Common use of Sanctions for Not Producing a Statement Clause in Contracts

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 X. Xxxxxx, Federal Practice and Procedure: Criminal § 80 (1969, Supp. 1971); 8 X. Xxxxx, Federal Practice ¶ 504[4] (2d ed. Cipes 1970, Supp. 1971); Washington x. Xxxxxxx, 339 F.2d 715, 719 (D.C. Cir. 1964); Washington x. Xxxxxxx, 339 F.2d 725, 728 (D.C. Cir. 1964); Xxxx x. Xxxxxx, 380 F.2d 557, 565 (D.C. Cir. 1967); Ho ard v. United States, 389 F.2d 287, 292 (D.C. Cir. 1967); Xxxxxxxx and Xxxxxxxx, 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); X. Xxxxxx, The Rules of Evidence Applicable to Hearings in Probable Cause, 37 Conn.X.X. 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. Xxxxxxxx v. United States, 350 U.S. 359 (1956); 8 X. Xxxxx, 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 jury indict- ment. See X. Xxxxxx, Federal Practice and Procedure: Criminal § 80 at p. 143 (1969). New York State, which also utilizes both the preliminary examination and the grand jury, has under consideration a new Code of Criminal Procedure which would allow the use of hear- say at the preliminary examination. See XxXxxxxx’x Session Law News, April 10, 1969, pp. A119–A120. For the same reason, subdivision (a) also provides that the preliminary examination is not the proper place to raise the issue of illegally obtained evidence. This is current law. In Giordenello v. United States, 357 U.S. 480, 484 (1958), the Supreme Court said: [T]he Commissioner here had no authority to adju- dicate the admissibility at petitioner’s later trial of the heroin taken from his person. That issue was for the trial court. This is specifically recognized by Rule 41(e) of the Criminal Rules, which provides that a de- fendant aggrieved by an unlawful search and seizure may ‘‘* * * move the district court * * * to suppress for use as evidence anything so obtained on the ground that * * *’’ the arrest warrant was defective on any of several grounds.

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 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 X. Xxxxxx, Federal Practice and Procedure: Criminal § 80 (1969, Supp. 1971); 8 X. Xxxxx, Federal Practice ¶ 504[4] (2d ed. Cipes 1970, Supp. 1971); Washington x. Xxxxxxx, 339 F.2d 715, 719 (D.C. Cir. 1964); Washington x. Xxxxxxx, 339 F.2d 725, 728 (D.C. Cir. 1964); Xxxx x. Xxxxxx, 380 F.2d 557, 565 (D.C. Cir. 1967); Ho ard v. Xxxxxx x. United States, 389 F.2d 287, 292 (D.C. Cir. 1967); Xxxxxxxx and Xxxxxxxx, 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); X. Xxxxxx, The Rules of Evidence Applicable to Hearings in Probable Cause, 37 Conn.X.X. 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. Xxxxxxxx v. United States, 350 U.S. 359 (1956); 8 X. Xxxxx, 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 jury indict- ment. See X. Xxxxxx, Federal Practice and Procedure: Criminal § 80 at p. 143 (1969). New York State, which also utilizes both the preliminary examination and the grand jury, has under consideration a new Code of Criminal Procedure which would allow the use of hear- say at the preliminary examination. See XxXxxxxx’x Session Law News, April 10, 1969, pp. A119–A120. For the same reason, subdivision (a) also provides that the preliminary examination is not the proper place to raise the issue of illegally obtained evidence. This is current law. In Giordenello v. United States, 357 U.S. 480, 484 (1958), the Supreme Court said: [T]he Commissioner here had no authority to adju- dicate the admissibility at petitioner’s later trial of the heroin taken from his person. That issue was for the trial court. This is specifically recognized by Rule 41(e) of the Criminal Rules, which provides that a de- fendant aggrieved by an unlawful search and seizure may ‘‘* * * move the district court * * * to suppress for use as evidence anything so obtained on the ground that * * *’’ the arrest warrant was defective on any of several grounds.

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 ruleTITLE 18, the preliminary examination must be conducted before a ‘‘federal magistrate’’ as de- APPENDIX—RULES OF CRIMINAL PROCEDURE Page 28 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 X. Xxxxxx, Federal Practice and Procedure: Criminal § 80 (1969, Supp. 1971); 8 X. Xxxxx, Federal Practice ¶ 504[4] (2d ed. Cipes 1970, Supp. 1971); Washington x. Xxxxxxx, 339 F.2d 715, 719 (D.C. Cir. 1964); Washington x. Xxxxxxx, 339 F.2d 725, 728 (D.C. Cir. 1964); Xxxx x. Xxxxxx, 380 F.2d 557, 565 (D.C. Cir. 1967); Ho ard v. United States, 389 F.2d 287, 292 (D.C. Cir. 1967); Xxxxxxxx and Xxxxxxxx, 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); X. Xxxxxx, The Rules of Evidence Applicable to Hearings in Probable Cause, 37 Conn.X.X. 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. Xxxxxxxx v. United States, 350 U.S. 359 (1956); 8 X. Xxxxx, 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 jury indict- ment. See X. Xxxxxx, Federal Practice and Procedure: Criminal § 80 at p. 143 (1969). New York State, which also utilizes both the preliminary examination and the grand jury, has under consideration a new Code of Criminal Procedure which would allow the use of hear- say at the preliminary examination. See XxXxxxxx’x Session Law News, April 10, 1969, pp. A119–A120. For the same reason, subdivision (a) also provides that the preliminary examination is not the proper place to raise the issue of illegally obtained evidence. This is current law. In Giordenello v. United States, 357 U.S. 480, 484 (1958), the Supreme Court said: [T]he Commissioner here had no authority to adju- dicate the admissibility at petitioner’s later trial of the heroin taken from his person. That issue was for the trial court. This is specifically recognized by Rule 41(e) of the Criminal Rules, which provides that a de- fendant aggrieved by an unlawful search and seizure may ‘‘* * * move the district court * * * to suppress for use as evidence anything so obtained on the ground that * * *’’ the arrest warrant was defective on any of several grounds.