Sanctions for Not Producing a Statement Clause Samples

Sanctions for Not Producing a Statement. If a party disobeys a Rule 26.2 order to deliver a statement to the moving party, the mag- istrate judge must not consider the testimony of a witness whose statement is withheld. (Added Apr. 24, 1972, eff. Oct. 1, 1972; amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009.) NOTES OF ADVISORY COMMITTEE ON RULES—1972 Rule 5.1 is, for the most part, a clarification of old rule 5(c). Under the new rule, the preliminary examination must be conducted before a ‘‘federal magistrate’’ as de- fined in rule 54. Giving state or local judicial officers authority to conduct a preliminary examination does not seem necessary. There are not likely to be situa- tions in which a ‘‘federal magistrate’’ is not ‘‘reason- ably available’’ to conduct the preliminary examina- tion, which is usually not held until several days after the initial appearance provided for in rule 5. (a) makes clear that a finding of probable cause may be based on ‘‘hearsay evidence in whole or in part.’’ The propriety of relying upon hearsay at the preliminary examination has been a matter of some un- certainty in the federal system. See ▇. ▇▇▇▇▇▇, Federal Practice and Procedure: Criminal § 80 (1969, Supp. 1971); 8 ▇. ▇▇▇▇▇, Federal Practice ¶ 504[4] (2d ed. Cipes 1970, Supp. 1971); Washington ▇. ▇▇▇▇▇▇▇, 339 F.2d 715, 719 (D.C. Cir. 1964); Washington ▇. ▇▇▇▇▇▇▇, 339 F.2d 725, 728 (D.C. Cir. 1964); ▇▇▇▇ ▇. ▇▇▇▇▇▇, 380 F.2d 557, 565 (D.C. Cir. 1967); Ho ard v. United States, 389 F.2d 287, 292 (D.C. Cir. 1967); ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, The Congressional Invi- tation to Avoid the Preliminary Hearing: An Analysis of Section 303 of the Federal Magistrates Act of 1968, 67 Mich.L.Rev. 1361, especially n. 92 at 1383 (1969); ▇. ▇▇▇▇▇▇, The Rules of Evidence Applicable to Hearings in Probable Cause, 37 Conn.▇.▇. 561 (1963); Comment, Preliminary Examination—Evidence and Due Process, 15 Kan.L.Rev. 374, 379–381 (1967). A grand jury indictment may properly be based upon hearsay evidence. ▇▇▇▇▇▇▇▇ v. United States, 350 U.S. 359 (1956); 8 ▇. ▇▇▇▇▇, Federal Practice ¶ 6.03[2] (2d ed. Cipes 1970, Supp. 1971). This being so, there is practical ad- vantage in making the evidentiary requirements for the preliminary examination as flexible as they are for the grand jury. Otherwise there will be increased pres- sure upon United States Attorneys to abandon the pre- liminary examination in favor of the grand...