Committee Action. The proposed amendments to Rule 11, particularly those relating to the plea nego- tiating procedure, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact that the Federal Rules of Criminal Procedure should contend with. The Committee accepts the basic structure and provisions of Rule 11(e). Rule 11(e) as proposed permits each federal court to decide for itself the extent to which it will permit plea negotiations to be carried on within its own jurisdic- tion. No court is compelled to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements if, and to the extent that, the court permits such negotiations and agreements. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreements. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form of plea agreement to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate with the prosecution in a different investigation. The Committee intends by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreement.] The Committee added language in subdivisions (e)(2)
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Committee Action. The proposed amendments to Rule 11, particularly those relating to the plea nego- tiating procedure, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact that the Federal Rules of Criminal Procedure should contend with. The Committee accepts the basic structure and provisions of Rule 11(e). Rule 11(e) as proposed permits each federal court to decide for itself the extent to which it will permit plea negotiations to be carried on within its own jurisdic- tion. No court is compelled to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements if, and to the extent that, the court permits such negotiations and agreements. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreements. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form of plea agreement to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate with the prosecution in a different investigation. The Committee intends by its Rule 11 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreement.] The Committee added language in subdivisions (e)(2)
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Committee Action. The Committee agrees with and approves the basic change in Rule 4. The decision to take a citizen into custody is a very important one with far-reaching consequences. That decision ought to be made by a neutral official (a magistrate) rather than by an interested party (the prosecutor). It has been argued that undesirable consequences will result if this change is adopted—including an increase in the number of fugitives and the introduction of sub- stantial delays in our system of criminal justice. [See testimony of Assistant Attorney General X. Xxxxxxx Xxxxxxxxx in Hearings on Proposed Amendments to Federal Rules of Criminal Procedure Before the Sub- committee on Criminal Justice of the House Commit- tee on the Judiciary, 93d Cong., 2d Sess., Serial No. 61, at 41–43 (1974) [hereinafter cited as ‘‘Hearing I’’].] The Committee has carefully considered these arguments and finds them to be wanting. [The Advisory Commit- tee on Criminal Rules has thoroughly analyzed the ar- guments raised by Xx. Xxxxxxxxx and convincingly demonstrated that the undesirable consequences pre- dicted will not necessarily result. See Hearings on Pro- posed Amendments to Federal Rules on Proposed Amendments to Federal Rules of Criminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Congress, 1st Session, Serial No. 6, at 208–09 (1975) [hereinafter cited ‘‘Hearings II’’].] The present rule permits the use of a summons in lieu of a warrant. The major difference be- tween the present rule and the proposed rule is that the present rule vests the decision to issue a summons or a warrant in the prosecutor, while the proposed rule vests that decision in a judicial officer. Thus, the basic premise underlying the arguments against the proposed rule is the notion that only the prosecutor can be trust- ed to act responsibly in deciding whether a summons or a warrant shall issue. The Committee rejects the notion that the federal ju- diciary cannot be trusted to exercise discretion wisely and in the public interest. The Committee recast the language of Rule 4(b). No change in substance is intended. The phrase ‘‘valid rea- son’’ was changed to ‘‘good cause,’’ a phrase with which lawyers are more familiar. [Rule 4, both as proposed by the Supreme Court and as changed by the Committee, Rule 4 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE does not in any way authorize a magistrate to issue a summons or a warrant sua sponte, nor does it enlarge, limit or change in any way the law governing warrant- less arrests.] The Committee deleted two sentences from Rule 4(c). These sentences permitted a magistrate to question the complainant and other witnesses under oath and re- quired the magistrate to keep a record or summary of such a proceeding. The Committee does not intend this change to discontinue or discourage the practice of having the complainant appear personally or the prac- xxxx of making a record or summary of such an appear- ance. Rather, the Committee intended to leave Rule 4(c) neutral on this matter, neither encouraging nor discouraging these practices. The Committee added a new section that provides that the determination of good cause for the issuance of a warrant in lieu of a summons shall not be grounds for a motion to suppress evidence. This provision does not apply when the issue is whether there was probable cause to believe an offense has been committed. This provision does not in any way expand or limit the so- called ‘‘exclusionary rule.’’ NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 94–414; 1975 AMENDMENT Rule 4(e)(3) deals with the manner in which warrants and summonses may be served. The House version pro- vides two methods for serving a summons: (1) personal service upon the defendant, or (2) service by leaving it with someone of suitable age at the defendant’s dwell- ing and by mailing it to the defendant’s last known ad- dress. The Senate version provides three methods: (1) personal service, (2) service by leaving it with someone of suitable age at the defendant’s dwelling, or (3) serv- ice by mailing it to defendant’s last known address. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES—1993 AMENDMENT The Rule is amended to conform to the Judicial Im- provements Act of 1990 [P.L. 101–650, Title III, Section 321] which provides that each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 4 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic, except as noted below. The first non-stylistic change is in Rule 4(a), which has been amended to provide an element of discretion in those situations when the defendant fails to respond to a summons. Under the current rule, the judge must in all cases issue an arrest warrant. The revised rule provides discretion to the judge to issue an arrest war- rant if the attorney for the government does not re- quest that an arrest warrant be issued for a failure to appear. Current Rule 4(b), which refers to the fact that hear- say evidence may be used to support probable cause, has been deleted. That language was added to the rule in 1974, apparently to reflect emerging federal case law. See Advisory Committee Note to 1974 Amendments to Rule 114 (citing cases). A similar amendment was made to Rule 41 in 1972. In the intervening years, particularly those relating however, the case law has become perfectly clear on that propo- sition. Thus, the Committee believed that the reference to hearsay was no longer necessary. Furthermore, the plea nego- tiating procedure, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely limited reference to hearsay evidence was misleading to the extent that it does on negotiated dispositions might have suggested that other forms of casesinadmissible evidence could not be considered. HoweverFor example, crowded court dockets make plea negotiating the rule made no reference to considering a fact defendant’s prior criminal record, which clearly may be considered in deciding whether probable cause ex- ists. See, e.g., Xxxxxxxx v. United States, 338 U.S. 160 (1949) (officer’s knowledge of defendant’s prior criminal activ- ity). Rather than address that issue, or any other simi- lar issues, the Committee believed that the matter was best addressed in Rule 1101(d)(3), Federal Rules of Evi- dence. That rule explicitly provides that the Federal Rules of Criminal Procedure should contend withEvidence do not apply to ‘‘preliminary exami- nations in criminal cases, . . . issuance of warrants for arrest, criminal summonses, and search warrants.’’ The Advisory Committee Note accompanying that rule rec- ognizes that: ‘‘The nature of the proceedings makes ap- plication of the formal rules of evidence inappropriate and impracticable.’’ The Committee did not intend to make any substantive changes in practice by deleting the reference to hearsay evidence. New Rule 4(b), which is currently Rule 4(c), addresses the form of an arrest warrant and a summons and in- cludes two non-stylistic changes. First, Rule 4(b)(1)(C) mandates that the warrant require that the defendant be brought ‘‘without unnecessary delay’’ before a judge. The Committee accepts believed that this was a more appro- priate standard than the basic structure current requirement that the defendant be brought before the ‘‘nearest available’’ magistrate judge. This new language accurately re- flects the thrust of the original rule, that time is of the essence and provisions of that the defendant should be brought with dispatch before a judicial officer in the district. Sec- ond, the revised rule states a preference that the de- fendant be brought before a federal judicial officer. Rule 11(e4(b)(2) has been amended to require that if a xxxxxxx is issued, the defendant must appear before a magistrate judge. The current rule requires the appear- ance before a ‘‘magistrate,’’ which could include a state or local judicial officer. This change is consistent with the preference for requiring defendants to appear before federal judicial officers stated in revised Rule 4(b)(1). Rule 11(e4(c) as proposed (currently Rule 4(d)) includes three changes. First, current Rule 4(d)(2) states the traditional rule recognizing the territorial limits for executing war- rants. Rule 4(c)(2) includes new language that reflects the recent enactment of the Military Extraterritorial Jurisdiction Act (Pub. L. No. 106–523, 114 Stat. 2488) that permits each federal court arrests of certain military and Depart- ment of Defense personnel overseas. See also 14 U.S.C. § 89 (Coast Guard authority to decide for itself effect arrests outside ter- ritorial limits of United States). Second, current Rule 4(d)(3) provides that the extent arresting officer is only re- quired to which it will permit plea negotiations inform the defendant of the offense charged and that a warrant exists if the officer does not have a copy of the warrant. As revised, Rule 4(c)(3)(A) explic- itly requires the arresting officer in all instances to be carried on within its own jurisdic- tionin- form the defendant of the offense charged and of the fact that an arrest warrant exists. No court is compelled The new rule con- tinues the current provision that the arresting officer need not have a copy of the warrant, but if the defend- ant requests to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements ifsee it, and the officer must show the war- rant to the extent that, the court permits such negotiations and agreements. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreementsdefendant as soon as possible. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit attempt to define any form of plea agreement particular time limits for showing the warrant to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offensesdefendant. Third, Rule 4(c)(3)(C) is taken from former Rule 9(c)(1). That provision specifies the defend- ant can plead guilty or nolo contendere manner of serving a summons on an organization. The Committee believed that Rule 4 was the more appropriate location for gen- eral provisions addressing the mechanics of arrest war- rants and summonses. Revised Rule 9 liberally cross- references the basic provisions appearing in return for Rule 4. Under the prosecutor’s recommending amended rule, in all cases in which a sentencesum- mons is being served on an organization, a copy of the summons must be mailed to the organization. Fourth, a change is made in Rule 4(c)(4). Currently, Rule 4(d)(4) requires that an unexecuted warrant must be returned to the judicial officer or judge who issued it. As amended, Rule 4(c)(4)(A) provides that after a warrant is executed, the officer must return it to the judge before whom the defendant and prosecutor can agree will appear under Rule 5. At the government’s request, however, an un- executed warrant must be canceled by a magistrate judge. The change recognizes the possibility that a particular sentence at the time the warrant is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For examplereturned, the plea agreement issuing judicial offi- cer may bind the defendant to cooperate with the prosecution in a different investigationnot be available. The Committee intends by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreement.] The Committee added language in subdivisions (e)(2)AMENDMENT BY PUBLIC LAW
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Committee Action. The Committee narrowed the definition of ‘‘unavailability’’ in subdivision (g). The Committee deleted language from that subdivision that provided that a witness was ‘‘unavailable’’ if the court exempts him from testifying at the trial on the ground of privilege. The Committee does not want to encour- age the use of depositions at trial, especially in view of the importance of having live testimony from a witness on the witness stand. The Committee added a provision to subdivision (b) to parallel the provision of Rule 43(b)(2). This is to make it clear that a disruptive defendant may be re- moved from the place where a deposition is being taken. The Committee added language to subdivision (c) to make clear that the government must pay for the cost of the transcript of a deposition when the deposition is taken at the instance of an indigent defendant or of the government. In order to use a deposition at trial, it must be transcribed. The proposed amendments to Rule 11rule did not explic- itly provide for payment of the cost of transcribing, particularly those relating and the Committee change rectifies this. The Committee notes that subdivision (e) permits the use of a deposition when the witness ‘‘gives testimony at the trial or hearing inconsistent with his deposi- tion.’’ Since subdivision (e) refers to the plea nego- tiating procedurerules of evi- dence, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact Committee understands that the Federal Rules of Criminal Procedure should contend withEvidence will govern the admissibility and use of the deposition. The Committee, by adopting subdivi- sion (e) as proposed to be amended by the Supreme Court, intends the Federal Rules of Evidence to govern the admissibility and use of the deposition. The Committee accepts believes that Rule 15 will not encour- age trials by deposition. A deposition may be taken only in ‘‘exceptional circumstances’’ when ‘‘it is in the basic structure interest of justice that the testimony of a prospective witness of a party be taken and provisions preserved. * * *’’ A dep- osition, once it is taken, is not automatically admissi- ble at trial, however. It may only be used at trial if the witness is unavailable, and the rule narrowly defines unavailability. The procedure established in Rule 15 is similar to the procedure established by the Organized Crime Control Act of 1970 for the taking and use of depositions in organized crime cases. See 18 U.S.C. 3503. CONFERENCE COMMITTEE NOTES, HOUSE REPORT NO. 94–414; 1975 AMENDMENT Rule 15 deals with the taking of depositions and the use of depositions at trial. Rule 15(e) permits a deposi- tion to be used if the witness is unavailable. Rule 15(g) defines that term. The Supreme Court’s proposal defines five circum- stances in which the witness will be considered unavail- able. The House version of the bill deletes a provision that said a witness is unavailable if he is exempted at trial, on the ground of privilege, from testifying about the subject matter of his deposition. The Senate ver- sion of the bill by cross reference to the Federal Rules of Evidence, restores the Supreme Court proposal. The Conference adopts the Senate provision. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 11(e)15 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. Rule 11(e) as proposed permits each federal court to decide for itself the extent to which it will permit plea negotiations These changes are intended to be carried on within its own jurisdic- tionstylistic only, except as noted below. No court is compelled to permit any plea negotia- tions at all. Proposed In Rule 11(e) regulates plea negotia- tions and agreements if, and to the extent that15(a), the court permits such negotiations and agreements. [Pro- posed Rule 11(e) list of materials to be produced has been criticized amended to include the expansive term ‘‘data’’ to reflect the fact that in an increasingly technological culture, the information may exist in a format not al- ready covered by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreementsmore conventional list, such as a book or document. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form last portion of plea agreement to be presented to it. Seecurrent Rule 15(b), e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate dealing with the prosecution in defendant’s presence at a different investigation. The Committee intends by its approval of deposition, has been moved to amended Rule 11(e) to permit the parties to agree on such terms in a plea agreement15(c).] The Committee added language in subdivisions (e)(2)
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Committee Action. The proposed amendments Committee agrees with and approves the basic change in Rule 4. The decision to Rule 11, particularly those relating take a citizen into custody is a very important one with far-reaching consequences. That decision ought to be made by a neutral official (a magistrate) rather than by an interested party (the plea nego- tiating procedure, have generated much comment prosecutor). It has been argued that undesirable consequences will result if this change is adopted—including an increase in the number of fugitives and criticismthe introduction of sub- stantial delays in our system of criminal justice. No observer is entirely happy that our xxxxx- nal justice system must rely [See testimony of Assistant Attorney General X. Xxxxxxx Xxxxxxxxx in Hearings on Proposed Amendments to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact that the Federal Rules of Criminal Procedure should contend withBefore the Sub- committee on Criminal Justice of the House Commit- tee on the Judiciary, 93d Cong., 2d Sess., Serial No. The Committee accepts the basic structure and provisions of Rule 11(e). Rule 11(e) as proposed permits each federal court to decide for itself the extent to which it will permit plea negotiations to be carried on within its own jurisdic- tion. No court is compelled to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements if, and to the extent that, the court permits such negotiations and agreements. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreements. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form of plea agreement to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II61, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e41–43 (1974) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate with the prosecution in a different investigation. The Committee intends by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreementhereinafter cited as ‘‘Hearing I’’].] The Committee has carefully considered these arguments and finds them to be wanting. [The Advisory Commit- tee on Criminal Rules has thoroughly analyzed the ar- guments raised by Xx. Xxxxxxxxx and convincingly demonstrated that the undesirable consequences pre- dicted will not necessarily result. See Hearings on Pro- posed Amendments to Federal Rules on Proposed Amendments to Federal Rules of Criminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Congress, 1st Session, Serial No. 6, at 208–09 (1975) [hereinafter cited ‘‘Hearings II’’].] The present rule permits the use of a summons in lieu of a warrant. The major difference be- tween the present rule and the proposed rule is that the present rule vests the decision to issue a summons or a warrant in the prosecutor, while the proposed rule vests that decision in a judicial officer. Thus, the basic premise underlying the arguments against the proposed rule is the notion that only the prosecutor can be trust- ed to act responsibly in deciding whether a summons or a warrant shall issue. The Committee rejects the notion that the federal ju- diciary cannot be trusted to exercise discretion wisely and in the public interest. The Committee recast the language of Rule 4(b). No change in substance is intended. The phrase ‘‘valid rea- son’’ was changed to ‘‘good cause,’’ a phrase with which lawyers are more familiar. [Rule 4, both as proposed by the Supreme Court and as changed by the Committee, does not in any way authorize a magistrate to issue a summons or a warrant sua sponte, nor does it enlarge, limit or change in any way the law governing warrant- less arrests.] The Committee deleted two sentences from Rule 4(c). These sentences permitted a magistrate to question the complainant and other witnesses under oath and re- quired the magistrate to keep a record or summary of such a proceeding. The Committee does not intend this change to discontinue or discourage the practice of having the complainant appear personally or the prac- xxxx of making a record or summary of such an appear- ance. Rather, the Committee intended to leave Rule 4(c) neutral on this matter, neither encouraging nor discouraging these practices. The Committee added language a new section that provides that the determination of good cause for the issuance Rule 5 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE of a warrant in subdivisions lieu of a summons shall not be grounds for a motion to suppress evidence. This provision does not apply when the issue is whether there was probable cause to believe an offense has been committed. This provision does not in any way expand or limit the so- called ‘‘exclusionary rule.’’ Notes of Conference Committee, House Report No. 94–414; 1975 AMENDMENT Rule 4(e)(3) deals with the manner in which warrants and summonses may be served. The House version pro- vides two methods for serving a summons: (e)(2)1) personal service upon the defendant, or (2) service by leaving it with someone of suitable age at the defendant’s dwell- ing and by mailing it to the defendant’s last known ad- dress. The Senate version provides three methods: (1) personal service, (2) service by leaving it with someone of suitable age at the defendant’s dwelling, or (3) serv- ice by mailing it to defendant’s last known address. Notes of Advisory Committee on Rules—1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules—1993 Amendment The Rule is amended to conform to the Judicial Im- provements Act of 1990 [P.L. 101–650, Title III, Section 321] which provides that each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge. 1975 Amendment
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Committee Action. The Committee agrees with and approves the basic change in Rule 4. The decision to take a citizen into custody is a very important one with far-reaching consequences. That decision ought to be made by a neutral official (a magistrate) rather than by an interested party (the prosecutor). It has been argued that undesirable consequences will result if this change is adopted—including an increase in the number of fugitives and the introduction of sub- stantial delays in our system of criminal justice. [See testimony of Assistant Attorney General X. Xxxxxxx Xxxxxxxxx in Hearings on Proposed Amendments to Federal Rules of Criminal Procedure Before the Sub- committee on Criminal Justice of the House Commit- tee on the Judiciary, 93d Cong., 2d Sess., Serial No. 61, at 41–43 (1974) [hereinafter cited as ‘‘Hearing I’’].] The Committee has carefully considered these arguments and finds them to be wanting. [The Advisory Commit- tee on Criminal Rules has thoroughly analyzed the ar- guments raised by Xx. Xxxxxxxxx and convincingly demonstrated that the undesirable consequences pre- dicted will not necessarily result. See Hearings on Pro- posed Amendments to Federal Rules on Proposed Amendments to Federal Rules of Criminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Congress, 1st Session, Serial No. 6, at 208–09 (1975) [hereinafter cited ‘‘Hearings II’’].] The present rule permits the use of a summons in lieu of a warrant. The major difference be- tween the present rule and the proposed rule is that the present rule vests the decision to issue a summons or a warrant in the prosecutor, while the proposed rule vests that decision in a judicial officer. Thus, the basic premise underlying the arguments against the proposed rule is the notion that only the prosecutor can be trust- ed to act responsibly in deciding whether a summons or a warrant shall issue. The Committee rejects the notion that the federal ju- diciary cannot be trusted to exercise discretion wisely and in the public interest. The Committee recast the language of Rule 4(b). No change in substance is intended. The phrase ‘‘valid rea- son’’ was changed to ‘‘good cause,’’ a phrase with which lawyers are more familiar. [Rule 4, both as proposed by the Supreme Court and as changed by the Committee, does not in any way authorize a magistrate to issue a summons or a warrant sua sponte, nor does it enlarge, limit or change in any way the law governing warrant- less arrests.] The Committee deleted two sentences from Rule 4(c). These sentences permitted a magistrate to question the complainant and other witnesses under oath and re- quired the magistrate to keep a record or summary of such a proceeding. The Committee does not intend this change to discontinue or discourage the practice of having the complainant appear personally or the prac- xxxx of making a record or summary of such an appear- ance. Rather, the Committee intended to leave Rule 4(c) neutral on this matter, neither encouraging nor discouraging these practices. The Committee added a new section that provides that the determination of good cause for the issuance of a warrant in lieu of a summons shall not be grounds for a motion to suppress evidence. This provision does not apply when the issue is whether there was probable cause to believe an offense has been committed. This provision does not in any way expand or limit the so- called ‘‘exclusionary rule.’’ NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 94–414; 1975 AMENDMENT Rule 4(e)(3) deals with the manner in which warrants and summonses may be served. The House version pro- vides two methods for serving a summons: (1) personal service upon the defendant, or (2) service by leaving it with someone of suitable age at the defendant’s dwell- ing and by mailing it to the defendant’s last known ad- dress. The Senate version provides three methods: (1) personal service, (2) service by leaving it with someone of suitable age at the defendant’s dwelling, or (3) serv- ice by mailing it to defendant’s last known address. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES—1993 AMENDMENT The Rule is amended to conform to the Judicial Im- provements Act of 1990 [P.L. 101–650, Title III, Section 321] which provides that each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 4 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic, except as noted below. The first non-stylistic change is in Rule 4(a), which has been amended to provide an element of discretion in those situations when the defendant fails to respond to a summons. Under the current rule, the judge must in all cases issue an arrest warrant. The revised rule provides discretion to the judge to issue an arrest war- rant if the attorney for the government does not re- quest that an arrest warrant be issued for a failure to appear. Current Rule 4(b), which refers to the fact that hear- say evidence may be used to support probable cause, has been deleted. That language was added to the rule in 1974, apparently to reflect emerging federal case law. See Advisory Committee Note to 1974 Amendments to Rule 114 (citing cases). A similar amendment was made to Rule 41 in 1972. In the intervening years, particularly those relating however, the case law has become perfectly clear on that propo- sition. Thus, the Committee believed that the reference to hearsay was no longer necessary. Furthermore, the plea nego- tiating procedure, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely limited reference to hearsay evidence was misleading to the extent that it does on negotiated dispositions might have suggested that other forms of casesinadmissible evidence could not be considered. HoweverFor example, crowded court dockets make plea negotiating the rule made no reference to considering a fact defendant’s prior criminal record, which clearly may be considered in deciding whether probable cause ex- ists. See, e.g., Xxxxxxxx v. United States, 338 U.S. 160 (1949) (officer’s knowledge of defendant’s prior criminal activ- ity). Rather than address that issue, or any other simi- lar issues, the Committee believed that the matter was best addressed in Rule 1101(d)(3), Federal Rules of Evi- dence. That rule explicitly provides that the Federal Rules of Criminal Procedure should contend withEvidence do not apply to ‘‘preliminary exami- nations in criminal cases, . . . issuance of warrants for arrest, criminal summonses, and search warrants.’’ The Advisory Committee Note accompanying that rule rec- ognizes that: ‘‘The nature of the proceedings makes ap- plication of the formal rules of evidence inappropriate and impracticable.’’ The Committee did not intend to make any substantive changes in practice by deleting the reference to hearsay evidence. New Rule 4(b), which is currently Rule 4(c), addresses the form of an arrest warrant and a summons and in- Page 21 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 4.1 cludes two non-stylistic changes. First, Rule 4(b)(1)(C) mandates that the warrant require that the defendant be brought ‘‘without unnecessary delay’’ before a judge. The Committee accepts believed that this was a more appro- priate standard than the basic structure current requirement that the defendant be brought before the ‘‘nearest available’’ magistrate judge. This new language accurately re- flects the thrust of the original rule, that time is of the essence and provisions of that the defendant should be brought with dispatch before a judicial officer in the district. Sec- ond, the revised rule states a preference that the de- fendant be brought before a federal judicial officer. Rule 11(e4(b)(2) has been amended to require that if a xxxxxxx is issued, the defendant must appear before a magistrate judge. The current rule requires the appear- ance before a ‘‘magistrate,’’ which could include a state or local judicial officer. This change is consistent with the preference for requiring defendants to appear before federal judicial officers stated in revised Rule 4(b)(1). Rule 11(e4(c) as proposed (currently Rule 4(d)) includes three changes. First, current Rule 4(d)(2) states the traditional rule recognizing the territorial limits for executing war- rants. Rule 4(c)(2) includes new language that reflects the recent enactment of the Military Extraterritorial Jurisdiction Act (Pub. L. No. 106–523, 114 Stat. 2488) that permits each federal court arrests of certain military and Depart- ment of Defense personnel overseas. See also 14 U.S.C. § 89 (Coast Guard authority to decide for itself effect arrests outside ter- ritorial limits of United States). Second, current Rule 4(d)(3) provides that the extent arresting officer is only re- quired to which it will permit plea negotiations inform the defendant of the offense charged and that a warrant exists if the officer does not have a copy of the warrant. As revised, Rule 4(c)(3)(A) explic- itly requires the arresting officer in all instances to be carried on within its own jurisdic- tionin- form the defendant of the offense charged and of the fact that an arrest warrant exists. No court is compelled The new rule con- tinues the current provision that the arresting officer need not have a copy of the warrant, but if the defend- ant requests to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements ifsee it, and the officer must show the war- rant to the extent that, the court permits such negotiations and agreements. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreementsdefendant as soon as possible. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit attempt to define any form of plea agreement particular time limits for showing the warrant to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offensesdefendant. Third, Rule 4(c)(3)(C) is taken from former Rule 9(c)(1). That provision specifies the defend- ant can plead guilty or nolo contendere manner of serving a summons on an organization. The Committee believed that Rule 4 was the more appropriate location for gen- eral provisions addressing the mechanics of arrest war- rants and summonses. Revised Rule 9 liberally cross- references the basic provisions appearing in return for Rule 4. Under the prosecutor’s recommending amended rule, in all cases in which a sentencesum- mons is being served on an organization, a copy of the summons must be mailed to the organization. Fourth, a change is made in Rule 4(c)(4). Currently, Rule 4(d)(4) requires that an unexecuted warrant must be returned to the judicial officer or judge who issued it. As amended, Rule 4(c)(4)(A) provides that after a warrant is executed, the officer must return it to the judge before whom the defendant and prosecutor can agree will appear under Rule 5. At the government’s request, however, an un- executed warrant must be canceled by a magistrate judge. The change recognizes the possibility that a particular sentence at the time the warrant is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For examplereturned, the plea agreement issuing judicial offi- cer may bind not be available. COMMITTEE NOTES ON RULES—2011 AMENDMENT Rule 4 is amended in three respects to make the defendant to cooperate with ar- rest warrant process more efficient through the prosecution in a different investigation. The Committee intends by its approval use of Rule 11(e) to permit the parties to agree on such terms in a plea agreementtechnology.] The Committee added language in subdivisions (e)(2)
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Committee Action. The Committee narrowed the definition of ‘‘unavailability’’ in subdivision (g). The Committee deleted language from that subdivision that provided that a witness was ‘‘unavailable’’ if the court exempts him from testifying at the trial on the ground of privilege. The Committee does not want to encour- age the use of depositions at trial, especially in view of the importance of having live testimony from a witness on the witness stand. The Committee added a provision to subdivision (b) to parallel the provision of Rule 43(b)(2). This is to make it clear that a disruptive defendant may be re- moved from the place where a deposition is being taken. The Committee added language to subdivision (c) to make clear that the government must pay for the cost of the transcript of a deposition when the deposition is taken at the instance of an indigent defendant or of the government. In order to use a deposition at trial, it must be transcribed. The proposed amendments to Rule 11rule did not explic- itly provide for payment of the cost of transcribing, particularly those relating and the Committee change rectifies this. The Committee notes that subdivision (e) permits the use of a deposition when the witness ‘‘gives testimony at the trial or hearing inconsistent with his deposi- tion.’’ Since subdivision (e) refers to the plea nego- tiating procedurerules of evi- dence, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact Committee understands that the Federal Rules of Criminal Procedure should contend withEvidence will govern the admissibility and use of the deposition. The Committee, by adopting subdivi- sion (e) as proposed to be amended by the Supreme Court, intends the Federal Rules of Evidence to govern the admissibility and use of the deposition. The Committee accepts believes that Rule 15 will not encour- age trials by deposition. A deposition may be taken only in ‘‘exceptional circumstances’’ when ‘‘it is in the basic structure interest of justice that the testimony of a prospective witness of a party be taken and provisions preserved. * * *’’ A dep- osition, once it is taken, is not automatically admissi- ble at trial, however. It may only be used at trial if the witness is unavailable, and the rule narrowly defines unavailability. The procedure established in Rule 15 is similar to the procedure established by the Organized Crime Control Act of 1970 for the taking and use of depositions in organized crime cases. See 18 U.S.C. 3503. CONFERENCE COMMITTEE NOTES, HOUSE REPORT NO. 94–414; 1975 AMENDMENT Rule 15 deals with the taking of depositions and the use of depositions at trial. Rule 15(e) permits a deposi- tion to be used if the witness is unavailable. Rule 15(g) defines that term. The Supreme Court’s proposal defines five circum- stances in which the witness will be considered unavail- able. The House version of the bill deletes a provision that said a witness is unavailable if he is exempted at trial, on the ground of privilege, from testifying about the subject matter of his deposition. The Senate ver- sion of the bill by cross reference to the Federal Rules of Evidence, restores the Supreme Court proposal. The Conference adopts the Senate provision. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. Rule 16 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 11(e)15 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. Rule 11(e) as proposed permits each federal court to decide for itself the extent to which it will permit plea negotiations These changes are intended to be carried on within its own jurisdic- tionstylistic only, except as noted below. No court is compelled to permit any plea negotia- tions at all. Proposed In Rule 11(e) regulates plea negotia- tions and agreements if, and to the extent that15(a), the court permits such negotiations and agreements. [Pro- posed Rule 11(e) list of materials to be produced has been criticized amended to include the expansive term ‘‘data’’ to reflect the fact that in an increasingly technological culture, the information may exist in a format not al- ready covered by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreementsmore conventional list, such as a book or document. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form last portion of plea agreement to be presented to it. Seecurrent Rule 15(b), e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate dealing with the prosecution in defendant’s presence at a different investigation. The Committee intends by its approval of deposition, has been moved to amended Rule 11(e) to permit the parties to agree on such terms in a plea agreement15(c).] The Committee added language in subdivisions (e)(2)
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Committee Action. The proposed amendments to Rule 11, particularly those relating to the plea nego- tiating procedure, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact that the Federal Rules of Criminal Procedure should contend with. The Committee accepts the basic structure and provisions of Rule 11(e). Rule 11(e) as proposed permits each federal court to decide for itself the extent to which it will permit plea negotiations to be carried on within its own jurisdic- tion. No court is compelled to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements if, and to the extent that, the court permits such negotiations and agreements. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea Rule 11 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 54 negotiations and the reaching of plea agreements. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form of plea agreement to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate with the prosecution in a different investigation. The Committee intends by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreement.] The Committee added language in subdivisions (e)(2) and (e)(4) to permit a plea agreement to be disclosed to the court, or rejected by it, in camera. There must be a showing of good cause before the court can conduct such proceedings in camera. The language does not ad- dress itself to whether the showing of good cause may be made in open court or in camera. That issue is left for the courts to resolve on a case-by-case basis. These changes in subdivisions (e)(2) and (e)(4) will permit a fair trial when there is substantial media interest in a case and the court is rejecting a plea agreement. The Committee added an exception to subdivision (e)(6). That subdivision provides: Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connec- tion with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. The Committee’s exception permits the use of such evidence in a perjury or false statement prosecution where the plea, offer, or related statement was made by the defendant on the record, under oath and in the presence of counsel. The Committee recognizes that even this limited exception may discourage defendants from being completely candid and open during plea ne- gotiations and may even result in discouraging the reaching of plea agreements. However, the Committee believes hat, on balance, it is more important to pro- tect the integrity of the judicial process from willful deceit and untruthfulness. [The Committee does not in- tend its language to be construed as mandating or en- couraging the swearing-in of the defendant during pro- ceedings in connection with the disclosure and accept- ance or rejection of a plea agreement.] The Committee recast the language of Rule 11(c), which deals with the advice given to a defendant before the court can accept his plea of guilty or nolo con- tendere. The Committee acted in part because it be- lieved that the warnings given to the defendant ought to include those that Boykin v. Alabama, 395 U.S. 238 (1969), said were constitutionally required. In addition, and as a result of its change in subdivision (e)(6), the Committee thought if only fair that the defendant be warned that his plea of guilty (later withdrawn) or nolo contendere, or his offer of either plea, or his statements made in connection with such pleas or offers, could later be used against him in a perjury trial if made under oath, on the record, and in the presence of coun- sel. NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 94–414; 1975 AMENDMENT Note to subdivision (c). Rule 11(c) enumerates certain things that a judge must tell a defendant before the judge can accept that defendant’s plea of guilty or nolo contendere. The House version expands upon the list originally proposed by the Supreme Court. The Senate version adopts the Supreme Court’s proposal. The Conference adopts the House provision. Note to subdivision (e)(1). Rule 11(e)(1) outlines some general considerations concerning the plea agreement procedure. The Senate version makes nonsubstantive change in the House version. The Conference adopts the Senate provision. Note to subdivision (e)(6). Rule 11(e)(6) deals with the use of statements made in connection with plea agree- ments. The House version permits a limited use of pleas of guilty, later withdrawn, or nolo contendere, offers of such pleas, and statements made in connection with such pleas or offers. Such evidence can be used in a per- jury or false statement prosecution if the plea, offer, or related statement was made under oath, on the record, and in the presence of counsel. The Senate version per- mits evidence of voluntary and reliable statements made in court on the record to be used for the purpose of impeaching the credibility of the declarant or in a perjury or false statement prosecution. The Conference adopts the House version with
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Committee Action. The Committee narrowed the definition of ‘‘unavailability’’ in subdivision (g). The Committee deleted language from that subdivision that provided that a witness was ‘‘unavailable’’ if the court exempts him from testifying at the trial on the ground Rule 16 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 66 of privilege. The Committee does not want to encour- age the use of depositions at trial, especially in view of the importance of having live testimony from a witness on the witness stand. The Committee added a provision to subdivision (b) to parallel the provision of Rule 43(b)(2). This is to make it clear that a disruptive defendant may be re- moved from the place where a deposition is being taken. The Committee added language to subdivision (c) to make clear that the government must pay for the cost of the transcript of a deposition when the deposition is taken at the instance of an indigent defendant or of the government. In order to use a deposition at trial, it must be transcribed. The proposed amendments to Rule 11rule did not explic- itly provide for payment of the cost of transcribing, particularly those relating and the Committee change rectifies this. The Committee notes that subdivision (e) permits the use of a deposition when the witness ‘‘gives testimony at the trial or hearing inconsistent with his deposi- tion.’’ Since subdivision (e) refers to the plea nego- tiating procedurerules of evi- dence, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact Committee understands that the Federal Rules of Criminal Procedure should contend withEvidence will govern the admissibility and use of the deposition. The Committee, by adopting subdivi- sion (e) as proposed to be amended by the Supreme Court, intends the Federal Rules of Evidence to govern the admissibility and use of the deposition. The Committee accepts believes that Rule 15 will not encour- age trials by deposition. A deposition may be taken only in ‘‘exceptional circumstances’’ when ‘‘it is in the basic structure interest of justice that the testimony of a prospective witness of a party be taken and provisions preserved. * * *’’ A dep- osition, once it is taken, is not automatically admissi- ble at trial, however. It may only be used at trial if the witness is unavailable, and the rule narrowly defines unavailability. The procedure established in Rule 15 is similar to the procedure established by the Organized Crime Control Act of 1970 for the taking and use of depositions in organized crime cases. See 18 U.S.C. 3503. Conference Committee Notes, House Report No. 94–414; 1975 AMENDMENT Rule 11(e15 deals with the taking of depositions and the use of depositions at trial. Rule 15(e) permits a deposi- tion to be used if the witness is unavailable. Rule 15(g) defines that term. The Supreme Court’s proposal defines five circum- stances in which the witness will be considered unavail- able. The House version of the bill deletes a provision that said a witness is unavailable if he is exempted at trial, on the ground of privilege, from testifying about the subject matter of his deposition. The Senate ver- sion of the bill by cross reference to the Federal Rules of Evidence, restores the Supreme Court proposal. The Conference adopts the Senate provision. Notes of Advisory Committee on Rules—1987 Amendment The amendments are technical. No substantive change is intended. References in Text The Federal Rules of Evidence, referred to in subsec. (e), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. 1984 Amendment Subd. (a). Rule 11(ePub. L. 98–473 substituted ‘‘detained pursu- ant to section 3144 of title 18, United States Code’’ for ‘‘committed for failure to give bail to appear to testify at a trial or hearing’’. 1975 Amendment Pub. L. 94–64 amended subds. (a), (b), (c), and (e) gen- erally, struck out subd. (g), and redesignated subd. (h) as proposed permits each federal court to decide for itself (g). Effective Date of Amendments Proposed April 22, 1974; Effective Date of 1975 Amendments Amendments of this rule embraced in the extent to which it will permit plea negotiations to be carried order of the United States Supreme Court on within its own jurisdic- tion. No court is compelled to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements ifApr. 22, 1974, and the amendments of this rule made by section 3 of Pub. L. 94–64, effective Dec. 1, 1975, see section 2 of Pub. L. 94–64, set out as a note under rule 4 of these rules. Federal Rules of Civil Procedure Deposition of witnesses upon written interrogatories, see rule 31, Title 28, Appendix, Judiciary and Judicial Procedure. Depositions, see rules 26 to the extent that, the court permits such negotiations 32 and agreements37. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreements. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form of plea agreement to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge Interrogatories to a less serious offenseparty, see rule 33. SecondCross References Affidavit upon motion, the de- fendant can plead guilty or nolo contendere in return see rule 47. Assignment of counsel, see rule 44. Demands for the prosecutor droppingproduction of statements and reports of witnesses, or not bringingsee section 3500 of this title. Subpoena and place for taking deposition, a charge or charges relating to other offensessee rule 17. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentenceRule 16. Fourth, the defendant Discovery and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate with the prosecution in a different investigation. The Committee intends by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreement.] The Committee added language in subdivisions (e)(2)Inspection
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Committee Action. The Committee agrees with and approves the basic change in Rule 4. The decision to take a citizen into custody is a very important one with far-reaching consequences. That decision ought to be made by a neutral official (a magistrate) rather than by an interested party (the prosecutor). It has been argued that undesirable consequences will result if this change is adopted—including an increase in the number of fugitives and the introduction of sub- stantial delays in our system of criminal justice. [See testimony of Assistant Attorney General X. Xxxxxxx Xxxxxxxxx in Hearings on Proposed Amendments to Federal Rules of Criminal Procedure Before the Sub- committee on Criminal Justice of the House Commit- tee on the Judiciary, 93d Cong., 2d Sess., Serial No. 61, at 41–43 (1974) [hereinafter cited as ‘‘Hearing I’’].] The Committee has carefully considered these arguments and finds them to be wanting. [The Advisory Commit- tee on Criminal Rules has thoroughly analyzed the ar- guments raised by Xx. Xxxxxxxxx and convincingly demonstrated that the undesirable consequences pre- dicted will not necessarily result. See Hearings on Pro- posed Amendments to Federal Rules on Proposed Amendments to Federal Rules of Criminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Congress, 1st Session, Serial No. 6, at 208–09 (1975) [hereinafter cited ‘‘Hearings II’’].] The present rule permits the use of a summons in lieu of a warrant. The major difference be- tween the present rule and the proposed rule is that the present rule vests the decision to issue a summons or a warrant in the prosecutor, while the proposed rule vests that decision in a judicial officer. Thus, the basic premise underlying the arguments against the proposed rule is the notion that only the prosecutor can be trust- ed to act responsibly in deciding whether a summons or a warrant shall issue. The Committee rejects the notion that the federal ju- diciary cannot be trusted to exercise discretion wisely and in the public interest. The Committee recast the language of Rule 4(b). No change in substance is intended. The phrase ‘‘valid rea- son’’ was changed to ‘‘good cause,’’ a phrase with which lawyers are more familiar. [Rule 4, both as proposed by the Supreme Court and as changed by the Committee, Rule 4 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE does not in any way authorize a magistrate to issue a summons or a warrant sua sponte, nor does it enlarge, limit or change in any way the law governing warrant- less arrests.] The Committee deleted two sentences from Rule 4(c). These sentences permitted a magistrate to question the complainant and other witnesses under oath and re- quired the magistrate to keep a record or summary of such a proceeding. The Committee does not intend this change to discontinue or discourage the practice of having the complainant appear personally or the prac- xxxx of making a record or summary of such an appear- ance. Rather, the Committee intended to leave Rule 4(c) neutral on this matter, neither encouraging nor discouraging these practices. The Committee added a new section that provides that the determination of good cause for the issuance of a warrant in lieu of a summons shall not be grounds for a motion to suppress evidence. This provision does not apply when the issue is whether there was probable cause to believe an offense has been committed. This provision does not in any way expand or limit the so- called ‘‘exclusionary rule.’’ Notes of Conference Committee, House Report No. 94–414; 1975 AMENDMENT Rule 4(e)(3) deals with the manner in which warrants and summonses may be served. The House version pro- vides two methods for serving a summons: (1) personal service upon the defendant, or (2) service by leaving it with someone of suitable age at the defendant’s dwell- ing and by mailing it to the defendant’s last known ad- dress. The Senate version provides three methods: (1) personal service, (2) service by leaving it with someone of suitable age at the defendant’s dwelling, or (3) serv- ice by mailing it to defendant’s last known address. Notes of Advisory Committee on Rules—1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules—1993 Amendment The Rule is amended to conform to the Judicial Im- provements Act of 1990 [P.L. 101–650, Title III, Section 321] which provides that each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge. Committee Notes on Rules—2002 Amendment The language of Rule 4 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic, except as noted below. The first non-stylistic change is in Rule 4(a), which has been amended to provide an element of discretion in those situations when the defendant fails to respond to a summons. Under the current rule, the judge must in all cases issue an arrest warrant. The revised rule provides discretion to the judge to issue an arrest war- rant if the attorney for the government does not re- quest that an arrest warrant be issued for a failure to appear. Current Rule 4(b), which refers to the fact that hear- say evidence may be used to support probable cause, has been deleted. That language was added to the rule in 1974, apparently to reflect emerging federal case law. See Advisory Committee Note to 1974 Amendments to Rule 114 (citing cases). A similar amendment was made to Rule 41 in 1972. In the intervening years, particularly those relating however, the case law has become perfectly clear on that propo- sition. Thus, the Committee believed that the reference to hearsay was no longer necessary. Furthermore, the plea nego- tiating procedure, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely limited reference to hearsay evidence was misleading to the extent that it does on negotiated dispositions might have suggested that other forms of casesinadmissible evidence could not be considered. HoweverFor example, crowded court dockets make plea negotiating the rule made no reference to considering a fact defendant’s prior criminal record, which clearly may be considered in deciding whether probable cause ex- ists. See, e.g., Xxxxxxxx v. United States, 338 U.S. 160 (1949) (officer’s knowledge of defendant’s prior criminal activ- ity). Rather than address that issue, or any other simi- lar issues, the Committee believed that the matter was best addressed in Rule 1101(d)(3), Federal Rules of Evi- dence. That rule explicitly provides that the Federal Rules of Criminal Procedure should contend withEvidence do not apply to ‘‘preliminary exami- nations in criminal cases, . . . issuance of warrants for arrest, criminal summonses, and search warrants.’’ The Advisory Committee Note accompanying that rule rec- ognizes that: ‘‘The nature of the proceedings makes ap- plication of the formal rules of evidence inappropriate and impracticable.’’ The Committee did not intend to make any substantive changes in practice by deleting the reference to hearsay evidence. New Rule 4(b), which is currently Rule 4(c), addresses the form of an arrest warrant and a summons and in- cludes two non-stylistic changes. First, Rule 4(b)(1)(C) mandates that the warrant require that the defendant be brought ‘‘without unnecessary delay’’ before a judge. The Committee accepts believed that this was a more appro- priate standard than the basic structure current requirement that the defendant be brought before the ‘‘nearest available’’ magistrate judge. This new language accurately re- flects the thrust of the original rule, that time is of the essence and provisions of that the defendant should be brought with dispatch before a judicial officer in the district. Sec- ond, the revised rule states a preference that the de- fendant be brought before a federal judicial officer. Rule 11(e4(b)(2) has been amended to require that if a xxxxxxx is issued, the defendant must appear before a magistrate judge. The current rule requires the appear- ance before a ‘‘magistrate,’’ which could include a state or local judicial officer. This change is consistent with the preference for requiring defendants to appear before federal judicial officers stated in revised Rule 4(b)(1). Rule 11(e4(c) as proposed (currently Rule 4(d)) includes three changes. First, current Rule 4(d)(2) states the traditional rule recognizing the territorial limits for executing war- rants. Rule 4(c)(2) includes new language that reflects the recent enactment of the Military Extraterritorial Jurisdiction Act (Pub. L. No. 106–523, 114 Stat. 2488) that permits each federal court arrests of certain military and Depart- ment of Defense personnel overseas. See also 14 U.S.C. § 89 (Coast Guard authority to decide for itself effect arrests outside ter- ritorial limits of United States). Second, current Rule 4(d)(3) provides that the extent arresting officer is only re- quired to which it will permit plea negotiations inform the defendant of the offense charged and that a warrant exists if the officer does not have a copy of the warrant. As revised, Rule 4(c)(3)(A) explic- itly requires the arresting officer in all instances to be carried on within its own jurisdic- tionin- form the defendant of the offense charged and of the fact that an arrest warrant exists. No court is compelled The new rule con- tinues the current provision that the arresting officer need not have a copy of the warrant, but if the defend- ant requests to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements ifsee it, and the officer must show the war- rant to the extent that, the court permits such negotiations and agreements. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreementsdefendant as soon as possible. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit attempt to define any form of plea agreement particular time limits for showing the warrant to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offensesdefendant. Third, Rule 4(c)(3)(C) is taken from former Rule 9(c)(1). That provision specifies the defend- ant can plead guilty or nolo contendere manner of serving a summons on an organization. The Committee believed that Rule 4 was the more appropriate location for gen- eral provisions addressing the mechanics of arrest war- rants and summonses. Revised Rule 9 liberally cross- references the basic provisions appearing in return for Rule 4. Under the prosecutor’s recommending amended rule, in all cases in which a sentencesum- mons is being served on an organization, a copy of the summons must be mailed to the organization. Fourth, a change is made in Rule 4(c)(4). Currently, Rule 4(d)(4) requires that an unexecuted warrant must be returned to the judicial officer or judge who issued it. As amended, Rule 4(c)(4)(A) provides that after a warrant is executed, the officer must return it to the judge before whom the defendant and prosecutor can agree will appear under Rule 5. At the government’s request, however, an un- executed warrant must be canceled by a magistrate judge. The change recognizes the possibility that a particular sentence at the time the warrant is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For examplereturned, the plea agreement issuing judicial offi- cer may bind the defendant to cooperate with the prosecution in a different investigationnot be available. The Committee intends Amendment by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreement.] The Committee added language in subdivisions (e)(2)Public Law
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Committee Action. The Committee agrees with and approves the basic change in Rule 4. The decision to take a citizen into custody is a very important one with far-reaching consequences. That decision ought to be made by a neutral official (a magistrate) rather than by an interested party (the prosecutor). It has been argued that undesirable consequences will result if this change is adopted—including an increase in the number of fugitives and the introduction of sub- stantial delays in our system of criminal justice. [See testimony of Assistant Attorney General X. Xxxxxxx Xxxxxxxxx in Hearings on Proposed Amendments to Federal Rules of Criminal Procedure Before the Sub- committee on Criminal Justice of the House Commit- tee on the Judiciary, 93d Cong., 2d Sess., Serial No. 61, at 41–43 (1974) [hereinafter cited as ‘‘Hearing I’’].] The Committee has carefully considered these arguments and finds them to be wanting. [The Advisory Commit- tee on Criminal Rules has thoroughly analyzed the ar- guments raised by Xx. Xxxxxxxxx and convincingly demonstrated that the undesirable consequences pre- dicted will not necessarily result. See Hearings on Pro- posed Amendments to Federal Rules on Proposed Amendments to Federal Rules of Criminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Congress, 1st Session, Serial No. 6, at 208–09 (1975) [hereinafter cited ‘‘Hearings II’’].] The present rule permits the use of a summons in lieu of a warrant. The major difference be- tween the present rule and the proposed rule is that the present rule vests the decision to issue a summons or a warrant in the prosecutor, while the proposed rule vests that decision in a judicial officer. Thus, the basic premise underlying the arguments against the proposed rule is the notion that only the prosecutor can be trust- ed to act responsibly in deciding whether a summons or a warrant shall issue. The Committee rejects the notion that the federal ju- diciary cannot be trusted to exercise discretion wisely and in the public interest. The Committee recast the language of Rule 4(b). No change in substance is intended. The phrase ‘‘valid rea- son’’ was changed to ‘‘good cause,’’ a phrase with which lawyers are more familiar. [Rule 4, both as proposed by the Supreme Court and as changed by the Committee, does not in any way authorize a magistrate to issue a summons or a warrant sua sponte, nor does it enlarge, limit or change in any way the law governing warrant- less arrests.] The Committee deleted two sentences from Rule 4(c). These sentences permitted a magistrate to question the complainant and other witnesses under oath and re- quired the magistrate to keep a record or summary of such a proceeding. The Committee does not intend this change to discontinue or discourage the practice of having the complainant appear personally or the prac- xxxx of making a record or summary of such an appear- ance. Rather, the Committee intended to leave Rule 4(c) neutral on this matter, neither encouraging nor discouraging these practices. The Committee added a new section that provides that the determination of good cause for the issuance of a warrant in lieu of a summons shall not be grounds for a motion to suppress evidence. This provision does not apply when the issue is whether there was probable cause to believe an offense has been committed. This provision does not in any way expand or limit the so- called ‘‘exclusionary rule.’’ Notes of Conference Committee, House Report No. 94–414; 1975 AMENDMENT Rule 4(e)(3) deals with the manner in which warrants and summonses may be served. The House version pro- vides two methods for serving a summons: (1) personal service upon the defendant, or (2) service by leaving it with someone of suitable age at the defendant’s dwell- ing and by mailing it to the defendant’s last known ad- dress. The Senate version provides three methods: (1) personal service, (2) service by leaving it with someone of suitable age at the defendant’s dwelling, or (3) serv- ice by mailing it to defendant’s last known address. Notes of Advisory Committee on Rules—1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules—1993 Amendment The Rule is amended to conform to the Judicial Im- provements Act of 1990 [P.L. 101–650, Title III, Section 321] which provides that each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge. Committee Notes on Rules—2002 Amendment The language of Rule 4 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic, except as noted below. The first non-stylistic change is in Rule 4(a), which has been amended to provide an element of discretion in those situations when the defendant fails to respond to a summons. Under the current rule, the judge must in all cases issue an arrest warrant. The revised rule provides discretion to the judge to issue an arrest war- rant if the attorney for the government does not re- quest that an arrest warrant be issued for a failure to appear. Current Rule 4(b), which refers to the fact that hear- say evidence may be used to support probable cause, has been deleted. That language was added to the rule in 1974, apparently to reflect emerging federal case law. See Advisory Committee Note to 1974 Amendments to Rule 114 (citing cases). A similar amendment was made to Rule 41 in 1972. In the intervening years, particularly those relating however, the case law has become perfectly clear on that propo- sition. Thus, the Committee believed that the reference to hearsay was no longer necessary. Furthermore, the plea nego- tiating procedure, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely limited reference to hearsay evidence was misleading to the extent that it does on negotiated dispositions might have suggested that other forms of casesinadmissible evidence could not be considered. HoweverFor example, crowded court dockets make plea negotiating the rule made no reference to considering a fact defendant’s prior criminal record, which clearly may be considered in deciding whether probable cause ex- ists. See, e.g., Xxxxxxxx v. United States, 338 U.S. 160 (1949) (officer’s knowledge of defendant’s prior criminal activ- ity). Rather than address that issue, or any other simi- lar issues, the Committee believed that the matter was best addressed in Rule 1101(d)(3), Federal Rules of Evi- dence. That rule explicitly provides that the Federal Rules of Criminal Procedure should contend withEvidence do not apply to ‘‘preliminary exami- nations in criminal cases, . . . issuance of warrants for arrest, criminal summonses, and search warrants.’’ The Advisory Committee Note accompanying that rule rec- ognizes that: ‘‘The nature of the proceedings makes ap- plication of the formal rules of evidence inappropriate and impracticable.’’ The Committee did not intend to make any substantive changes in practice by deleting the reference to hearsay evidence. New Rule 4(b), which is currently Rule 4(c), addresses the form of an arrest warrant and a summons and in- Rule 4.1 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 20 cludes two non-stylistic changes. First, Rule 4(b)(1)(C) mandates that the warrant require that the defendant be brought ‘‘without unnecessary delay’’ before a judge. The Committee accepts believed that this was a more appro- priate standard than the basic structure current requirement that the defendant be brought before the ‘‘nearest available’’ magistrate judge. This new language accurately re- flects the thrust of the original rule, that time is of the essence and provisions of that the defendant should be brought with dispatch before a judicial officer in the district. Sec- ond, the revised rule states a preference that the de- fendant be brought before a federal judicial officer. Rule 11(e4(b)(2) has been amended to require that if a xxxxxxx is issued, the defendant must appear before a magistrate judge. The current rule requires the appear- ance before a ‘‘magistrate,’’ which could include a state or local judicial officer. This change is consistent with the preference for requiring defendants to appear before federal judicial officers stated in revised Rule 4(b)(1). Rule 11(e4(c) as proposed (currently Rule 4(d)) includes three changes. First, current Rule 4(d)(2) states the traditional rule recognizing the territorial limits for executing war- rants. Rule 4(c)(2) includes new language that reflects the recent enactment of the Military Extraterritorial Jurisdiction Act (Pub. L. No. 106–523, 114 Stat. 2488) that permits each federal court arrests of certain military and Depart- ment of Defense personnel overseas. See also 14 U.S.C. § 89 (Coast Guard authority to decide for itself effect arrests outside ter- ritorial limits of United States). Second, current Rule 4(d)(3) provides that the extent arresting officer is only re- quired to which it will permit plea negotiations inform the defendant of the offense charged and that a warrant exists if the officer does not have a copy of the warrant. As revised, Rule 4(c)(3)(A) explic- itly requires the arresting officer in all instances to be carried on within its own jurisdic- tionin- form the defendant of the offense charged and of the fact that an arrest warrant exists. No court is compelled The new rule con- tinues the current provision that the arresting officer need not have a copy of the warrant, but if the defend- ant requests to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements ifsee it, and the officer must show the war- rant to the extent that, the court permits such negotiations and agreements. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreementsdefendant as soon as possible. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit attempt to define any form of plea agreement particular time limits for showing the warrant to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offensesdefendant. Third, Rule 4(c)(3)(C) is taken from former Rule 9(c)(1). That provision specifies the defend- ant can plead guilty or nolo contendere manner of serving a summons on an organization. The Committee believed that Rule 4 was the more appropriate location for gen- eral provisions addressing the mechanics of arrest war- rants and summonses. Revised Rule 9 liberally cross- references the basic provisions appearing in return for Rule 4. Under the prosecutor’s recommending amended rule, in all cases in which a sentencesum- mons is being served on an organization, a copy of the summons must be mailed to the organization. Fourth, a change is made in Rule 4(c)(4). Currently, Rule 4(d)(4) requires that an unexecuted warrant must be returned to the judicial officer or judge who issued it. As amended, Rule 4(c)(4)(A) provides that after a warrant is executed, the officer must return it to the judge before whom the defendant and prosecutor can agree will appear under Rule 5. At the government’s request, however, an un- executed warrant must be canceled by a magistrate judge. The change recognizes the possibility that a particular sentence at the time the warrant is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For examplereturned, the plea agreement issuing judicial offi- cer may bind not be available. Committee Notes on Rules—2011 Amendment Rule 4 is amended in three respects to make the defendant to cooperate with ar- rest warrant process more efficient through the prosecution in a different investigation. The Committee intends by its approval use of Rule 11(e) to permit the parties to agree on such terms in a plea agreementtechnology.] The Committee added language in subdivisions (e)(2)
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Committee Action. The Committee narrowed the definition of ‘‘unavailability’’ in subdivision (g). The Committee deleted language from that subdivision that provided that a witness was ‘‘unavailable’’ if the court exempts him from testifying at the trial on the ground of privilege. The Committee does not want to encour- age the use of depositions at trial, especially in view of the importance of having live testimony from a witness on the witness stand. The Committee added a provision to subdivision (b) to parallel the provision of Rule 43(b)(2). This is to make it clear that a disruptive defendant may be re- moved from the place where a deposition is being taken. The Committee added language to subdivision (c) to make clear that the government must pay for the cost of the transcript of a deposition when the deposition is taken at the instance of an indigent defendant or of the government. In order to use a deposition at trial, it must be transcribed. The proposed amendments to Rule 11rule did not explic- itly provide for payment of the cost of transcribing, particularly those relating and the Committee change rectifies this. The Committee notes that subdivision (e) permits the use of a deposition when the witness ‘‘gives testimony at the trial or hearing inconsistent with his deposi- tion.’’ Since subdivision (e) refers to the plea nego- tiating procedurerules of evi- dence, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact Committee understands that the Federal Rules of Criminal Procedure should contend withEvidence will govern the admissibility and use of the deposition. The Committee, by adopting subdivi- sion (e) as proposed to be amended by the Supreme Court, intends the Federal Rules of Evidence to govern the admissibility and use of the deposition. The Committee accepts believes that Rule 15 will not encour- age trials by deposition. A deposition may be taken only in ‘‘exceptional circumstances’’ when ‘‘it is in the basic structure interest of justice that the testimony of a prospective witness of a party be taken and provisions preserved. * * *’’ A dep- osition, once it is taken, is not automatically admissi- ble at trial, however. It may only be used at trial if the witness is unavailable, and the rule narrowly defines unavailability. The procedure established in Rule 15 is similar to the procedure established by the Organized Crime Control Act of 1970 for the taking and use of depositions in organized crime cases. See 18 U.S.C. 3503. Conference Committee Notes, House Report No. 94–414; 1975 AMENDMENT Rule 15 deals with the taking of depositions and the use of depositions at trial. Rule 15(e) permits a deposi- tion to be used if the witness is unavailable. Rule 15(g) defines that term. The Supreme Court’s proposal defines five circum- stances in which the witness will be considered unavail- able. The House version of the bill deletes a provision that said a witness is unavailable if he is exempted at trial, on the ground of privilege, from testifying about the subject matter of his deposition. The Senate ver- sion of the bill by cross reference to the Federal Rules of Evidence, restores the Supreme Court proposal. The Conference adopts the Senate provision. Notes of Advisory Committee on Rules—1987 Amendment The amendments are technical. No substantive change is intended. Rule 16 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Committee Notes on Rules—2002 Amendment The language of Rule 11(e)15 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. Rule 11(e) as proposed permits each federal court to decide for itself the extent to which it will permit plea negotiations These changes are intended to be carried on within its own jurisdic- tionstylistic only, except as noted below. No court is compelled to permit any plea negotia- tions at all. Proposed In Rule 11(e) regulates plea negotia- tions and agreements if, and to the extent that15(a), the court permits such negotiations and agreements. [Pro- posed Rule 11(e) list of materials to be produced has been criticized amended to include the expansive term ‘‘data’’ to reflect the fact that in an increasingly technological culture, the information may exist in a format not al- ready covered by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreementsmore conventional list, such as a book or document. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form last portion of plea agreement to be presented to it. Seecurrent Rule 15(b), e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate dealing with the prosecution in defendant’s presence at a different investigation. The Committee intends by its approval of deposition, has been moved to amended Rule 11(e) to permit the parties to agree on such terms in a plea agreement15(c).] The Committee added language in subdivisions (e)(2)
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Committee Action. The Committee narrowed the definition of ‘‘unavailability’’ in subdivision (g). The Committee deleted language from that subdivision that provided that a witness was ‘‘unavailable’’ if the court exempts him from testifying at the trial on the ground of privilege. The Committee does not want to encour- age the use of depositions at trial, especially in view of the importance of having live testimony from a witness on the witness stand. The Committee added a provision to subdivision (b) to parallel the provision of Rule 43(b)(2). This is to make it clear that a disruptive defendant may be re- moved from the place where a deposition is being taken. The Committee added language to subdivision (c) to make clear that the government must pay for the cost of the transcript of a deposition when the deposition is taken at the instance of an indigent defendant or of the government. In order to use a deposition at trial, it must be transcribed. The proposed amendments to rule did not explic- itly provide for payment of the cost of transcribing, and the Committee change rectifies this. Rule 1116 TITLE 18, particularly those relating APPENDIX—RULES OF CRIMINAL PROCEDURE The Committee notes that subdivision (e) permits the use of a deposition when the witness ‘‘gives testimony at the trial or hearing inconsistent with his deposi- tion.’’ Since subdivision (e) refers to the plea nego- tiating procedurerules of evi- dence, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact Committee understands that the Federal Rules of Criminal Procedure should contend withEvidence will govern the admissibility and use of the deposition. The Committee, by adopting subdivi- sion (e) as proposed to be amended by the Supreme Court, intends the Federal Rules of Evidence to govern the admissibility and use of the deposition. The Committee accepts believes that Rule 15 will not encour- age trials by deposition. A deposition may be taken only in ‘‘exceptional circumstances’’ when ‘‘it is in the basic structure interest of justice that the testimony of a prospective witness of a party be taken and provisions preserved. * * *’’ A dep- osition, once it is taken, is not automatically admissi- ble at trial, however. It may only be used at trial if the witness is unavailable, and the rule narrowly defines unavailability. The procedure established in Rule 15 is similar to the procedure established by the Organized Crime Control Act of 1970 for the taking and use of depositions in organized crime cases. See 18 U.S.C. 3503. CONFERENCE COMMITTEE NOTES, HOUSE REPORT NO. 94–414; 1975 AMENDMENT Rule 15 deals with the taking of depositions and the use of depositions at trial. Rule 15(e) permits a deposi- tion to be used if the witness is unavailable. Rule 15(g) defines that term. The Supreme Court’s proposal defines five circum- stances in which the witness will be considered unavail- able. The House version of the bill deletes a provision that said a witness is unavailable if he is exempted at trial, on the ground of privilege, from testifying about the subject matter of his deposition. The Senate ver- sion of the bill by cross reference to the Federal Rules of Evidence, restores the Supreme Court proposal. The Conference adopts the Senate provision. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 11(e)15 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. Rule 11(e) as proposed permits each federal court to decide for itself the extent to which it will permit plea negotiations These changes are intended to be carried on within its own jurisdic- tionstylistic only, except as noted below. No court is compelled to permit any plea negotia- tions at all. Proposed In Rule 11(e) regulates plea negotia- tions and agreements if, and to the extent that15(a), the court permits such negotiations and agreements. [Pro- posed Rule 11(e) list of materials to be produced has been criticized amended to include the expansive term ‘‘data’’ to reflect the fact that in an increasingly technological culture, the information may exist in a format not al- ready covered by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreementsmore conventional list, such as a book or document. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form last portion of plea agreement to be presented to it. Seecurrent Rule 15(b), e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate dealing with the prosecution in defendant’s presence at a different investigation. The Committee intends by its approval of deposition, has been moved to amended Rule 11(e) to permit the parties to agree on such terms in a plea agreement15(c).] The Committee added language in subdivisions (e)(2)
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Committee Action. The Committee narrowed the definition of ‘‘unavailability’’ in subdivision (g). The Committee deleted language from that subdivision that provided that a witness was ‘‘unavailable’’ if the court exempts him from testifying at the trial on the ground of privilege. The Committee does not want to encour- age the use of depositions at trial, especially in view of the importance of having live testimony from a witness on the witness stand. The Committee added a provision to subdivision (b) to parallel the provision of Rule 43(b)(2). This is to make it clear that a disruptive defendant may be re- moved from the place where a deposition is being taken. The Committee added language to subdivision (c) to make clear that the government must pay for the cost of the transcript of a deposition when the deposition is taken at the instance of an indigent defendant or of the government. In order to use a deposition at trial, it must be transcribed. The proposed amendments to Rule 11rule did not explic- itly provide for payment of the cost of transcribing, particularly those relating and the Committee change rectifies this. The Committee notes that subdivision (e) permits the use of a deposition when the witness ‘‘gives testimony at the trial or hearing inconsistent with his deposi- tion.’’ Since subdivision (e) refers to the plea nego- tiating procedurerules of evi- dence, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact Committee understands that the Federal Rules of Criminal Procedure should contend withEvidence will govern the admissibility and use of the deposition. The Committee, by adopting subdivi- sion (e) as proposed to be amended by the Supreme Court, intends the Federal Rules of Evidence to govern the admissibility and use of the deposition. The Committee accepts believes that Rule 15 will not encour- age trials by deposition. A deposition may be taken only in ‘‘exceptional circumstances’’ when ‘‘it is in the basic structure interest of justice that the testimony of a prospective witness of a party be taken and provisions preserved. * * *’’ A dep- osition, once it is taken, is not automatically admissi- ble at trial, however. It may only be used at trial if the witness is unavailable, and the rule narrowly defines unavailability. The procedure established in Rule 15 is similar to the procedure established by the Organized Crime Control Act of 1970 for the taking and use of depositions in organized crime cases. See 18 U.S.C. 3503. Conference Committee Notes, House Report No. 94–414; 1975 AMENDMENT Rule 15 deals with the taking of depositions and the use of depositions at trial. Rule 15(e) permits a deposi- tion to be used if the witness is unavailable. Rule 15(g) defines that term. The Supreme Court’s proposal defines five circum- stances in which the witness will be considered unavail- able. The House version of the bill deletes a provision that said a witness is unavailable if he is exempted at trial, on the ground of privilege, from testifying about the subject matter of his deposition. The Senate ver- sion of the bill by cross reference to the Federal Rules of Evidence, restores the Supreme Court proposal. The Conference adopts the Senate provision. Notes of Advisory Committee on Rules—1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules—2002 Amendment The language of Rule 11(e)15 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Rule 11(e) as proposed permits each federal court to decide for itself 16 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE In Rule 15(a), the extent to which it will permit plea negotiations list of materials to be carried on within its own jurisdic- tion. No court is compelled produced has been amended to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements if, and include the expansive term ‘‘data’’ to reflect the extent thatfact that in an increasingly technological culture, the court permits information may exist in a format not al- ready covered by the more conventional list, such negotiations and agreementsas a book or document. [Pro- posed The last portion of current Rule 11(e) 15(b), dealing with the defendant’s presence at a deposition, has been criticized by some federal judges who read it moved to mandate the court to permit plea negotiations and the reaching of plea agreements. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form of plea agreement to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90amended Rule 15(c).] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate with the prosecution in a different investigation. The Committee intends by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreement.] The Committee added language in subdivisions (e)(2)
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Committee Action. The proposed amendments to Rule 11, particularly those relating to the plea nego- tiating procedure, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact that the Federal Rules of Criminal Procedure should contend with. The Committee accepts the basic structure and provisions of Rule 11(e). Rule 11(e) as proposed permits each federal court to decide for itself the extent to which it will permit plea negotiations to be carried on within its own jurisdic- tion. No court is compelled to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements if, and to the extent that, the court permits such negotiations and agreements. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreements. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form of plea agreement to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate with the prosecution in a different investigation. The Committee intends by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreement.] The Committee added language in subdivisions (e)(2)Rule
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Committee Action. The Committee narrowed the definition of ‘‘unavailability’’ in subdivision (g). The Committee deleted language from that subdivision that provided that a witness was ‘‘unavailable’’ if the court exempts him from testifying at the trial on the ground of privilege. The Committee does not want to encour- age the use of depositions at trial, especially in view of the importance of having live testimony from a witness on the witness stand. The Committee added a provision to subdivision (b) to parallel the provision of Rule 43(b)(2). This is to make it clear that a disruptive defendant may be re- moved from the place where a deposition is being taken. The Committee added language to subdivision (c) to make clear that the government must pay for the cost of the transcript of a deposition when the deposition is taken at the instance of an indigent defendant or of the government. In order to use a deposition at trial, it must be transcribed. The proposed amendments to Rule 11rule did not explic- itly provide for payment of the cost of transcribing, particularly those relating and the Committee change rectifies this. The Committee notes that subdivision (e) permits the use of a deposition when the witness ‘‘gives testimony at the trial or hearing inconsistent with his deposi- tion.’’ Since subdivision (e) refers to the plea nego- tiating procedurerules of evi- dence, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact Committee understands that the Federal Rules of Criminal Procedure should contend withEvidence will govern the admissibility and use of the deposition. The Committee, by adopting subdivi- sion (e) as proposed to be amended by the Supreme Court, intends the Federal Rules of Evidence to govern the admissibility and use of the deposition. The Committee accepts believes that Rule 15 will not encour- age trials by deposition. A deposition may be taken only in ‘‘exceptional circumstances’’ when ‘‘it is in the basic structure interest of justice that the testimony of a prospective witness of a party be taken and provisions preserved. * * *’’ A dep- osition, once it is taken, is not automatically admissi- ble at trial, however. It may only be used at trial if the witness is unavailable, and the rule narrowly defines unavailability. The procedure established in Rule 15 is similar to the procedure established by the Organized Crime Control Act of 1970 for the taking and use of depositions in organized crime cases. See 18 U.S.C. 3503. CONFERENCE COMMITTEE NOTES, HOUSE REPORT NO. 94–414; 1975 AMENDMENT Rule 11(e15 deals with the taking of depositions and the use of depositions at trial. Rule 15(e) permits a deposi- tion to be used if the witness is unavailable. Rule 15(g) defines that term. The Supreme Court’s proposal defines five circum- stances in which the witness will be considered unavail- able. The House version of the bill deletes a provision that said a witness is unavailable if he is exempted at trial, on the ground of privilege, from testifying about the subject matter of his deposition. The Senate ver- sion of the bill by cross reference to the Federal Rules of Evidence, restores the Supreme Court proposal. The Conference adopts the Senate provision. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. REFERENCES IN TEXT The Federal Rules of Evidence, referred to in subsec. (e), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. 1984 AMENDMENT Subd. (a). Rule 11(ePub. L. 98–473 substituted ‘‘detained pursu- ant to section 3144 of title 18, United States Code’’ for ‘‘committed for failure to give bail to appear to testify at a trial or hearing’’. 1975 AMENDMENT Pub. L. 94–64 amended subds. (a), (b), (c), and (e) gen- erally, struck out subd. (g), and redesignated subd. (h) as proposed permits each federal court to decide for itself (g). EFFECTIVE DATE OF AMENDMENTS PROPOSED APRIL 22, 1974; EFFECTIVE DATE OF 1975 AMENDMENTS Amendments of this rule embraced in the extent to which it will permit plea negotiations to be carried order of the United States Supreme Court on within its own jurisdic- tion. No court is compelled to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements ifApr. 22, 1974, and the amendments of this rule made by section 3 of Pub. L. 94–64, effective Dec. 1, 1975, see section 2 of Pub. L. 94–64, set out as a note under rule 4 of these rules. FEDERAL RULES OF CIVIL PROCEDURE Deposition of witnesses upon written interrogatories, see rule 31, Title 28, Appendix, Judiciary and Judicial Procedure. Depositions, see rules 26 to the extent that, the court permits such negotiations 32 and agreements37. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreements. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form of plea agreement to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge Interrogatories to a less serious offenseparty, see rule 33. SecondCROSS REFERENCES Affidavit upon motion, the de- fendant can plead guilty or nolo contendere in return see rule 47. Assignment of counsel, see rule 44. Demands for the prosecutor droppingproduction of statements and reports of witnesses, or not bringingsee section 3500 of this title. Subpoena and place for taking deposition, a charge or charges relating to other offensessee rule 17. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentenceRule 16. Fourth, the defendant Discovery and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate with the prosecution in a different investigation. The Committee intends by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreement.] The Committee added language in subdivisions (e)(2)Inspection
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Committee Action. The Committee narrowed the definition of ‘‘unavailability’’ in subdivision (g). The Committee deleted language from that subdivision that provided that a witness was ‘‘unavailable’’ if the court exempts him from testifying at the trial on the ground of privilege. The Committee does not want to encour- age the use of depositions at trial, especially in view of the importance of having live testimony from a witness on the witness stand. The Committee added a provision to subdivision (b) to parallel the provision of Rule 43(b)(2). This is to make it clear that a disruptive defendant may be re- moved from the place where a deposition is being taken. The Committee added language to subdivision (c) to make clear that the government must pay for the cost of the transcript of a deposition when the deposition is taken at the instance of an indigent defendant or of the government. In order to use a deposition at trial, it must be transcribed. The proposed amendments to Rule 11rule did not explic- itly provide for payment of the cost of transcribing, particularly those relating and the Committee change rectifies this. The Committee notes that subdivision (e) permits the use of a deposition when the witness ‘‘gives testimony at the trial or hearing inconsistent with his deposi- tion.’’ Since subdivision (e) refers to the plea nego- tiating procedurerules of evi- dence, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact Committee understands that the Federal Rules of Criminal Procedure should contend withEvidence will govern the admissibility and use of the deposition. The Committee, by adopting subdivi- sion (e) as proposed to be amended by the Supreme Court, intends the Federal Rules of Evidence to govern the admissibility and use of the deposition. The Committee accepts believes that Rule 15 will not encour- age trials by deposition. A deposition may be taken only in ‘‘exceptional circumstances’’ when ‘‘it is in the basic structure interest of justice that the testimony of a prospective witness of a party be taken and provisions preserved. * * *’’ A dep- osition, once it is taken, is not automatically admissi- ble at trial, however. It may only be used at trial if the witness is unavailable, and the rule narrowly defines unavailability. The procedure established in Rule 15 is similar to the procedure established by the Organized Crime Control Act of 1970 for the taking and use of depositions in organized crime cases. See 18 U.S.C. 3503. CONFERENCE COMMITTEE NOTES, HOUSE REPORT NO. 94–414; 1975 AMENDMENT Rule 15 deals with the taking of depositions and the use of depositions at trial. Rule 15(e) permits a deposi- tion to be used if the witness is unavailable. Rule 15(g) defines that term. The Supreme Court’s proposal defines five circum- stances in which the witness will be considered unavail- able. The House version of the bill deletes a provision that said a witness is unavailable if he is exempted at trial, on the ground of privilege, from testifying about the subject matter of his deposition. The Senate ver- sion of the bill by cross reference to the Federal Rules of Evidence, restores the Supreme Court proposal. The Conference adopts the Senate provision. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 11(e)15 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. Rule 11(e) as proposed permits each federal court to decide for itself 16 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE In Rule 15(a), the extent to which it will permit plea negotiations list of materials to be carried on within its own jurisdic- tion. No court is compelled produced has been amended to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements if, and include the expansive term ‘‘data’’ to reflect the extent thatfact that in an increasingly technological culture, the court permits information may exist in a format not al- ready covered by the more conventional list, such negotiations and agreementsas a book or document. [Pro- posed The last portion of current Rule 11(e) 15(b), dealing with the defendant’s presence at a deposition, has been criticized by some federal judges who read it moved to mandate the court to permit plea negotiations and the reaching of plea agreements. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form of plea agreement to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90amended Rule 15(c).] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate with the prosecution in a different investigation. The Committee intends by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreement.] The Committee added language in subdivisions (e)(2)
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Committee Action. The proposed amendments Committee agrees with and approves the basic change in Rule 4. The decision to Rule 11, particularly those relating take a citizen into custody is a very important one with far-reaching consequences. That decision ought to be made by a neutral official (a magistrate) rather than by an interested party (the plea nego- tiating procedure, have generated much comment prosecutor). It has been argued that undesirable consequences will result if this change is adopted—including an increase in the number of fugitives and criticismthe introduction of sub- stantial delays in our system of criminal justice. No observer is entirely happy that our xxxxx- nal justice system must rely [See testimony of Assistant Attorney General X. Xxxxxxx Xxxxxxxxx in Hearings on Proposed Amendments to the extent it does on negotiated dispositions of cases. However, crowded court dockets make plea negotiating a fact that the Federal Rules of Criminal Procedure should contend withBefore the Sub- committee on Criminal Justice of the House Commit- tee on the Judiciary, 93d Cong., 2d Sess., Serial No. The Committee accepts the basic structure and provisions of Rule 11(e). Rule 11(e) as proposed permits each federal court to decide for itself the extent to which it will permit plea negotiations to be carried on within its own jurisdic- tion. No court is compelled to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements if, and to the extent that, the court permits such negotiations and agreements. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreements. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit any form of plea agreement to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II61, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e41–43 (1974) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offenses. Third, the defend- ant can plead guilty or nolo contendere in return for the prosecutor’s recommending a sentence. Fourth, the defendant and prosecutor can agree that a particular sentence is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For example, the plea agreement may bind the defendant to cooperate with the prosecution in a different investigation. The Committee intends by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreementhereinafter cited as ‘‘Hearing I’’].] The Committee has carefully considered these arguments and finds them to be wanting. [The Advisory Commit- tee on Criminal Rules has thoroughly analyzed the ar- guments raised by Xx. Xxxxxxxxx and convincingly demonstrated that the undesirable consequences pre- dicted will not necessarily result. See Hearings on Pro- posed Amendments to Federal Rules on Proposed Amendments to Federal Rules of Criminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Congress, 1st Session, Serial No. 6, at 208–09 (1975) [hereinafter cited ‘‘Hearings II’’].] The present rule permits the use of a summons in lieu of a warrant. The major difference be- tween the present rule and the proposed rule is that the present rule vests the decision to issue a summons or a warrant in the prosecutor, while the proposed rule vests that decision in a judicial officer. Thus, the basic premise underlying the arguments against the proposed rule is the notion that only the prosecutor can be trust- ed to act responsibly in deciding whether a summons or a warrant shall issue. The Committee rejects the notion that the federal ju- diciary cannot be trusted to exercise discretion wisely and in the public interest. The Committee recast the language of Rule 4(b). No change in substance is intended. The phrase ‘‘valid rea- son’’ was changed to ‘‘good cause,’’ a phrase with which lawyers are more familiar. [Rule 4, both as proposed by the Supreme Court and as changed by the Committee, does not in any way authorize a magistrate to issue a summons or a warrant sua sponte, nor does it enlarge, limit or change in any way the law governing warrant- less arrests.] Rule 5 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 20 The Committee deleted two sentences from Rule 4(c). These sentences permitted a magistrate to question the complainant and other witnesses under oath and re- quired the magistrate to keep a record or summary of such a proceeding. The Committee does not intend this change to discontinue or discourage the practice of having the complainant appear personally or the prac- xxxx of making a record or summary of such an appear- ance. Rather, the Committee intended to leave Rule 4(c) neutral on this matter, neither encouraging nor discouraging these practices. The Committee added language a new section that provides that the determination of good cause for the issuance of a warrant in subdivisions lieu of a summons shall not be grounds for a motion to suppress evidence. This provision does not apply when the issue is whether there was probable cause to believe an offense has been committed. This provision does not in any way expand or limit the so- called ‘‘exclusionary rule.’’ NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 94–414; 1975 AMENDMENT Rule 4(e)(3) deals with the manner in which warrants and summonses may be served. The House version pro- vides two methods for serving a summons: (e)(2)1) personal service upon the defendant, or (2) service by leaving it with someone of suitable age at the defendant’s dwell- ing and by mailing it to the defendant’s last known ad- dress. The Senate version provides three methods: (1) personal service, (2) service by leaving it with someone of suitable age at the defendant’s dwelling, or (3) serv- ice by mailing it to defendant’s last known address. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES—1993 AMENDMENT The Rule is amended to conform to the Judicial Im- provements Act of 1990 [P.L. 101–650, Title III, Section 321] which provides that each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge. 1975 AMENDMENT
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Committee Action. The Committee agrees with and approves the basic change in Rule 4. The decision to take a citizen into custody is a very important one with far-reaching consequences. That decision ought to be made by a neutral official (a magistrate) rather than by an interested party (the prosecutor). It has been argued that undesirable consequences will result if this change is adopted—including an increase in the number of fugitives and the introduction of sub- stantial delays in our system of criminal justice. [See testimony of Assistant Attorney General X. Xxxxxxx Xxxxxxxxx in Hearings on Proposed Amendments to Federal Rules of Criminal Procedure Before the Sub- committee on Criminal Justice of the House Commit- tee on the Judiciary, 93d Cong., 2d Sess., Serial No. 61, at 41–43 (1974) [hereinafter cited as ‘‘Hearing I’’].] The Committee has carefully considered these arguments and finds them to be wanting. [The Advisory Commit- tee on Criminal Rules has thoroughly analyzed the ar- guments raised by Xx. Xxxxxxxxx and convincingly demonstrated that the undesirable consequences pre- dicted will not necessarily result. See Hearings on Pro- posed Amendments to Federal Rules on Proposed Amendments to Federal Rules of Criminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Congress, 1st Session, Serial No. 6, at 208–09 (1975) [hereinafter cited ‘‘Hearings II’’].] The present rule permits the use of a summons in lieu of a warrant. The major difference be- tween the present rule and the proposed rule is that the present rule vests the decision to issue a summons or a warrant in the prosecutor, while the proposed rule vests that decision in a judicial officer. Thus, the basic premise underlying the arguments against the proposed rule is the notion that only the prosecutor can be trust- ed to act responsibly in deciding whether a summons or a warrant shall issue. The Committee rejects the notion that the federal ju- diciary cannot be trusted to exercise discretion wisely and in the public interest. The Committee recast the language of Rule 4(b). No change in substance is intended. The phrase ‘‘valid rea- son’’ was changed to ‘‘good cause,’’ a phrase with which lawyers are more familiar. [Rule 4, both as proposed by the Supreme Court and as changed by the Committee, does not in any way authorize a magistrate to issue a summons or a warrant sua sponte, nor does it enlarge, limit or change in any way the law governing warrant- less arrests.] The Committee deleted two sentences from Rule 4(c). These sentences permitted a magistrate to question the complainant and other witnesses under oath and re- quired the magistrate to keep a record or summary of such a proceeding. The Committee does not intend this change to discontinue or discourage the practice of having the complainant appear personally or the prac- xxxx of making a record or summary of such an appear- ance. Rather, the Committee intended to leave Rule 4(c) neutral on this matter, neither encouraging nor discouraging these practices. The Committee added a new section that provides that the determination of good cause for the issuance of a warrant in lieu of a summons shall not be grounds for a motion to suppress evidence. This provision does not apply when the issue is whether there was probable cause to believe an offense has been committed. This provision does not in any way expand or limit the so- called ‘‘exclusionary rule.’’ NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 94–414; 1975 AMENDMENT Rule 4(e)(3) deals with the manner in which warrants and summonses may be served. The House version pro- vides two methods for serving a summons: (1) personal service upon the defendant, or (2) service by leaving it with someone of suitable age at the defendant’s dwell- ing and by mailing it to the defendant’s last known ad- dress. The Senate version provides three methods: (1) personal service, (2) service by leaving it with someone of suitable age at the defendant’s dwelling, or (3) serv- ice by mailing it to defendant’s last known address. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES—1993 AMENDMENT The Rule is amended to conform to the Judicial Im- provements Act of 1990 [P.L. 101–650, Title III, Section 321] which provides that each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 4 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic, except as noted below. The first non-stylistic change is in Rule 4(a), which has been amended to provide an element of discretion in those situations when the defendant fails to respond to a summons. Under the current rule, the judge must in all cases issue an arrest warrant. The revised rule provides discretion to the judge to issue an arrest war- rant if the attorney for the government does not re- quest that an arrest warrant be issued for a failure to appear. Current Rule 4(b), which refers to the fact that hear- say evidence may be used to support probable cause, has been deleted. That language was added to the rule in 1974, apparently to reflect emerging federal case law. See Advisory Committee Note to 1974 Amendments to Rule 114 (citing cases). A similar amendment was made to Rule 41 in 1972. In the intervening years, particularly those relating however, the case law has become perfectly clear on that propo- sition. Thus, the Committee believed that the reference to hearsay was no longer necessary. Furthermore, the plea nego- tiating procedure, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely limited reference to hearsay evidence was misleading to the extent that it does on negotiated dispositions might have suggested that other forms of casesinadmissible evidence could not be considered. HoweverFor example, crowded court dockets make plea negotiating the rule made no reference to considering a fact defendant’s prior criminal record, which clearly may be considered in deciding whether probable cause ex- ists. See, e.g., Xxxxxxxx v. United States, 338 U.S. 160 (1949) (officer’s knowledge of defendant’s prior criminal activ- ity). Rather than address that issue, or any other simi- lar issues, the Committee believed that the matter was best addressed in Rule 1101(d)(3), Federal Rules of Evi- dence. That rule explicitly provides that the Federal Rules of Criminal Procedure should contend withEvidence do not apply to ‘‘preliminary exami- nations in criminal cases, . . . issuance of warrants for arrest, criminal summonses, and search warrants.’’ The Advisory Committee Note accompanying that rule rec- ognizes that: ‘‘The nature of the proceedings makes ap- plication of the formal rules of evidence inappropriate and impracticable.’’ The Committee did not intend to make any substantive changes in practice by deleting the reference to hearsay evidence. New Rule 4(b), which is currently Rule 4(c), addresses the form of an arrest warrant and a summons and in- Rule 4.1 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 20 cludes two non-stylistic changes. First, Rule 4(b)(1)(C) mandates that the warrant require that the defendant be brought ‘‘without unnecessary delay’’ before a judge. The Committee accepts believed that this was a more appro- priate standard than the basic structure current requirement that the defendant be brought before the ‘‘nearest available’’ magistrate judge. This new language accurately re- flects the thrust of the original rule, that time is of the essence and provisions of that the defendant should be brought with dispatch before a judicial officer in the district. Sec- ond, the revised rule states a preference that the de- fendant be brought before a federal judicial officer. Rule 11(e4(b)(2) has been amended to require that if a xxxxxxx is issued, the defendant must appear before a magistrate judge. The current rule requires the appear- ance before a ‘‘magistrate,’’ which could include a state or local judicial officer. This change is consistent with the preference for requiring defendants to appear before federal judicial officers stated in revised Rule 4(b)(1). Rule 11(e4(c) as proposed (currently Rule 4(d)) includes three changes. First, current Rule 4(d)(2) states the traditional rule recognizing the territorial limits for executing war- rants. Rule 4(c)(2) includes new language that reflects the recent enactment of the Military Extraterritorial Jurisdiction Act (Pub. L. No. 106–523, 114 Stat. 2488) that permits each federal court arrests of certain military and Depart- ment of Defense personnel overseas. See also 14 U.S.C. § 89 (Coast Guard authority to decide for itself effect arrests outside ter- ritorial limits of United States). Second, current Rule 4(d)(3) provides that the extent arresting officer is only re- quired to which it will permit plea negotiations inform the defendant of the offense charged and that a warrant exists if the officer does not have a copy of the warrant. As revised, Rule 4(c)(3)(A) explic- itly requires the arresting officer in all instances to be carried on within its own jurisdic- tionin- form the defendant of the offense charged and of the fact that an arrest warrant exists. No court is compelled The new rule con- tinues the current provision that the arresting officer need not have a copy of the warrant, but if the defend- ant requests to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements ifsee it, and the officer must show the war- rant to the extent that, the court permits such negotiations and agreements. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreementsdefendant as soon as possible. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit attempt to define any form of plea agreement particular time limits for showing the warrant to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offensesdefendant. Third, Rule 4(c)(3)(C) is taken from former Rule 9(c)(1). That provision specifies the defend- ant can plead guilty or nolo contendere manner of serving a summons on an organization. The Committee believed that Rule 4 was the more appropriate location for gen- eral provisions addressing the mechanics of arrest war- rants and summonses. Revised Rule 9 liberally cross- references the basic provisions appearing in return for Rule 4. Under the prosecutor’s recommending amended rule, in all cases in which a sentencesum- mons is being served on an organization, a copy of the summons must be mailed to the organization. Fourth, a change is made in Rule 4(c)(4). Currently, Rule 4(d)(4) requires that an unexecuted warrant must be returned to the judicial officer or judge who issued it. As amended, Rule 4(c)(4)(A) provides that after a warrant is executed, the officer must return it to the judge before whom the defendant and prosecutor can agree will appear under Rule 5. At the government’s request, however, an un- executed warrant must be canceled by a magistrate judge. The change recognizes the possibility that a particular sentence at the time the warrant is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For examplereturned, the plea agreement issuing judicial offi- cer may bind not be available. COMMITTEE NOTES ON RULES—2011 AMENDMENT Rule 4 is amended in three respects to make the defendant to cooperate with ar- rest warrant process more efficient through the prosecution in a different investigation. The Committee intends by its approval use of Rule 11(e) to permit the parties to agree on such terms in a plea agreementtechnology.] The Committee added language in subdivisions (e)(2)
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Committee Action. The Committee agrees with and approves the basic change in Rule 4. The decision to take a citizen into custody is a very important one with far-reaching consequences. That decision ought to be made by a neutral official (a magistrate) rather than by an interested party (the prosecutor). It has been argued that undesirable consequences will result if this change is adopted—including an increase in the number of fugitives and the introduction of sub- stantial delays in our system of criminal justice. [See testimony of Assistant Attorney General W. Xxxxxxx Xxxxxxxxx in Hearings on Proposed Amendments to Federal Rules of Criminal Procedure Before the Sub- committee on Criminal Justice of the House Commit- tee on the Judiciary, 93d Cong., 2d Sess., Serial No. 61, at 41–43 (1974) [hereinafter cited as ‘‘Hearing I’’].] The Committee has carefully considered these arguments and finds them to be wanting. [The Advisory Commit- tee on Criminal Rules has thoroughly analyzed the ar- guments raised by Xx. Xxxxxxxxx xnd convincingly demonstrated that the undesirable consequences pre- dicted will not necessarily result. See Hearings on Pro- posed Amendments to Federal Rules on Proposed Amendments to Federal Rules of Criminal Procedure Before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Congress, 1st Session, Serial No. 6, at 208–09 (1975) [hereinafter cited ‘‘Hearings II’’].] The present rule permits the use of a summons in lieu of a warrant. The major difference be- tween the present rule and the proposed rule is that the present rule vests the decision to issue a summons or a warrant in the prosecutor, while the proposed rule vests that decision in a judicial officer. Thus, the basic premise underlying the arguments against the proposed rule is the notion that only the prosecutor can be trust- ed to act responsibly in deciding whether a summons or a warrant shall issue. The Committee rejects the notion that the federal ju- diciary cannot be trusted to exercise discretion wisely and in the public interest. The Committee recast the language of Rule 4(b). No change in substance is intended. The phrase ‘‘valid rea- son’’ was changed to ‘‘good cause,’’ a phrase with which lawyers are more familiar. [Rule 4, both as proposed by the Supreme Court and as changed by the Committee, Rule 4 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE does not in any way authorize a magistrate to issue a summons or a warrant sua sponte, nor does it enlarge, limit or change in any way the law governing warrant- less arrests.] The Committee deleted two sentences from Rule 4(c). These sentences permitted a magistrate to question the complainant and other witnesses under oath and re- quired the magistrate to keep a record or summary of such a proceeding. The Committee does not intend this change to discontinue or discourage the practice of having the complainant appear personally or the prac- xxxx of making a record or summary of such an appear- ance. Rather, the Committee intended to leave Rule 4(c) neutral on this matter, neither encouraging nor discouraging these practices. The Committee added a new section that provides that the determination of good cause for the issuance of a warrant in lieu of a summons shall not be grounds for a motion to suppress evidence. This provision does not apply when the issue is whether there was probable cause to believe an offense has been committed. This provision does not in any way expand or limit the so- called ‘‘exclusionary rule.’’ NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 94–414; 1975 AMENDMENT Rule 4(e)(3) deals with the manner in which warrants and summonses may be served. The House version pro- vides two methods for serving a summons: (1) personal service upon the defendant, or (2) service by leaving it with someone of suitable age at the defendant’s dwell- ing and by mailing it to the defendant’s last known ad- dress. The Senate version provides three methods: (1) personal service, (2) service by leaving it with someone of suitable age at the defendant’s dwelling, or (3) serv- ice by mailing it to defendant’s last known address. NOTES OF ADVISORY COMMITTEE ON RULES—1987 AMENDMENT The amendments are technical. No substantive change is intended. NOTES OF ADVISORY COMMITTEE ON RULES—1993 AMENDMENT The Rule is amended to conform to the Judicial Im- provements Act of 1990 [P.L. 101–650, Title III, Section 321] which provides that each United States magistrate appointed under section 631 of title 28, United States Code, shall be known as a United States magistrate judge. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 4 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic, except as noted below. The first non-stylistic change is in Rule 4(a), which has been amended to provide an element of discretion in those situations when the defendant fails to respond to a summons. Under the current rule, the judge must in all cases issue an arrest warrant. The revised rule provides discretion to the judge to issue an arrest war- rant if the attorney for the government does not re- quest that an arrest warrant be issued for a failure to appear. Current Rule 4(b), which refers to the fact that hear- say evidence may be used to support probable cause, has been deleted. That language was added to the rule in 1974, apparently to reflect emerging federal case law. See Advisory Committee Note to 1974 Amendments to Rule 114 (citing cases). A similar amendment was made to Rule 41 in 1972. In the intervening years, particularly those relating however, the case law has become perfectly clear on that propo- sition. Thus, the Committee believed that the reference to hearsay was no longer necessary. Furthermore, the plea nego- tiating procedure, have generated much comment and criticism. No observer is entirely happy that our xxxxx- nal justice system must rely limited reference to hearsay evidence was misleading to the extent that it does on negotiated dispositions might have suggested that other forms of casesinadmissible evidence could not be considered. HoweverFor example, crowded court dockets make plea negotiating the rule made no reference to considering a fact defendant’s prior criminal record, which clearly may be considered in deciding whether probable cause ex- ists. See, e.g., Xxxxxxxx x. United States, 338 U.S. 160 (1949) (officer’s knowledge of defendant’s prior criminal activ- ity). Rather than address that issue, or any other simi- lar issues, the Committee believed that the matter was best addressed in Rule 1101(d)(3), Federal Rules of Evi- dence. That rule explicitly provides that the Federal Rules of Criminal Procedure should contend withEvidence do not apply to ‘‘preliminary exami- nations in criminal cases, . . . issuance of warrants for arrest, criminal summonses, and search warrants.’’ The Advisory Committee Note accompanying that rule rec- ognizes that: ‘‘The nature of the proceedings makes ap- plication of the formal rules of evidence inappropriate and impracticable.’’ The Committee did not intend to make any substantive changes in practice by deleting the reference to hearsay evidence. New Rule 4(b), which is currently Rule 4(c), addresses the form of an arrest warrant and a summons and in- cludes two non-stylistic changes. First, Rule 4(b)(1)(C) mandates that the warrant require that the defendant be brought ‘‘without unnecessary delay’’ before a judge. The Committee accepts believed that this was a more appro- priate standard than the basic structure current requirement that the defendant be brought before the ‘‘nearest available’’ magistrate judge. This new language accurately re- flects the thrust of the original rule, that time is of the essence and provisions of that the defendant should be brought with dispatch before a judicial officer in the district. Sec- ond, the revised rule states a preference that the de- fendant be brought before a federal judicial officer. Rule 11(e4(b)(2) has been amended to require that if a suxxxxx xs issued, the defendant must appear before a magistrate judge. The current rule requires the appear- ance before a ‘‘magistrate,’’ which could include a state or local judicial officer. This change is consistent with the preference for requiring defendants to appear before federal judicial officers stated in revised Rule 4(b)(1). Rule 11(e4(c) as proposed (currently Rule 4(d)) includes three changes. First, current Rule 4(d)(2) states the traditional rule recognizing the territorial limits for executing war- rants. Rule 4(c)(2) includes new language that reflects the recent enactment of the Military Extraterritorial Jurisdiction Act (Pub. L. No. 106–523, 114 Stat. 2488) that permits each federal court arrests of certain military and Depart- ment of Defense personnel overseas. See also 14 U.S.C. § 89 (Coast Guard authority to decide for itself effect arrests outside ter- ritorial limits of United States). Second, current Rule 4(d)(3) provides that the extent arresting officer is only re- quired to which it will permit plea negotiations inform the defendant of the offense charged and that a warrant exists if the officer does not have a copy of the warrant. As revised, Rule 4(c)(3)(A) explic- itly requires the arresting officer in all instances to be carried on within its own jurisdic- tionin- form the defendant of the offense charged and of the fact that an arrest warrant exists. No court is compelled The new rule con- tinues the current provision that the arresting officer need not have a copy of the warrant, but if the defend- ant requests to permit any plea negotia- tions at all. Proposed Rule 11(e) regulates plea negotia- tions and agreements ifsee it, and the officer must show the war- rant to the extent that, the court permits such negotiations and agreements. [Pro- posed Rule 11(e) has been criticized by some federal judges who read it to mandate the court to permit plea negotiations and the reaching of plea agreementsdefendant as soon as possible. The Advisory Committee stressed during its testimony that the rule does not mandate that a court permit attempt to define any form of plea agreement particular time limits for showing the warrant to be presented to it. See, e.g., the remarks of United States Circuit Judge Xxxxxxx X. Xxxxxxx in Hearings II, at 196. See also the exchange of correspondence between Judge Xxxxxxx and United States District Judge Xxxxx X. Xxxxxxx in Hearings II, at 289–90.] Proposed Rule 11(e) contemplates 4 different types of plea agreements. First, the defendant can plead guilty or nolo contendere in return for the prosecutor’s reduc- ing the charge to a less serious offense. Second, the de- fendant can plead guilty or nolo contendere in return for the prosecutor dropping, or not bringing, a charge or charges relating to other offensesdefendant. Third, Rule 4(c)(3)(C) is taken from former Rule 9(c)(1). That provision specifies the defend- ant can plead guilty or nolo contendere manner of serving a summons on an organization. The Committee believed that Rule 4 was the more appropriate location for gen- eral provisions addressing the mechanics of arrest war- rants and summonses. Revised Rule 9 liberally cross- references the basic provisions appearing in return for Rule 4. Under the prosecutor’s recommending amended rule, in all cases in which a sentencesum- mons is being served on an organization, a copy of the summons must be mailed to the organization. Fourth, a change is made in Rule 4(c)(4). Currently, Rule 4(d)(4) requires that an unexecuted warrant must be returned to the judicial officer or judge who issued it. As amended, Rule 4(c)(4)(A) provides that after a warrant is executed, the officer must return it to the judge before whom the defendant and prosecutor can agree will appear under Rule 5. At the government’s request, however, an un- executed warrant must be canceled by a magistrate judge. The change recognizes the possibility that a particular sentence at the time the warrant is the appropriate disposition of the case. [It is apparent, though not explicitly stated, that Rule 11(e) contemplates that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. For examplereturned, the plea agreement issuing judicial offi- cer may bind the defendant to cooperate with the prosecution in a different investigationnot be available. The Committee intends by its approval of Rule 11(e) to permit the parties to agree on such terms in a plea agreement.] The Committee added language in subdivisions (e)(2)AMENDMENT BY PUBLIC LAW
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