Amicus Curiae Brief — Taylor v. Illinois

supreme Court. 1 $

FILED

JU A ion?

No. 86-5963

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CLERK

Inu the Supreme Court of the United States

OCTORER TERM. 198%

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BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

QUESTION PRESENTED

Whether the Comou ,

TABLE OF CONTENTS

Interest of the United States

ee stints

Summary of Argument

Argument:

The Compulsory Process Clause does not prohibit

a trial court in every case from precluding a de

fense witness from testifying as a sanction for a

defense violation of a discovery requirement

A

The Compulsory Process Clause forbids only

arbitrary barriers to a defendant’s right to

offer a defense to the charges against him

teciprocal discovery statutes imposes a reason-

able condition on the presentation of defense

evidence

Precluding a defense witness from testifying

because of a discovery violation is not always

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an unreasonable or disproportionate sanction

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Preclusion was a permissible sanction in this

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case because tne defen e wW lf 1iiy violated Its

3s Pr ré rements

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Cases

State V.

State V Flohr.

State v. Mai, 294 Or. 269, 656 P.2d 315 (1982)

State v. Robert 6 Kan. 740, 602 P.2d 1555

(1979)

State v. Silt 118 R.L. 408, 374 A.2d 106 (1977)

State v. Smith, 88 N.M. 541, 543 P.2d 854 (Ct

App. 1975)

State v. Smith. 17 Ohio St.3d 98, 477 N F.2d 1128

(1985) 10),

State ex rel. Simos v. B e, 41 Wis.2d 129, 163

N.W.2d 177 (1968) 10),

vy, land v. Wa f 166 U.S. 668 (1984) i, 18,

Talia » Vv. State Md af 156 A.2d 29,

cert. denied, 461 U.S. 948 (19835) 10, 15, 16, 17

[’ vy. S fit 6 U.S i> (1964)

I’'nited States v. A 1°97 U.S. 97 (1976)

] tod States \ | ~ | d 1079 (9th Cir.)

cert. denied. 426 U.S. 948 (1976)

United States v. Balistri 779 F.2d 1191 (7th

Cir. 1985). cert. denied, No. 85-1653 (June 2

1986)

T’'nited States v. Be 975 F.2d 752 (9th Ci

1973) 8, 10

tod Stat BR 693 F.2d 8 (7th Ci

LYS2 )

[nit Stat Bryant, 439 F.2d 642 (D.C. Cir

1971)

j ted Stat vy. Oe ! I ad | (D.C

Cir. 1974) t enis U.S. 1087 (1976)

] ted Stat y. De 639 F.2d ) (5th Ci

L9S1)

] ted Stat Vv. Eel 159 F.2d 1451 (9th

(il 1YSD)

[’nited Stat Pitt 6 | 1 837 (10th Ci

19738) =

] 1 Stat f F.2d & (6th Cir.)

ert. denied, 459 U.S. 9 (1982)

[’nit Stat ( F.2d ) (Sth Cir

isl)

Continued

Dodd, 101 Ariz. 234, 418

(1966)

201 N.W.2d 367 (N.D. 1980) LO

'nited

Continued:

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U.S. 1078 (1981

131 U.S. 783 (1977)

04 U.S. 307 (1971)

4 F.2d 484 (10th

69 F.2d 4 (Sth ¢

O83 (Ma Lore

149 U.S. 3 (198)

Cases—Continued : Page

United States ex rel. Enoch v. Hartigan, 768 F.2d

161 (7th Cir. 1985), cert. denied, No. 85-539

(Mar. 3, 1986) 10, 16

l’nited States « rel. Robinson Vv. McGinnis, 593

F. Supp. 175 (C.D. Ill. 1984), aff'd mem., 753

F.2d 1078 (7th Cir.), cert. denied, 471 U.S

1}

16 (1985) 16

Wainwright v. Sykes, 433 U.S. 72 (1977) LS

Wardius v. Oregon, 412 U.S. 470 (1973) 12, 15, 14, 19

Washinoton Vv. Teras, 388 U.S. 14 (1967) ll, i2, 15

Webb v. Texas, 409 U.S. 95 (1972) 1]

Williams Vv. Florida, 399 U.S. 78 (1970) 13, 14, 15, 25

Constitution, statutes, and rules

Amend. VI (Compulsory Process Clause) assin

Amend. AIV (Due Process Clause) . Bae 2

Jencks Act

lll. Ann. Stat. ch. LLOA (Smith-Hurd 1985

para. 412

para. 41

Rule 12.1(d)

Rule 12.2 |

Rule 16(d) (2) I

Rule 17 (b)

Iu the Supreme Court of the United States

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BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

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wane | A TRIAL COURT IN EVERY CASE PROW

Pri ‘ 1 DEFENSE WITNESS FPROW TES)

ryt ‘ , SANCTION FOR A DEFENSE VIOLA

rrON M“COVERY REOULIREWENT

10

1. The Compulsory Process Clause Forbids Only Arbi

trary Barriers To A Defendant’s Right To Offer A

Defense To The Charges Against Him

Petitioner contends Br LD that Line ( mpulisol

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rocess Ulause guarantees the defenda! he right to pre-

sent a defense at tria That right, he claims, i Violated

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Oy x¢ j , aA gcertense Vi_Lnes ince ‘ dt isti ans

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‘D1 Te . ; 55 iv. 41 : ; 1 834

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tions are available. The premise of that argument. how-

ever, is overbroad. The Compulsory Process Clause does

ensure the accused the right to offer a defense at trial,

but it does so primarily, as its text indicates, by enabling

him to compel witnesses to be present US. Const

Amend. VI (“In all criminal prosecutions, the accused

shall enjoy the right * * * to have compulsory process

for obtaining witnesses in his favor.”): see Blackmer \

United States, 284 U.S. 421, 442 (1932 referring to

the right to subpoena defense witnesses).* A subsidiary

feature of the Clause is that it prohibits the application

of arbitrary proced iral o evidentiary rule preventing a

defendant fron offering relevant evidence at trial to sup

pe rT a cs fey ‘ Pov Ih \ lrka) sa8. No f) 130 | ine ??

1987 Chambers V. Mississippi, 410 U.S. 284 1973

Washington Vv. Texas, 388 U.S. 14 (1967): see also Webb

the Court’s decisions in Washington. (

am bs and

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Rock did not significantly curtail the freedom of legisla

es and courts to devise rules governing criminal trials

_rucial to the Court's decision in each case was the dete:

t10n that the particular restriction at issue was ar

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b. Reciprocal! Discovery Statutes

(ondition On The Presentation

Impose

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‘ Preciuding A Defense Witness From Testifving rk

cause tf 1, Thiercoeverw Vielation Ie Not L\iwavs in

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missible sanction for a defense violation « a qa é

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requirement, regardless of the circumstances. We be

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lieve that in some cases preclusion will be the only effe

ive re medy for a discovery violation. While preclusi n

} r) ly nd } ld not alwavs he mposed. it

Ss a severe re POV ant snoutk ni a a\ ny ea, |

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IS sometime a necessary penalty a d should be a per-

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missibie one

l ly some Cast reciuslo! l necessary to ensure

(nat a dls er’ anction 1S not tootniess For exampl

nting the rosecution ; continuance to que O! Ol

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nvestlg e a newly-identified witness Ss no an On a

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ce f prose O! aiways cou ave SOUL a

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( ? ? ] nes ip se) } rec ren C1Sct ery requirem ? |

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inexpected. evidence had surfaced at tri: Limiting the

! €cutiol tO S@@Kl! a continuance th IS WOUIG Nave no

to) . feet n defens tio? f } | ra-

f re CTT e< gqelt { OUlALIONS OL GISCOVery ODI1va

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ons Mi reo r, roreing the prosecution to obta na con-

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by disrupting the tri: Denying a defendant addition:

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inSCcoyVe \ may ais Lt Liv es a y a ail, eCa USE

, at cy? YY ‘ \ ala Cc " ‘ ta rh ¢ wn ‘ ra nNroser 1 on has

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ready introduced or disclosed most or all of its evi-

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lence iS Of lrred 1n tnis case Finally, the risk of be ng

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(] ? ( nren | VY iy no Ti re; rT TO : (lf fend: rn? 1 Ae ne

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engthy period of incarceration on the principal charge

T} is¢ aoe | ny f PY ] ble neglect T the presenta

, ‘ ' witns } fret hy me Ley wy loring ty } It

love . ‘ "< nt the TT whether the preclu ' not n YF " he

| | ! { tnat s unintent na but nonetheles re

i!f . re ' eT the prose ] n

D) L101 At t 237, 418 P.2d at 574: State v. B 906 A.2d

130: 7 v. Ss te, 295 Md. at 389. 456 A.2d at 26: Stat.

vy. Flok 01 N.W.2d at 372; State ex rel. Simos v. Burke. 41 Wis

2d at 139-140, 163 N.W.2d at 182: |] tell od J. Cri |

Pre n sSanct f Def r, ol ft C} l fey

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avalns nim Set ] mm 2 i | | » > f S45

(1970

Petitioner favors imposing a penalty defense coun-

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sel, bu here is no guarantee that tl proach wil

ciplinary action to be remote and may take the risk of

receiving a small fine for contempt. Moreover, contempt

will not suffice—and usually will not even be appro-

priate—where it is the defendant’s fault that a witness’:

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identity was del berately withheld. The threat of con-

tempt against defense counsel will do little or nothing to

discourage a defendant from identifying a known witness

only after trial has begun, and in that event the prospect

of a contempt sanction may create a conflict of interes

between the attorney and his client. Even if referring

defense counsel to the disciplinary committee of the loca

bar deters some attorneys from violating discovery rules,

that remedy will not ensure that a particular witness

ifies truthfully. Where the belated identification of

a witness bears the earmarks of a defense fabricated to

meet the prosecution’s evidence—as the trial judge found

+ | ‘ -

0 be the case here—a contempt sanction does little or

nothing to ensure the fairness of a particular proceeding

or the accuracy of a particular verdict.

Nor is it true that preclusion necessarily punishes the

defendant for his attorney’s error. Normally, the require-

ment that a defendant provide a witness list is trig

gered by a request from the prosecution. At that point.

defense counsel will confer with his client about the list.

Defense counsel will ordinarily rely on the accused to

identify relevant witnesses. See Strickland v. Washina-

ton, 466 U.S. 668, 691 (1984). If the defendant is not

in custody, counsel will rely on the defendant to help

locate them. Defense counsel will also often explain the

importance of listing all witnesses in order to comply

with the statute or rule. The blame for failing to list

a witness ma\ neretore oltten be laid a he defe dar -

doorstep.

19 ~(-

The- importance of having preclusion as an available

sanction is evidenced by the fact that most states and

the federal government authorize preclusion for a viola-

tion of alibi disclosure requirements. E.g., Fed. R. Crim.

P. 12.1(d)."* Indeed, in many states preclusion is the

sole remedy for alibi disclosure violations.’* The legisla-

13 See Rule 12.1 advisory committee notes, 18 U.S.C. App. at

591; Taliaferro v. State, 295 Md. at 387, 456 A.2d at 35; Epstein,

supra, 55 J. Crim. L. Criminology & Police Sci. at 35; Comment.

supra, 51 U. Chi. L. Rev. at 260, 281-285.

The advisory committee notes on Rule 12.1 stated (18 U.S.C.

App. at 591): “The court [in Wardius v. Oregon, 412 U.S. 470

(1973) | said that it did not consider the question of the ‘validity

of the threatened sanction, had petitioner chosen not to comply

with the notice-of-alibi rule.’ * * * Rule 12.1(e) provides that the

court may exclude the testimony of any witness whose name has

not been disclosed pursuant to the requirements of the rule. The

defendant may, however, testify himself. Prohibiting from testify-

ing a witness whose name was not disclosed is a common provision

in state statutes. See Epstein, [Advance Notice of Alibi, 55 J. Crim.

L. Criminology & Police Sci. 29, 35 (1964) 1. It is generally assumed

that the sanction is essential if the notice-of-alibi rule is to have

practical significance. See Epstein, supra, at 36. The use of the

term ‘may’ is intended to make clear that the judge may allow the

alibi witness to testify if, under the particular circumstances, there

is cause shown for the failure to conform to the requirements of

the rules. This is further emphasized by subdivision (f) which

provides for exceptions whenever ‘good cause’ is shown for the

exception.”

This rule as finally formulated was identical to the original

version submitted by this Court to Congress. The House bill on

Rule 12.1(d) as submitted to the House Committee would have

made exclusion of alibi witnesses the mandatory sanction if the

defense failed to comply with the disclosure requirements. H.R.

6799, 94th Cong., Ist Sess. (1975); see United States v. Smith,

524 F.2d at 1290 n.5.

14 Taliaferro Vv. State, 295 Md. at 387, 456 A.2d at 35-36: Com-

ment, supra, 51 U. Chir L. Rev. at 260. In 1984, notice-of-alibi

rules or statutes were in effect in 41 states and the District of

Columbia. Comment, supra, 51 U. Chi. L. Rev. at 259-260, 281-285.

Most jurisdictions have an express provision for the exclusion of

alibi witness. Taliaferro v. State, supra.

tive judgment that preclusion is sometimes necessary 1s

also reasonable. As this Court explained in Nationa

Hockey League Vv. Metropolitan Hockey Club, Inc., 427

U.S. 639, 643 (1976) (upholding dismissal of the plain-

tiff’s complaint under Fed. R. Civ. P. 37 for discovery

violations made in bad faith), “here, as in other areas

of the iaw, the most severe in the spectrum or sanctions

provided by statute or rule must be available to the dis-

;

rict court in appropriate cases, not merely to penalize

those whose conduct may be deemed to warrant such a

sanction, but to deter those who might be tempted to such

conduct in the absence of such a deterrent.”

This Court has also recognized that a preclusion remedy

is not invariably inconsistent with the Sixth Amendment.

In United States v. Nobles, 422 U.S. 225 (1975), the

Court upheld a trial eourt’s order excluding a defense in-

vestigatur’s testimony after defense counsel had refused

to disclose his report to the government. The Court

pointed out that “[t]he Sixth Amendment does not con-

fer the right to present testimony free from the legiti-

mate demands of the adversarial system; one cannot in-

voke the Sixth Amendment as a justification for present-

been a half-truth.” 422 U.S. at 241.

Moreover. the Court was unwilling to render hollow the

I ave

ing what mig!

requirement tnat tne defendant disclose the investigator s

|

report TO Tne or vernme ni n\ aiiowin’g his violation TO a8

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unremedied. Deciding. as we do, that it was within

the court’s discretion to assure that the jury would hear

. 17 . . . } }

the full testimon' or tne i1nve iwator ratner tnan a

+ yey 1-4 | , +) 1% os a) ; : | —", UW thin! +

truncated portion tavorabie to respondent, we (tnink 1

would be artificial indeed to deprive the court of the

power to effectuate that judgment” (7bid.

In Nobles, nondisclosure would have hampered the

prosecutor's ability to cross-examine a defense witness.

A defendant’s failure to disclose the names of his wit-

° ant : : aah ;

nesses before trial may have a similar effex . pecause

depriving the government of the opportunity to investi-

gate the witnesses will often impair the effectiveness of

21

the prosecution’s cross-examination. In both cases, the

existence of a preclusion sanction does not interfere with

the defendant’s right to present a defense. The defendant

has an unimpeded right to offer evidence, as long as he

complies with reasonable discovery rules applicable to

that evidence.

The fact that relevant defense evidence may be ex-

cluded is neither unusual nor fundamentally unfair. The

Court has recognized that defense evidence can be ex-

cluded or lost in a variety of other settings without

violating the Constitution. For example, in the case of

a violation of a sequestration order by a defense witness.

the court has the discretion to remedy tne violation by

precluding the witness from testifying. See Holder v.

United States. 150 U.S. 9] (1893): see also Rowan V.

Owens, 752 F.2d 1186, 1191 (7th Cir. 1984): United

States V. McClure, 734 F.2d 484, 495 (10th Cir. 1984):

United States v. Gibson, 675 F.2d 825, 835-836 (6th

Cir.), cert. denied, 459 U.S. 972 (1982), Compare Dut-

ton V. Brown, 812 F.2d 593, 599-602 (10th Cir. 1987)

‘en banc) (exclusion at the sentencing stage of a capital

case found improper). Similarly, the denial of a defense

request for a continuance may prevent a defendant from

presenting evidence, but not every denial of a continuance

“violates due process even if the party fails to offer evi-

dence or is compelled to defend without counse],”’ Ungar

y. Sarafite. 376 U.S. 575. 5R9 (1964): see also /saacs Vy.

l’nited States. 159 US. 187. 189 (1895 : Crumpton V.

United States, 138 U.S. 361, 364-365 (1891). Another

such example is provided by the case of potential defense

witnesses who are excused from testifying because of

their assertion of the privilege against compulsory self-

incrimination. Except in unusual cases, the courts have

held that a defendant has no Sixth Amendment right to

demand that the witness be given immunity so that he

can testify. Cf. Pillsbury Co. v. Conboy, 459 U.S. 248,

261-262 (1983)."° Finally, preindictment delay by the

'* The courts of appeals have overwhelmingly ruled that judges

: juag

may not immunize prospective defense witnesses without a request

22

prosecution may result in the prejudicial loss of evidence

to the defense, but the Court has held that no constitu-

tional violation is established unless the government has

manipulated the delay to gain a tactical advantage at

trial. United States v. Lovasco, 431 U.S. 783, 795 & n.17

(1977): United States v. Marion, 404 U.S. 307, 324

(1971)

In sum, although preclusion is a severe remedy, the

countervailing considerations are insufficient to justify

an absolute ban on its use. The other remedies that

petitioner proposes may not discourage violations of the

discovery rule, and an absolute ban on preclusion could

make a nullity out of reciprocal discovery. The policy

question whether preclusion should be an available pen-

alty should be left to Congress and the state legislatures,

who should be free to conclude for criminal cases, as this

Court determined in the National Hockey League case

for civil litigation, that a severe remedy is sometimes

necessary to enforce a defendant’s discovery obligations.

2. A balancing test is appropriate in a particular case

to determine what penalty, if any, should be imposed for

a violation of a discovery rule. A flagrant violation, for

from the prosecution. See, e.g., United States Vv. Whittington,

783 F.2d 1210, 1219-1220, on reh’g, 786 F.2d 644 (5th Cir.

1986), cert. denied, No. 85-1974 (Oct. 14, 1986); United States

v. Pennell, 737 F.2d 521, 526-528 (6th Cir. 1984), cert. denied,

i69 U.S. 1158 (1985); United States Vv. Gottesman, 724 F.2d 1517,

1524 (llth Cir. 1984); United States v. Bounos, 693 F.2d 38, 39

7th Cir. 1982); United States v. Hunter, 672 F.2d 815, 818 (10th

Cir. 1982): United States v. Karas, 624 F.2d 500, 505 ith Cir

1980), cert. denied, 449 U.S. 1078 1981); United States \V

Turkish, 623 F.2d 769, 771-779 (2d Cir. 1980), cert. denied, 449

U.S. 1077 (1981); United States Vv. Graham, 548 F.2d 1302, 1515

Sth Cir. 1977); United States v. Caldwell, 543 F.2d 1333, 1356

n.115 (D.C. Cir. 1974), cert. denied, 423 U.S. 1087 (1976); United

States v. Alessio, 528 F.2d 1079, 1081-1082 (9th Cir.), cert. de-

nied, 426 U.S. 948 (1976 gut cf. Government of Virgin Islands

Vv. Smith, 615 F.2d 964 (3d Cir. 1980 holding that a district

court may immunize a defense witness when he possesses essential

exculpatory information that is unavailable from other sources

23

example, differs from a technical or negligent one, and

should be treated differently. The trial court should

therefore consider a variety of factors in deciding upon

the proper sanction, such as the nature of the violation

(1.e., whether it was technical or in bad faith) ; the tim-

ing of the disclosure (i.e., whether the disclosure was un-

timely but in advance of trial, or whether it occurred

well into trial); the diligence shown by the defense to

uncover the witness before trial; the strength of each

party’s case; the identity of the person to be barred; '

the prejudice suffered by the prosecution; and the extent

to which alternative penalties can remedy the violation.

After considering these factors, the ccurt should weigh

the need for exclusion against the defendant’s opportunity

to present a defense and should attempt to tailor the

remedy to the wrong.'’ If the court’s assessment of the

competing interests is seriously flawed, the use of pre-

clusion as a remedy can result in a constitutional viola-

tion.

That approach is consistent with the decisions of the

federal courts applying the Jencks Act, 18 U.S.C. 3500.

The sanctions provision of the Jencks Act, 18 U.S.C.

3500(d), authorizes the courts to strike the testimony of

a government witness if the government fails to provide

the accused with a statement made by the witness relat-

ing to the subject matter of his testimony. The courts

of appeals have uniformly concluded that, absent a delib-

16 Preclusion would ordinarily be deemed unreasonable if it were

the defendant who was barred from testifying, since the prosecu-

tion will be prepared to refute the defendant’s version of the

events before trial commences. See Alicea v. Gagnon, 675 F.2d at

923-924. The Federal Rules of Criminal Procedure provide that

the defendant may not be prohibited from testifying because of a

violation of an alibi disclosure requirement. Fed. R. Crim. P.

12.1(d).

'™ Compare Societe Internationale v. Rogers, 357 U.S. 197 (1958)

(interpreting Fed. R. Civ. P. 37); cf. United States v. Morrison,

449 U.S. 361, 365 (1981) (“[o]ur approach has thus been to iden-

tify and then neutralize the taint by tailoring relief appropriate in

the circumstances to assure the defendant * * * a fair trial’’).

24

erate refusal by the government to disclose a witness’s

statement, a trial court is not required to strike the testi-

mony of a witness whose statement has not been turned

over to the defense. Rather, trial courts have the discre-

tion to formulate an appropriate remedy and should con-

sider both the government’s culpability and the extent to

which the defendant has been prejudiced.'* Thus, just as

the federal courts have been reluctant to preclude a gov-

ernment witness because of a Jencks Act violation, a

lesser remedy than preclusion will often be appropriate

as a sanction for a defendant’s discovery violation.’

There are two important practical considerations to

guide the foregoing general principles. First, in selecting

an appropriate remedy, a trial court should be entitled to

consider whether a newly-identified witness is credible.

The inquiry in this context is similar to the determina-

tion whether a defendant is entitled to a new trial on the

basis of newly-discovered evidence, where a court has the

authority to assess the credibility of the new evidence.

See, ¢.g., United States v. Wright, 625 F.2d 1017, 1019

(Ist Cir. 1980). Moreover, given the ease of fabricating

18 See, e.g., United States v. Gotchis, 803 F.2d 74, 78 (2d Cir.

1986) ; United States v. Balistrieri, 779 F.2d 1191, 1220-1221 (7th

Cir. 1985), cert. denied, No. 85-1653 (June 23, 1986); United

States Vv. Moeckly, 769 F.2d 453, 464 (8th Cir. 1985), cert. denied,

No. 85-1083 (May 5, 1986); United States v. Echeverry, 759 F.2d

1451, 1456 (9th Cir. 1985); United States v. Tashjian, 660 F.2d

829, 839 (1st Cir.), cert. denied, 454 U.S. 1102 (1981); United

States Vv. Pone, 574 F.2d 320, 322-327 (6th Cir.), cert. denied, 439

U.S. 868 (1978); United States v. Bryant, 439 F.2d 642, 651 (D.C.

Cir. 1971).

19 At the same time, a state may place the burden on the default-

ing party to show good cause why exclusion is not warranted

under the circumstances. The offending party may be given the

burden of showing why the sanction is excessive and suggesting

to the court that alternative sanctions are more appropriate. And

where there is no suggestion that alternative sanctions be em-

ployed, a trial court may properly exclude a witness without ex-

plaining why it did not use such penalties. State v. Boucino, 506

A.2d at 131; see United States v. Smith, 524 F.2d at 1289-1290.

~t

an alibi defense (Williams v. Florida, 399 U.S. at 81),

a court should be entitled to determine whether a newly-

disclosed alibi witness is likely to offer perjured testi-

mony. In some cases, this consideration is likely to help

the defendant: if a trial court determines that the de-

fense meets the standard for obtaining a new trial on the

basis of newly-discovered evidence (see United States v.

Agurs, 427 U.S. 97, 111 (1976)), that conclusion mili-

tates in favor of permitting the accused to introduce the

witness.

Second, a trial court need not interrupt a trial to hold

an evidentiary proceeding to determine whether the de-

fendant, his lawyer, or both are responsible for the viola-

tion. Rather, the court is entitled to presume that de-

fense counsel was competent (see Strickland v. Washing-

ton, 466 U.S. at 690) and discussed the defense discovery

requirements with his client. Thus, a discovery violation

ordinarily can be charged to the accused. See Murray v.

* At the same time, there are addi-

tional safeguards to ensure that an innocent person is

not convicted. A defendant can always attempt to show

that the violation was attributable to his attorney’s care-

lessness, for instance, and that counsel was constitution-

ally ineffective. See Strickland v. Washington, supra.

Carrier, slip op. 7.

Moreover, a witness should not be barred from testifying

-° As the Court held in Murray Vv. Carrier, slip op. 7: “So long

as a defendant is represented by counsel whose performance is not

constitutionally ineffective under the standards established in

Strickland Vv. Washington, supra, we discern no inequity in requir-

ing him to bear the risk of attorney error that results in a pro-

cedural default.” See also Link v. Wabash R.R., 370 U.S. 626,

633-634 (1962) (citation omitted) (“Petitioner voluntarily chose

this attorney as his representative in the action, and he cannot

now avoid the consequences of the acts or omissions of this freely

selected agent. Any other notion would be wholly inconsistent

with our system of representative litigation, in which each party

is deemed bound by the acts of his lawyer-agent and is considered

to have ‘notice of all facts, notice of which can be charged upon the

attorney.’ ”’).

26

if his exclusion would result in a miscarriage of justice.

Accordingly, in an extraordinary case, where the court

concludes that preclusion would probably result in the

conviction of a person who is actually innocent, a preclu-

sion sanction should not be used, even if the other criteria

would support the exclusion of the defense witness. In

such a case the use of the preclusion sanction would be

an error of constitutional dimension. See Murray v. Car-

rier, slip op. 15.

D. Preclusion Was A Permissible Sanction In This Case

Because The Defense Willfully Violated Its Discovery

Requirements

In this case, it is clear that Wormley was deliberately

excluded from the witness list, and the trial court so

found (J.A. 28). The trial court determined that “this is a

blat{a]nt violation of the discovery rules, [a] willful vio-

lation of the rules,” done for the “purpos[e] [of] * * *

get([ting] an edge for [petitioner]” (ibid.). The dis-

covery violation was aggravated when defense counsel

did not mention Wormley or his expected testimony in

his opening statement, and when he postponed disclosure

of Wormley’s name until the State had already presented

its two most important witnesses. Those facts alone

would be sufficient to sustain the trial court’s preclusion

ruling, because they manifest a clear design on the part

of defense counsel to flout the discovery rules in an effort

to gain a tactical advantage for retitioner. But there

is more.

Wormley was not an eyewitness to the fracas or the

shooting. Aithough he stated that he saw Bridges hand

a wianket containing two guns te his then-girl friend,

Wormley’s testimony was not directly exculpatory, and

in any event the trial court expressed grave doubts about

the credibisity of Wormley’s story (J.A. 28). This case

was therefore not one in which the exclusion of a defense

witness resulted in the conviction of a person who was

probably innocent. Finally, petitioner failed to demon-

rae |

strate to the dis‘ rict court that preclusion was an ‘nappro-

priate remedy. While the court mentioned that disciplinary

proceedings against defense counsel might be appro} riate,

petitioner did not suggest to the trial court that preclu-

sion was excessive to the point of being unconstitutional,

nor did he suggest an alternative sanction that would

have given effect to the discovery requirement. Under

these circumstances, the Compulsory Process Claise was

not violated, because the trial court fairly exe sed its

discretion in excluding a witness who haa bee. delib-

arately omitted from the witness list, and whos exclu-

sion, in the court’s view, would not lead to a miscarriage

of justice in the case.

CONCLUSION

The judgment of the Appellate Court of Illinois, First

District, should be affirmed.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F.. WELD

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

SIDNEY M. GLAZer

Attorney

JULY 1987

U. S&S. GOVERNMENT PRINTING OFFice; 1967 161463 40412