PRETRIAL CONFERENCE
The pre-trial conference provided for by FED. R. CRIM. P. Rule 17.1 may be held at any time after the indictment or information is filed at the request of either party. In many jurisdictions such conferences are had as a matter of course on the court’s own motion and are often informal in nature. However, the Committee on Pre-Trial Procedures recommends that such proceedings be held in open court and transcribed. Recommended Procedures in Criminal Pretrials, F.R.D. 75, 97 (1965).
This conference which has a broad mandate, gives the parties an opportunity to dispose of various types of pre-trial matters including:
- resolution of unresolved discovery questions; US Westmoreland, 41 F.R.D. 419, 426 (D. Ind. 1967).
- entering into stipulations regarding undisputed facts; ABA Standards for Criminal Justice, Discovery and Procedure Before Trial, 5.4(a).
- marking documents and other exhibits; ABA Standards for Criminal Justice,
Discovery and Procedure Before Trial, 5.4(a).
- exercising from otherwise admissible statement material which is inadmissible or prejudicial; ABA Standards for Criminal Justice, Discovery and Procedure Before Trial, 5.4(a).
- severance of defendants or offenses; ABA Standards for Criminal Justice,
Discovery and Procedure Before Trial, 5.4(a).
- conduct of voir dire; ABA Standards for Criminal Justice, Discovery and Procedure Before Trial, 5.4(a).
- determining the number of peremptory challenges; ABA Standards for Criminal Justice, Discovery and Procedure Before Trial, 5.4(a).
- possibility of making Jencks Act statements available prior to trial in order to avoid unnecessary waste of time; Recommended Procedures in Criminal Pretrial, 37
F.R.D. 95, 102-103 (1965); Ogden v. US, 303 F.2d 724, 734 (9th Cir. 1962).
Many of these otherwise innocuous housekeeping chores, such as the marking of documents and exhibits, have an obvious value as discovery devices.
This conference also affords defense counsel the opportunity to seek reconsideration of discovery matters which may have been previously denied. For instance, the disclosure of the identity of Government’ witnesses at a pre-trial conference on the eve of trial may not pose any threat of intimidation which may have reasonably been feared when the original request was denied long before the trial.
The pre-trial conference may also afford defense counsel an additional opportunity to obtain Government witness’ statements on the eve of trial. The Jencks Act does not prohibit such pre-trial disclosure and counsel would do well to remind the court at the pre-trial conference that such disclosure would expedite the trial and obviate any need for lengthy trial delays after the witness has testified on direct. Ogden v. US, 385 F.2d 132 (9th Cir. 1962).
The Government is expressly prohibited from using any ad-missions which are made by a defendant or his attorney at such conference unless reduced to writing and signed by the defendant and his attorney.
Furthermore, any agreements reached by the parties at this conference must be voluntary and the court is without the power to coerce parties to resolve issue on which there is a dispute. US v. Westmoreland, 41 F.R.D. 419, 426 (D. Ind. 1967); WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL § 292 at 574-75.
Defense counsel might also utilize the pre-trial conference as an opportunity to exchange witness lists with the prosecution. By offering to disclose the identity of defense witnesses in exchange for that of Government witnesses at the conference, Government counsel will often feel compelled to reciprocate in order not to appear unreasonably uncooperative in the presence of the Court. Rezneck, The New Federal Rules of Criminal Procedure, 54 GEO. L. J. 1276, 1287 (1996).
The pre-trial conference also serves as an opportunity to request that all exhibits and evidence which the Government intends to introduce at trial be marked, and to request stipulations of fact or expected testimony, since the prosecutor is often more amendable to such requests in the presence of the court where same are reasonable and would help expedite the trial.
It is recommended that the defendant be present at the pre-trial conference. Judicial Conference Recommended Procedures, 37 F.R.D. at 98-99 (1965), ABA Standards, Discovery and Procedure Before Trial, at 130 (1969). This not only protects defense counsel but also serves the salutary purpose of allowing the defendant to keep informed and participate in the proceedings against him.
