The Champion

July 2009 , Page 38 

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Trial by Ambush Should Be a Two-Way Street: The Federal Notice-of-Alibi Rule and Mandatory Disclosure of Defense Witnesses

By W. Carl Lietz III

The phrase “trial by ambush” succinctly and accurately describes what it is often like to defend a criminal case in federal court. Although federal discovery rules require the government to make available documents and other items the government intends to utilize in its case-in-chief at trial, with the exception of expert witnesses, the government is not required to identify the individuals it will call as witnesses at trial.1 Moreover, when the government calls a witness to testify, it is not required to produce prior statements provided by the witness until after the witness testifies.2 Consequently, since many cases in federal court are based primarily upon witness testimony, it is not unusual for a criminal defense attorney to turn to his client after the government calls a witness and ask, “Who is that?”

Many criminal defense attorneys enjoy the fly-by-the-seat-of-your-pants experience that this scenario provides. It is challenging. It can be exciting. And in the end, it makes the

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