Rule 12.3. Notice of a Public-Authority Defense

(a) NOTICE OF THE DEFENSE AND DISCLOSURE OF WITNESSES.

(1) Notice in General. If a defendant intends to assert a defense of actual or believed

exercise of public authority on behalf of a law enforcement agency or federal

intelligence agency at the time of the alleged offense, the defendant must so notify an

attorney for the government in writing and must file a copy of the notice with the clerk

within the time provided for filing a pretrial motion, or at any later time the court sets.

The notice filed with the clerk must be under seal if the notice identifies a federal

intelligence agency as the source of public authority.

(2) Contents of Notice. The notice must contain the following information:

(A) the law enforcement agency or federal intelligence agency involved;

(B) the agency member on whose behalf the defendant claims to have acted; and

(C) the time during which the defendant claims to have acted with public authority.

(3) Response to the Notice. An attorney for the government must serve a written

response on the defendant or the defendant’s attorney within 14 days after receiving the

defendant’s notice, but no later than 21 days before trial. The response must admit or

deny that the defendant exercised the public authority identified in the defendant’s

notice.

(4) Disclosing Witnesses.

(A) Government’s Request. An attorney for the government may request in writing

that the defendant disclose the name, address, and telephone number of each witness

the defendant intends to rely on to establish a public-authority defense. An attorney for

the government may serve the request when the government serves its response to the

defendant’s notice under Rule 12.3(a)(3), or later, but must serve the request no later

than 21 days before trial.

(B) Defendant’s Response. Within 14 days after receiving the government’s request,

the defendant must serve on an attorney for the government a written statement of the

name, address, and telephone number of each witness.

(C) Government’s Reply

ernment serves its response to the

defendant’s notice under Rule 12.3(a)(3), or later, but must serve the request no later

than 21 days before trial.

(B) Defendant’s Response. Within 14 days after receiving the government’s request,

the defendant must serve on an attorney for the government a written statement of the

name, address, and telephone number of each witness.

(C) Government’s Reply. Within 14 days after receiving the defendant’s statement,

an attorney for the government must serve on the defendant or the defendant’s attorney

a written statement of the name of each witness—and the address and telephone

number of each witness other than a victim—that the government intends to rely on to

oppose the defendant’s public-authority defense.

(D) Victim’s Address and Telephone Number. If the government intends to rely on a

victim's testimony to oppose the defendant's public-authority defense and the defendant

establishes a need for the victim's address and telephone number, the court may:

(i) order the government to provide the information in writing to the defendant or

the defendant's attorney; or

(ii) fashion a reasonable procedure that allows for preparing the defense and also

protects the victim's interests.

(5) Additional Time. The court may, for good cause, allow a party additional time to

comply with this rule.

(b) CONTINUING DUTY TO DISCLOSE.

(1) In General. Both an attorney for the government and the defendant must promptly

disclose in writing to the other party the name of any additional witness—and the

address and telephone number of any additional witness other than the victim—if:

(A) the disclosing party learns of the witness before or during trial; and

(B) the witness should have been disclosed under Rule 12.3(a)(4) if the disclosing

party had known of the witness earlier.

(2) Address and Telephone Number of an Additional Victim-Witness. The address and

telephone number of an additional victim-witness must not be disclosed except as

provided in Rule 12.3(a)(4)(D).

(A) the disclosing party learns of the witness before or during trial; and

(B) the witness should have been disclosed under Rule 12.3(a)(4) if the disclosing

party had known of the witness earlier.

(2) Address and Telephone Number of an Additional Victim-Witness. The address and

telephone number of an additional victim-witness must not be disclosed except as

provided in Rule 12.3(a)(4)(D).

(c) FAILURE TO COMPLY. If a party fails to comply with this rule, the court may

exclude the testimony of any undisclosed witness regarding the public-authority

defense. This rule does not limit the defendant’s right to testify.

(d) PROTECTIVE PROCEDURES UNAFFECTED. This rule does not limit the court’s

authority to issue appropriate protective orders or to order that any filings be under seal.

(e) INADMISSIBILITY OF WITHDRAWN INTENTION. Evidence of an intention as to

which notice was given under Rule 12.3(a), later withdrawn, is not, in any civil or

criminal proceeding, admissible against the person who gave notice of the intention.

COMMENT TO 2017 AMENDMENTS

This rule incorporates the 2009 and 2010 amendments to Federal Rule of Criminal

Procedure 12.3. In accordance with the 2009 amendments to the federal rule, the 10-day

time periods were expanded to 14 days—an amendment that reflects the time-calculation

changes made to Rule 45. The 2010 amendments to sections (a) and (b) implement the

federal Crime Victims’ Rights Act (18 U.S.C. § 3771).

This rule, new to the Superior Court, is identical to the federal rule.