United States v. Holmes

346 A.2d 517, 1975 D.C. App. LEXIS 273

Opinions

ON PETITION FOR REHEARING

PER CURIAM:

In a petition for rehearing the government has called to the court’s attention the fact that Congress deleted from the proposed amendments to the Federal Rules of Criminal Procedure which were referred to it by the Supreme Court of the United States the provision for the production in criminal cases of the names and addresses of witnesses upon request. [Fed.R.Crim.P. 16(a)(1), (e)]. See Pub.L. 94-64 (1975). The government cites this action as being a conclusive determination “that Congress has formulated a national policy against the disclosure of witnesses’ names and addresses.” It in effect requests the panel to reverse its decision in this case and adopt a similar broad policy forbidding pretrial discovery of its witnesses.¹

This court has never said that the names and addresses of government witnesses must be disclosed in the routine criminal case. It has in this appeal held that in the uncommon case, upon a strong showing of particularized need, the trial court may in its discretion order such disclosure.² The unusual combination of circumstances present here were, in short, the charge of first degree murder which until recently would mandate production of witness lists;³ premeditation, vel non, as the only question at issue; appellant’s extreme intoxication, and appellant’s demonstrated inability to locate the witnesses otherwise. Thus, by allegations of manifest necessity the defense made a threshold showing of the singular need for its discovery request. The government was then afforded the opportunity to oppose the request. The trial judge considered the exceptional circumstances underlying the discovery request, carefully balanced the opposing interests,' and found that the appellant had made a strong showing of particularized need which substantially outweighed the government’s interest in nondisclosure. We found no abuse of discretion.

The government cites the potential dangers of witness’ disclosure in some criminal cases: vis, that it discourages the reporting of crime and witnesses’ attendance at trial; places the witnesses’ safety in jeopardy, and facilitates perjured testimony in defense. These matters are of obvious concern not only to Congress and the public, but to this court and to the conscientious members of the trial bench as well. Indeed, in this very case the trial court was careful to set specific protective conditions to its disclosure order to guard against these potential dangers even though the government made no claim that the safety of any particular witness was in jeopardy. There is, therefore, no cause to believe that a trial judge would disregard the vital concern of the government in protecting its witness if called upon to rule on the question of disclosure.

Congress did not require mandatory disclosure of the names and addresses of government witnesses as had been proposed. Neither did it mandate nondisclosure. Thus, there remains a narrow area of authority in the trial court allowing for the exercise of discretion to order pretrial disclosure of government witnesses. Our decision made clear that the use of this authority is to be reserved for the rare criminal case in which the defense can conclusively demonstrate a compelling need for disclosure such as to overcome the government’s strong interest in nondisclosure.

The petition for rehearing is denied.

1 . Both Congress and the United States Attorney recognize that disclosure may be required when nondisclosure would constitute a deprivation of due process.

2 . We had earlier acknowledged the existence of such discretionary authority in Davis v. United States, D.C.App., 315 A.2d 157 (1974).

3 . The Supreme Court will this term again consider the constitutionality of a statute which permits the imposition of capital punishment for certain criminal offenses. Fowler v. North Carolina, 419 U.S. 963, 95 S.Ct. 223, 42 L.Ed.2d 177 (1974).