Opinion
Criminal 04-081(PG).
September 16, 2005
RESPONSE TO GOVERNMENT'S RECIPROCAL REQUEST AND FURTHER DISCOVERY REQUESTS TO THE GOVERNMENT
TO THE HONORABLE COURT: COMES NOW defendant Eddie S. Rodriguez Berrios represented by the undersigned attorney and respectfully states and prays:
1. The defendant's evidence is based, at least in part, on the direction that the government's case takes. Therefore, the defendant cannot fully comply with the government's discovery request until the government determines and notifies the evidence to be used at trial.
2. Documents and objects:
The defense notes that it has a number of photographs that have been taken which are available for review at any reasonable time that the government wishes. There are no other documents or objects that the defense has identified as evidence that will be introduced at trial.
3. Reports of examinations and tests:
No examinations or tests have been performed by the defense. However, if the government intends to use hair, DNA or other scientific evidence during the trial of this case, the defense intends to conduct tests on the material.
The defense requests that the Court direct the government to disclose the scientific evidence it intends to use during the trial and to make representative samples of any materials that it has tested or intends to test available for analysis by a defense expert. FRCrP 16.
DNA and certain other scientific testing cannot be performed quickly, therefore, if the government intends to rely on scientific evidence, the defense needs to know this and have the samples available with sufficient time to conduct its own testing prior to trial.
4. Expert witness:
Please see three (3) above.
5. Alibi:
Since the government has provided to the defense, in its motion dated September 8, 2005, the request for alibi defense, including the time and date of the alleged crime, the defense cannot within the time period requested by the government, provide an alibi notice. However, with this information the defense will immediately begin work on this. Counsel requests that this Court set a reasonable date by which the alibi defense must be provided to the prosecution. Defendant Rodriguez Berrios was interviewed by state and federal agents and provided information of his whereabouts on the date the crime is charged; said information which is in the possession of the government is the foundation for his alibi defense and notice is preliminarily hereby given.
6. Insanity; mental condition:
The defense does not intend to rely on the insanity defense.
7. Public authority:
The defendant dose not intend to use this defense.
8. Witness statements:
The government apparently feels that there is a duty under rule 26.2 to disclose witness statements at this time. There is not, that rule states in pertinent part, "After a witness, other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the government or the defendant and the defendant's attorney, as the case may be, to produce for the examination and use of the moving party, any statement of the witness . . ." (emphasis added)
The prosecution requests production, by the defense, of the statements of ". . . . any witness he intends to use at trial . . ." ". . . within the next ten (10) calendar days . . ." therefore it is requesting now, the statements or witnesses to be presented prospectively at trial. The prosecution is not entitled to that.
If the Court disagrees with the interpretation of the defense relative to this rule, then the defense requests that the Court order the government to produce to the defense, at this time, all statements of witness that the prosecution intends to use at trial.