Common use of Committee Action Clause in Contracts

Committee Action. The Committee disagrees with the defendant-triggered procedures of the rule proposed by the Supreme Court. The major purpose of a notice- of-alibi rule is to prevent unfair surprise to the pros- ecution. The Committee, therefore, believes that it should be up to the prosecution to trigger the alibi de- fense discovery procedures. If the prosecution is wor- ried about being surprised by an alibi defense, it can trigger the alibi defense discovery procedures. If the government fails to trigger the procedures and if the defendant raises an alibi defense at trial, then the gov- ernment cannot claim surprise and get a continuance of the trial. The Committee has adopted a notice-of-alibi rule similar to the one now used in the District of Colum- bia. [See Rule 2–5(b) of the Rules of the United States District Court for the District of Columbia. See also Rule 16–1 of the Rules of Criminal Procedure for the Su- perior Court of the District of Columbia.] The rule is prosecution-triggered. If the prosecutor notifies the de- fendant of the time, place, and date of the alleged of- fense, then the defendant has 10 days in which to notify the prosecutor of his intention to rely upon an alibi de- fense, specify where he claims to have been at the time of the alleged offense, and provide a list of his alibi wit- nesses. The prosecutor, within 10 days but no later than 10 days before trial, must then provide the defendant with a list of witnesses who will place the defendant at the scene of the alleged crime and those witnesses who will be used to rebut the defendant’s alibi witnesses. The Committee’s rule does not operate only to the benefit of the prosecution. In fact, its rule will provide the defendant with more information than the rule pro- posed by the Supreme Court. The rule proposed by the Supreme Court permits the defendant to obtain a list of only those witnesses who will place him at the scene of the crime. The defendant, however, would get the names of these witnesses anyway as part of his discov- ery under Rule 16(a)(1)(E). The Committee rule not only requires the prosecution to provide the names of wit- nesses who place the defendant at the scene of the crime, but it also requires the prosecution to turn over the names of those witnesses who will be called in re- buttal to the defendant’s alibi witnesses. This is infor- mation that the defendant is not otherwise entitled to discover. Notes of Advisory Committee on Rules—1985 Amendment

Committee Action. The Committee disagrees with the defendant-triggered procedures of the rule proposed by the Supreme Court. The major purpose of a notice- of-alibi rule is to prevent unfair surprise to the pros- ecution. The Committee, therefore, believes that it should be up to the prosecution to trigger the alibi de- fense discovery procedures. If the prosecution is wor- ried about being surprised by an alibi defense, it can trigger the alibi defense discovery procedures. If the government fails to trigger the procedures and if the defendant raises an alibi defense at trial, then the gov- ernment cannot claim surprise and get a continuance of the trial. The Committee has adopted a notice-of-alibi rule similar to the one now used in the District of Colum- bia. [See Rule 2–5(b) of the Rules of the United States District Court for the District of Columbia. See also Rule 16–1 of the Rules of Criminal Procedure for the Su- perior Court of the District of Columbia.] The rule is prosecution-triggered. If the prosecutor notifies the de- fendant of the time, place, and date of the alleged of- fense, then the defendant has 10 days in which to notify the prosecutor of his intention to rely upon an alibi de- fense, specify where he claims to have been at the time of the alleged offense, and provide a list of his alibi wit- nesses. The prosecutor, within 10 days but no later than 10 days before trial, must then provide the defendant with a list of witnesses who will place the defendant at the scene of the alleged crime and those witnesses who will be used to rebut the defendant’s alibi witnesses. The Committee’s rule does not operate only to the benefit of the prosecution. In fact, its rule will provide the defendant with more information than the rule pro- posed by the Supreme Court. The rule proposed by the Supreme Court permits the defendant to obtain a list of only those witnesses who will place him at the scene of the crime. The defendant, however, would get the names of these witnesses anyway as part of his discov- ery under Rule 16(a)(1)(E). The Committee rule not only requires the prosecution to provide the names of wit- nesses who place the defendant at the scene of the crime, but it also requires the prosecution to turn over the names of those witnesses who will be called in re- buttal to the defendant’s alibi witnesses. This is infor- mation that the defendant is not otherwise entitled to discover. Notes NOTES OF ADVISORY COMMITTEE ON RULES—1985 AMENDMENT Note to Subdivision (f). This clarifying amendment is intended to serve the same purpose as a comparable change made in 1979 to similar language in Rule Page 67 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 12.2 11(e)(6). The change makes it clear that evidence of Advisory Committee on Rules—1985 Amendmenta withdrawn intent or of statements made in connection therewith is thereafter inadmissible against the person who gave the notice in any civil or criminal proceed- ing, without regard to whether the proceeding is against that person. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 12.1 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Current Rules 12.1(d) and 12.1(e) have been switched in the amended rule to improve the organization of the rule. Finally, the amended rule includes a new require- ment that in providing the names and addresses of alibi and any rebuttal witnesses, the parties must also pro- vide the phone numbers of those witnesses. See Rule 12.1(a)(2), Rule 12.1(b)(1), and Rule 12.1(c). The Commit- tee believed that requiring such information would fa- cilitate locating and interviewing those witnesses. COMMITTEE NOTES ON RULES—2008 AMENDMENT Subdivisions (b) and (c). The amendment implements the Crime Victims’ Rights Act, which states that vic- tims have the right to be reasonably protected from the accused and to be treated with respect for the victim’s dignity and privacy. See 18 U.S.C. § 3771(a)(1) & (8). The rule provides that a victim’s address and telephone number should not automatically be provided to the de- fense when an alibi defense is raised. If a defendant es- tablishes a need for this information, the court has dis- cretion to order its disclosure or to fashion an alter- native procedure that provides the defendant with the information necessary to prepare a defense, but also protects the victim’s interests. In the case of victims who will testify concerning an alibi claim, the same procedures and standards apply to both the prosecutor’s initial disclosure and the pros- ecutor’s continuing duty to disclose under subdivision (c).

Committee Action. The Committee disagrees with the defendant-triggered procedures of the rule proposed by the Supreme Court. The major purpose of a notice- of-alibi rule is to prevent unfair surprise to the pros- ecution. The Committee, therefore, believes that it should be up to the prosecution to trigger the alibi de- fense discovery procedures. If the prosecution is wor- ried about being surprised by an alibi defense, it can trigger the alibi defense discovery procedures. If the government fails to trigger the procedures and if the defendant raises an alibi defense at trial, then the gov- ernment cannot claim surprise and get a continuance of the trial. The Committee has adopted a notice-of-alibi rule similar to the one now used in the District of Colum- bia. [See Rule 2–5(b) of the Rules of the United States District Court for the District of Columbia. See also Rule 16–1 of the Rules of Criminal Procedure for the Su- perior Court of the District of Columbia.] The rule is prosecution-triggered. If the prosecutor notifies the de- fendant of the time, place, and date of the alleged of- fense, then the defendant has 10 days in which to notify the prosecutor of his intention to rely upon an alibi de- fense, specify where he claims to have been at the time Page 69 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 12.2 of the alleged offense, and provide a list of his alibi wit- nesses. The prosecutor, within 10 days but no later than 10 days before trial, must then provide the defendant with a list of witnesses who will place the defendant at the scene of the alleged crime and those witnesses who will be used to rebut the defendant’s alibi witnesses. The Committee’s rule does not operate only to the benefit of the prosecution. In fact, its rule will provide the defendant with more information than the rule pro- posed by the Supreme Court. The rule proposed by the Supreme Court permits the defendant to obtain a list of only those witnesses who will place him at the scene of the crime. The defendant, however, would get the names of these witnesses anyway as part of his discov- ery under Rule 16(a)(1)(E). The Committee rule not only requires the prosecution to provide the names of wit- nesses who place the defendant at the scene of the crime, but it also requires the prosecution to turn over the names of those witnesses who will be called in re- buttal to the defendant’s alibi witnesses. This is infor- mation that the defendant is not otherwise entitled to discover. Notes NOTES OF ADVISORY COMMITTEE ON RULES—1985 AMENDMENT Note to Subdivision (f). This clarifying amendment is intended to serve the same purpose as a comparable change made in 1979 to similar language in Rule 11(e)(6). The change makes it clear that evidence of Advisory Committee on Rules—1985 Amendmenta withdrawn intent or of statements made in connection therewith is thereafter inadmissible against the person who gave the notice in any civil or criminal proceed- ing, without regard to whether the proceeding is against that person. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 12.1 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Current Rules 12.1(d) and 12.1(e) have been switched in the amended rule to improve the organization of the rule. Finally, the amended rule includes a new require- ment that in providing the names and addresses of alibi and any rebuttal witnesses, the parties must also pro- vide the phone numbers of those witnesses. See Rule 12.1(a)(2), Rule 12.1(b)(1), and Rule 12.1(c). The Commit- tee believed that requiring such information would fa- cilitate locating and interviewing those witnesses. COMMITTEE NOTES ON RULES—2008 AMENDMENT Subdivisions (b) and (c). The amendment implements the Crime Victims’ Rights Act, which states that vic- tims have the right to be reasonably protected from the accused and to be treated with respect for the victim’s dignity and privacy. See 18 U.S.C. § 3771(a)(1) & (8). The rule provides that a victim’s address and telephone number should not automatically be provided to the de- fense when an alibi defense is raised. If a defendant es- tablishes a need for this information, the court has dis- cretion to order its disclosure or to fashion an alter- native procedure that provides the defendant with the information necessary to prepare a defense, but also protects the victim’s interests. In the case of victims who will testify concerning an alibi claim, the same procedures and standards apply to both the prosecutor’s initial disclosure and the pros- ecutor’s continuing duty to disclose under subdivision (c).

Committee Action. The Committee disagrees agrees with the proposed rule but has added language concerning the use of statements made to a psychiatrist during the course of a psychiatric examination provided for by Rule 12.2. The language provides: No statement made by the accused in the course of any examination provided for by this rule, whether the examination shall be with or without the consent of the accused, shall be admitted in evi- dence against the accused before the judge who or jury which determines the guilt of the accused, prior to the determination of guilt. The purpose of this rule is to secure the defendant’s fifth amendment right against self-triggered procedures incrimination. See State v. Raskin, 34 Wis.2d 607, 150 N.W.2d 318 (1967). The provision is flexible and does not totally preclude the use of such statements. For example, the defendant’s statement can be used at a separate determination of the issue of sanity or for sentencing purposes once guilt has been determined. A limiting instruction to the jury in a single trial to consider statements made to the psychiatrist only on the issue of sanity would not sat- isfy the requirements of the rule proposed as amended. The prej- udicial effect on the determination of guilt would be in- escapable. The Committee notes that the rule does not attempt to resolve the issue whether the court can constitu- tionally compel a defendant to undergo a psychiatric examination when the defendant is unwilling to under- go one. The provisions of subdivision (c) are qualified by the Supreme Court. The major purpose of a notice- of-alibi rule is to prevent unfair surprise to the pros- ecution. The Committeephrase, therefore, believes that it should be up to the prosecution to trigger the alibi de- fense discovery procedures. ‘‘In an appropriate case.’’ If the prosecution is wor- ried about being surprised by court cannot constitutionally compel an alibi defense, it can trigger the alibi defense discovery procedures. If the government fails unwilling defendant to trigger the procedures and if the defendant raises an alibi defense at trialundergo a psychiatric examination, then the gov- ernment cannot claim surprise and get provi- sions of subdivision (c) are inapplicable in every in- stance where the defendant is unwilling to undergo a continuance of the trialcourt-ordered psychiatric examination. The Committee has adopted Commit- tee, by its approval of subdivision (c), intends to take no stand whatever on the constitutional question. CONFERENCE COMMITTEE NOTES, HOUSE REPORT NO. 94–414; 1975 AMENDMENT Rule 12.2(c) deals with court-ordered psychiatric ex- aminations. The House version provides that no state- ment made by a noticedefendant during a court-of-alibi rule similar ordered psy- chiatric examination could be admitted in evidence against the defendant before the trier of fact that de- termines the issue of guilt prior to the one now used determination of guilt. The Senate version deletes this provision. The Conference adopts a modified House provision and restores to the bill the language of H.R. 6799 as it was originally introduced. The Conference adopted lan- guage provides that no statement made by the defend- ant during a psychiatric examination provided for by the rule shall be admitted against him on the issue of guilt in any criminal proceeding. The Conference believes that the provision in H.R. 6799 as originally introduced in the District of Colum- bia. [See Rule 2–5(b) of the Rules of the United States District Court for the District of Columbia. See also Rule 16–1 of the Rules of Criminal Procedure for the Su- perior Court of the District of Columbia.] The rule is prosecution-triggered. If the prosecutor notifies the de- fendant of the time, place, and date of the alleged of- fense, then the defendant has 10 days in which to notify the prosecutor of his intention to rely upon an alibi de- fense, specify where he claims to have been at the time of the alleged offense, and provide a list of his alibi wit- nesses. The prosecutor, within 10 days but no later than 10 days before trial, must then provide the defendant with a list of witnesses who will place the defendant at the scene of the alleged crime and those witnesses who will be used to rebut House adequately protects the defendant’s alibi witnessesfifth amendment right against self-incrimination. The Committee’s rule does not operate only preclude use of statements made by a defendant during a court-ordered psychiatric examination. The statements may be rel- evant to the benefit issue of the prosecutiondefendant’s sanity and admissible on that issue. In factHowever, its rule will provide the defendant with more information than a limiting instruction would not satisfy the rule pro- posed by the Supreme Courtif a statement is so prejudicial that a limiting instruction would be ineffective. The rule proposed by the Supreme Court permits the defendant Cf. practice under 18 U.S.C. 4244. Rule 12.2 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 72 NOTES OF ADVISORY COMMITTEE ON RULES—1983 AMENDMENT Note to obtain a list of only those witnesses who will place him at the scene of the crime. The defendant, however, would get the names of these witnesses anyway as part of his discov- ery under Rule 16(a)(1)(ESubdivision (b). The Committee Courts have recently experi- enced difficulty with the question of what kind of ex- pert testimony offered for what purpose falls within the notice requirement of rule 12.2(b). See, e.g., United States v. Hill, 655 F.2d 512 (3d Cir. 1980) (rule not only requires the prosecution applica- ble to provide the names tendered testimony of wit- nesses who place the defendant at the scene of the crime, but it also requires the prosecution to turn over the names of those witnesses who will be called in re- buttal to the psychologist concerning defendant’s alibi witnesses. This is infor- mation that the defendant is not otherwise entitled susceptibility of inducement, offered to discover. Notes of Advisory Committee on Rules—1985 Amendmentre- inforce defendant’s entrapment defense); United States

Committee Action. The Committee disagrees with the defendant-triggered procedures of the rule proposed by the Supreme Court. The major purpose of a notice- of-alibi rule is to prevent unfair surprise to the pros- ecution. The Committee, therefore, believes that it should be up to the prosecution to trigger the alibi de- fense discovery procedures. If the prosecution is wor- ried about being surprised by an alibi defense, it can trigger the alibi defense discovery procedures. If the government fails to trigger the procedures and if the defendant raises an alibi defense at trial, then the gov- ernment cannot claim surprise and get a continuance of the trial. The Committee has adopted a notice-of-alibi rule similar to the one now used in the District of Colum- bia. [See Rule 2–5(b) of the Rules of the United States District Court for the District of Columbia. See also Rule 16–1 of the Rules of Criminal Procedure for the Su- perior Court of the District of Columbia.] The rule is prosecution-triggered. If the prosecutor notifies the de- fendant of the time, place, and date of the alleged of- fense, then the defendant has 10 days in which to notify the prosecutor of his intention to rely upon an alibi de- fense, specify where he claims to have been at the time of the alleged offense, and provide a list of his alibi wit- nesses. The prosecutor, within 10 days but no later than 10 days before trial, must then provide the defendant with a list of witnesses who will place the defendant at the scene of the alleged crime and those witnesses who will be used to rebut the defendant’s alibi witnesses. The Committee’s rule does not operate only to the benefit of the prosecution. In fact, its rule will provide the defendant with more information than the rule pro- posed by the Supreme Court. The rule proposed by the Supreme Court permits the defendant to obtain a list of only those witnesses who will place him at the scene of the crime. The defendant, however, would get the names of these witnesses anyway as part of his discov- ery under Rule 16(a)(1)(E). The Committee rule not only requires the prosecution to provide the names of wit- nesses who place the defendant at the scene of the crime, but it also requires the prosecution to turn over the names of those witnesses who will be called in re- buttal to the defendant’s alibi witnesses. This is infor- mation that the defendant is not otherwise entitled to discover. Notes NOTES OF ADVISORY COMMITTEE ON RULES—1985 AMENDMENT Note to Subdivision (f). This clarifying amendment is intended to serve the same purpose as a comparable change made in 1979 to similar language in Rule 11(e)(6). The change makes it clear that evidence of Advisory Committee on Rules—1985 Amendmenta withdrawn intent or of statements made in connection therewith is thereafter inadmissible against the person who gave the notice in any civil or criminal proceed- ing, without regard to whether the proceeding is against that person. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 12.1 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Current Rules 12.1(d) and 12.1(e) have been switched in the amended rule to improve the organization of the rule. Finally, the amended rule includes a new require- ment that in providing the names and addresses of alibi and any rebuttal witnesses, the parties must also pro- vide the phone numbers of those witnesses. See Rule 12.1(a)(2), Rule 12.1(b)(1), and Rule 12.1(c). The Commit- tee believed that requiring such information would fa- cilitate locating and interviewing those witnesses. COMMITTEE NOTES ON RULES—2008 AMENDMENT Subdivisions (b) and (c). The amendment implements the Crime Victims’ Rights Act, which states that vic- tims have the right to be reasonably protected from the accused and to be treated with respect for the victim’s dignity and privacy. See 18 U.S.C. § 3771(a)(1) & (8). The rule provides that a victim’s address and telephone number should not automatically be provided to the de- fense when an alibi defense is raised. If a defendant es- tablishes a need for this information, the court has dis- cretion to order its disclosure or to fashion an alter- native procedure that provides the defendant with the information necessary to prepare a defense, but also protects the victim’s interests. In the case of victims who will testify concerning an alibi claim, the same procedures and standards apply to both the prosecutor’s initial disclosure and the pros- ecutor’s continuing duty to disclose under subdivision (c).

Committee Action. The Committee disagrees with the defendant-triggered procedures of the rule proposed by the Supreme Court. The major purpose of a notice- of-alibi rule is to prevent unfair surprise to the pros- ecution. The Committee, therefore, believes that it should be up to the prosecution to trigger the alibi de- fense discovery procedures. If the prosecution is wor- ried about being surprised by an alibi defense, it can trigger the alibi defense discovery procedures. If the government fails to trigger the procedures and if the defendant raises an alibi defense at trial, then the gov- ernment cannot claim surprise and get a continuance of the trial. The Committee has adopted a notice-of-alibi rule similar to the one now used in the District of Colum- bia. [See Rule 2–5(b) of the Rules of the United States District Court for the District of Columbia. See also Rule 16–1 of the Rules of Criminal Procedure for the Su- perior Court of the District of Columbia.] The rule is prosecution-triggered. If the prosecutor notifies the de- fendant of the time, place, and date of the alleged of- fense, then the defendant has 10 days in which to notify the prosecutor of his intention to rely upon an alibi de- fense, specify where he claims to have been at the time of the alleged offense, and provide a list of his alibi wit- nesses. The prosecutor, within 10 days but no later than 10 days before trial, must then provide the defendant with a list of witnesses who will place the defendant at the scene of the alleged crime and those witnesses who will be used to rebut the defendant’s alibi witnesses. The Committee’s rule does not operate only to the benefit of the prosecution. In fact, its rule will provide the defendant with more information than the rule pro- posed by the Supreme Court. The rule proposed by the Supreme Court permits the defendant to obtain a list of only those witnesses who will place him at the scene of the crime. The defendant, however, would get the names of these witnesses anyway as part of his discov- ery under Rule 16(a)(1)(E). The Committee rule not only requires the prosecution to provide the names of wit- nesses who place the defendant at the scene of the crime, but it also requires the prosecution to turn over the names of those witnesses who will be called in re- buttal to the defendant’s alibi witnesses. This is infor- mation that the defendant is not otherwise entitled to discover. Notes NOTES OF ADVISORY COMMITTEE ON RULES—1985 AMENDMENT Note to Subdivision (f). This clarifying amendment is intended to serve the same purpose as a comparable change made in 1979 to similar language in Rule 11(e)(6). The change makes it clear that evidence of Advisory Committee on Rules—1985 Amendmenta withdrawn intent or of statements made in connection therewith is thereafter inadmissible against the person who gave the notice in any civil or criminal proceed- ing, without regard to whether the proceeding is against that person. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. 1975 AMENDMENT Pub. L. 94–64 amended Rule 12.1 generally. EFFECTIVE DATE OF RULE; EFFECTIVE DATE OF 1975 AMENDMENTS This rule, and the amendments of this rule made by section 3 of Pub. L. 94–64, effective Dec. 1, 1975, see sec- tion 2 of Pub. L. 94–64, set out as a note under rule 4 of these rules.