In order to continue the defendant in custody, the court must not only determine that there is prob- able cause, but it must also determine, in effect, that there is good cause to have the defendant arrested. NOTES OF ADVISORY COMMITTEE ON RULES—1983 AMENDMENT Notes of Advisory Committee on Rules—1983 Amendment Note to Subdivision (i). As noted in the recent decision of United States v. Raddatzx. Xxxxxxx, 447 U.S. 667 (1980), hearings on pretrial suppression motions not infrequently neces- sitate a determination of the credibility of witnesses. In such a situation, it is particularly important, as also highlighted by RaddatzXxxxxxx, that the record include some other evidence which tends to either verify or con- trovert the assertions of the witness. (This is especially true in light of the Raddatz Xxxxxxx holding that a district judge, in order to make an independent evaluation of credibility, is not required to rehear testimony on which a magistrate based his findings and recom- mendations following a suppression hearing before the magistrate.) One kind of evidence which can often ful- fill this function is prior statements of the testifying witness, yet courts have consistently held that in light of the Jencks Xxxxxx Act, 18 U.S.C. § 3500, such production of statements cannot be compelled at a pretrial suppres- sion hearing. United States v. Spagnuolox. Xxxxxxxxx, 515 F.2d 818 (9th Cir. 1975); United States v. Sebastianx. Xxxxxxxxx, 497 F.2d 1267 (2nd Cir. 1974); United States v. Montos, 421 F.2d 215 (5th Cir. 1970). This result, which finds no express Congressional approval in the legislative history of the Jencks Xxxxxx Act, see United States v. Sebastianx. Xxxxxxxxx, supra; United States v. Covellox. Xxxxxxx, 410 F.2d 536 (2d Cir. 1969), would be obviated by new subdivision (i) of rule 12. This change will enhance the accuracy of the factual determinations made in the context of pretrial suppres- sion hearings. As noted in United States v. Sebastianx. Xxxxxxxxx, supra, it can be argued most persuasively that the case for pre-trial disclo- sure is strongest in the framework of a suppression hearing. Since findings at such a hearing as to ad- missibility of challenged evidence will often deter- mine the result at trial and, at least in the case of fourth amendment suppression motions, cannot be relitigated later before the trier of fact, pre-trial production of the statements of witnesses would aid defense counsel’s impeachment efforts at perhaps the most crucial point in the case. * * * [A] govern- ment witness at the suppression hearing may not appear at trial so that defendants could never test his credibility with the benefits of Jencks Xxxxxx Act ma- terial. The latter statement is certainly correct, for not in-

Committee Action. The Committee modified sub- division (e) to permit the court to defer its ruling on a pretrial motion until after the trial only for good cause. Moreover, the court cannot defer its ruling if to do so will adversely affect a party’s right to appeal. The Committee believes that the rule proposed by the Supreme Court could deprive the government of its ap- peal rights under statutes like section 3731 of title 18 of the United States Code. Further, the Committee hopes to discourage the tendency to reserve rulings on pre- trial motions until after verdict in the hope that the jury’s verdict will make a ruling unnecessary. The Committee also modified subdivision (h), which deals with what happens when the court grants a pre- trial motion based upon a defect in the institution of the prosecution or in the indictment or information. The Committee’s change provides that when such a mo- TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 66 tion is granted, the court may order that the defendant be continued in custody or that his bail be continued for a specified time. A defendant should not automati- cally be continued in custody when such a motion is granted. In order to continue the defendant in custody, the court must not only determine that there is prob- able cause, but it must also determine, in effect, that there is good cause to have the defendant arrested. NOTES OF ADVISORY COMMITTEE ON RULES—1983 AMENDMENT Note to Subdivision (i). As noted in the recent decision of United States v. Raddatz, 447 U.S. 667 (1980), hearings on pretrial suppression motions not infrequently neces- sitate a determination of the credibility of witnesses. In such a situation, it is particularly important, as also highlighted by Raddatz, that the record include some other evidence which tends to either verify or con- trovert the assertions of the witness. (This is especially true in light of the Raddatz holding that a district judge, in order to make an independent evaluation of credibility, is not required to rehear testimony on which a magistrate based his findings and recom- mendations following a suppression hearing before the magistrate.) One kind of evidence which can often ful- fill this function is prior statements of the testifying witness, yet courts have consistently held that in light of the Jencks Act, 18 U.S.C. § 3500, such production of statements cannot be compelled at a pretrial suppres- sion hearing. United States v. Spagnuolo, 515 F.2d 818 (9th Cir. 1975); United States v. Sebastian, 497 F.2d 1267 (2nd Cir. 1974); United States v. Montos, 421 F.2d 215 (5th Cir. 1970). This result, which finds no express Congressional approval in the legislative history of the Jencks Act, see United States v. Sebastian, supra; United States v. Covello, 410 F.2d 536 (2d Cir. 1969), would be obviated by new subdivision (i) of rule 12. This change will enhance the accuracy of the factual determinations made in the context of pretrial suppres- sion hearings. As noted in United States v. Sebastian, supra, it can be argued most persuasively that the case for pre-trial disclo- sure is strongest in the framework of a suppression hearing. Since findings at such a hearing as to ad- missibility of challenged evidence will often deter- mine the result at trial and, at least in the case of fourth amendment suppression motions, cannot be relitigated later before the trier of fact, pre-trial production of the statements of witnesses would aid defense counsel’s impeachment efforts at perhaps the most crucial point in the case. * * * [A] govern- ment witness at the suppression hearing may not appear at trial so that defendants could never test his credibility with the benefits of Jencks Act ma- terial. The latter statement is certainly correct, for not in-.

Committee Action. The Committee modified sub- division (e) to permit the court to defer its ruling on a pretrial motion until after the trial only for good cause. Moreover, the court cannot defer its ruling if to do so will adversely affect a party’s right to appeal. The Committee believes that the rule proposed by the Supreme Court could deprive the government of its ap- peal rights under statutes like section 3731 of title 18 of the United States Code. Further, the Committee hopes to discourage the tendency to reserve rulings on pre- trial motions until after verdict in the hope that the jury’s verdict will make a ruling unnecessary. The Committee also modified subdivision (h), which deals with what happens when the court grants a pre- trial motion based upon a defect in the institution of the prosecution or in the indictment or information. The Committee’s change provides that when such a mo- TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 66 tion is granted, the court may order that the defendant be continued in custody or that his bail be continued for a specified time. A defendant should not automati- cally be continued in custody when such a motion is granted. In order to continue the defendant in custody, the court must not only determine that there is prob- able cause, but it must also determine, in effect, that there is good cause to have the defendant arrested. NOTES OF ADVISORY COMMITTEE ON RULES—1983 AMENDMENT Note to Subdivision (i). As noted in the recent decision of United States v. Raddatz, 447 U.S. 667 (1980), hearings on pretrial suppression motions not infrequently neces- sitate a determination of the credibility of witnesses. In such a situation, it is particularly important, as also highlighted by Raddatz, that the record include some other evidence which tends to either verify or con- trovert the assertions of the witness. (This is especially true in light of the Raddatz holding that a district judge, in order to make an independent evaluation of credibility, is not required to rehear testimony on which a magistrate based his findings and recom- mendations following a suppression hearing before the magistrate.) One kind of evidence which can often ful- fill this function is prior statements of the testifying witness, yet courts have consistently held that in light of the Jencks Act, 18 U.S.C. § 3500, such production of statements cannot be compelled at a pretrial suppres- TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 64 sion hearing. United States v. Spagnuolo, 515 F.2d 818 (9th Cir. 1975); United States v. Sebastian, 497 F.2d 1267 (2nd Cir. 1974); United States v. Montos, 421 F.2d 215 (5th Cir. 1970). This result, which finds no express Congressional approval in the legislative history of the Jencks Act, see United States v. Sebastian, supra; United States v. Covello, 410 F.2d 536 (2d Cir. 1969), would be obviated by new subdivision (i) of rule 12. This change will enhance the accuracy of the factual determinations made in the context of pretrial suppres- sion hearings. As noted in United States v. Sebastian, supra, it can be argued most persuasively that the case for pre-trial disclo- sure is strongest in the framework of a suppression hearing. Since findings at such a hearing as to ad- missibility of challenged evidence will often deter- mine the result at trial and, at least in the case of fourth amendment suppression motions, cannot be relitigated later before the trier of fact, pre-trial production of the statements of witnesses would aid defense counsel’s impeachment efforts at perhaps the most crucial point in the case. * * * [A] govern- ment witness at the suppression hearing may not appear at trial so that defendants could never test his credibility with the benefits of Jencks Act ma- terial. The latter statement is certainly correct, for not in-

Committee Action. The Committee modified sub- division (e) to permit the court to defer its ruling on a pretrial motion until after the trial only for good cause. Moreover, the court cannot defer its ruling if to do so will adversely affect a party’s right to appeal. The Committee believes that the rule proposed by the Supreme Court could deprive the government of its ap- peal rights under statutes like section 3731 of title 18 of the United States Code. Further, the Committee hopes to discourage the tendency to reserve rulings on pre- trial motions until after verdict in the hope that the jury’s verdict will make a ruling unnecessary. The Committee also modified subdivision (h), which deals with what happens when the court grants a pre- trial motion based upon a defect in the institution of the prosecution or in the indictment or information. The Committee’s change provides that when such a mo- TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 66 tion is granted, the court may order that the defendant be continued in custody or that his bail be continued for a specified time. A defendant should not automati- cally be continued in custody when such a motion is granted. In order to continue the defendant in custody, the court must not only determine that there is prob- able cause, but it must also determine, in effect, that there is good cause to have the defendant arrested. NOTES OF ADVISORY COMMITTEE ON RULES—1983 AMENDMENT Notes of Advisory Committee on Rules—1983 Amendment Note to Subdivision (i). As noted in the recent decision of United States v. Raddatz, 447 U.S. 667 (1980), hearings on pretrial suppression motions not infrequently neces- sitate a determination of the credibility of witnesses. In such a situation, it is particularly important, as also highlighted by Raddatz, that the record include some other evidence which tends to either verify or con- trovert the assertions of the witness. (This is especially true in light of the Raddatz holding that a district judge, in order to make an independent evaluation of credibility, is not required to rehear testimony on which a magistrate based his findings and recom- mendations following a suppression hearing before the magistrate.) One kind of evidence which can often ful- fill this function is prior statements of the testifying witness, yet courts have consistently held that in light of the Jencks Act, 18 U.S.C. § 3500, such production of statements cannot be compelled at a pretrial suppres- sion hearing. United States v. Spagnuolo, 515 F.2d 818 (9th Cir. 1975); United States v. Sebastian, 497 F.2d 1267 (2nd Cir. 1974); United States v. Montos, 421 F.2d 215 (5th Cir. 1970). This result, which finds no express Congressional approval in the legislative history of the Jencks Act, see United States v. Sebastian, supra; United States v. Covello, 410 F.2d 536 (2d Cir. 1969), would be obviated by new subdivision (i) of rule 12. This change will enhance the accuracy of the factual determinations made in the context of pretrial suppres- sion hearings. As noted in United States v. Sebastian, supra, it can be argued most persuasively that the case for pre-trial disclo- sure is strongest in the framework of a suppression hearing. Since findings at such a hearing as to ad- missibility of challenged evidence will often deter- mine the result at trial and, at least in the case of fourth amendment suppression motions, cannot be relitigated later before the trier of fact, pre-trial production of the statements of witnesses would aid defense counsel’s impeachment efforts at perhaps the most crucial point in the case. * * * [A] govern- ment witness at the suppression hearing may not appear at trial so that defendants could never test his credibility with the benefits of Jencks Act ma- terial. The latter statement is certainly correct, for not in-.

Committee Action. The Committee modified sub- division (e) to permit the court to defer its ruling on a pretrial motion until after the trial only for good cause. Moreover, the court cannot defer its ruling if to do so will adversely affect a party’s right to appeal. The Committee believes that the rule proposed by the Supreme Court could deprive the government of its ap- peal rights under statutes like section 3731 of title 18 of the United States Code. Further, the Committee hopes to discourage the tendency to reserve rulings on pre- trial motions until after verdict in the hope that the jury’s verdict will make a ruling unnecessary. The Committee also modified subdivision (h), which deals with what happens when the court grants a pre- trial motion based upon a defect in the institution of the prosecution or in the indictment or information. The Committee’s change provides that when such a mo- TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 66 tion is granted, the court may order that the defendant be continued in custody or that his bail be continued for a specified time. A defendant should not automati- cally be continued in custody when such a motion is granted. In order to continue the defendant in custody, the court must not only determine that there is prob- able cause, but it must also determine, in effect, that there is good cause to have the defendant arrested. NOTES OF ADVISORY COMMITTEE ON RULES—1983 AMENDMENT Note to Subdivision (i). As noted in the recent decision of United States v. Raddatzx. Xxxxxxx, 447 U.S. 667 (1980), hearings on pretrial suppression motions not infrequently neces- sitate a determination of the credibility of witnesses. In such a situation, it is particularly important, as also highlighted by RaddatzXxxxxxx, that the record include some other evidence which tends to either verify or con- trovert the assertions of the witness. (This is especially true in light of the Raddatz Xxxxxxx holding that a district judge, in order to make an independent evaluation of credibility, is not required to rehear testimony on which a magistrate based his findings and recom- mendations following a suppression hearing before the magistrate.) One kind of evidence which can often ful- fill this function is prior statements of the testifying witness, yet courts have consistently held that in light of the Jencks Xxxxxx Act, 18 U.S.C. § 3500, such production of statements cannot be compelled at a pretrial suppres- sion hearing. United States v. Spagnuolox. Xxxxxxxxx, 515 F.2d 818 (9th Cir. 1975); United States v. Sebastianx. Xxxxxxxxx, 497 F.2d 1267 (2nd Cir. 1974); United States v. Montos, 421 F.2d 215 (5th Cir. 1970). This result, which finds no express Congressional approval in the legislative history of the Jencks Xxxxxx Act, see United States v. Sebastianx. Xxxxxxxxx, supra; United States v. Covellox. Xxxxxxx, 410 F.2d 536 (2d Cir. 1969), would be obviated by new subdivision (i) of rule 12. This change will enhance the accuracy of the factual determinations made in the context of pretrial suppres- sion hearings. As noted in United States v. Sebastianx. Xxxxxxxxx, supra, it can be argued most persuasively that the case for pre-trial disclo- sure is strongest in the framework of a suppression hearing. Since findings at such a hearing as to ad- missibility of challenged evidence will often deter- mine the result at trial and, at least in the case of fourth amendment suppression motions, cannot be relitigated later before the trier of fact, pre-trial production of the statements of witnesses would aid defense counsel’s impeachment efforts at perhaps Page 57 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 12.1 the most crucial point in the case. * * * [A] govern- ment witness at the suppression hearing may not appear at trial so that defendants could never test his credibility with the benefits of Jencks Xxxxxx Act ma- terial. The latter statement is certainly correct, for not in-