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- 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- Rule 12 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- 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- Rule 12 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 64 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- Rule 12 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- Rule 12 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- 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- Rule 12 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- 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- Rule 12 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- 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- Rule 12 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- 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- Rule 12 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 64 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-