Guam § 70 - Matters Defense Must Disclose to Prosecutor, Upon

§ 70. Matters Defense Must Disclose to Prosecutor, Upon

Latter's Motion.

Upon noticed motion by the prosecuting attorney, the court

may order:

(a) the defendant to appear at a reasonable time and place and

under such conditions as the court may provide to:

(1) appear in a line-up;

(2) speak for identification by witnesses to an offense;

(3) be finger-printed;

(4) pose for photographs not involving reenactment of a

scene;

(5) try on articles of clothing;

(6) provide specimens of his handwriting;

(7) permit the taking of samples of his blood, hair and

other materials of his body which involve no unreasonable

intrusion thereof; and

(8) submit to a reasonable physical or medical

inspection of his body.

(b) The defendant's attorney to disclose to the prosecuting

attorney or permit the prosecuting attorney to inspect and copy

any report or statement of an expert, made in connection with the

case, including results of physical or mental examinations and of

scientific tests, experiments or comparisons which the defense

attorney intends to use in the trial.

(c) The defendant's attorney to state the nature of any defense

which he intends to use at trial and the name and address of any

person whom the defendant's attorney intends to call as a witness

in support thereof.

COURT DECISIONS: DISTRICT COURT, APP. Div., 1978. Under

former Rules of Criminal Procedure, a police report does not constitute a

Astatement@ of the officer preparing it. The Prosecutor's failure to provide

the police report does not constitute a violation of the discovery order.

People v. Mesa, D.C. Guam, App. Div., Cr. App. #76-08A. Decided

06/08/78.

SUPERIOR COURT, 1978. Statute does not compel criminal defendant to

be a witness against himself by words from his own mouth. People v.

Mesa, et al., Sup. Ct. Cr. ##324F-77, 296F-77 and 327F-77. (Order,

01/24/78; Abbate P.J.)

SUPERIOR COURT, 1978. Under statute, Prosecutor is empowered to

inspect and comply the following: (1) expert testimony or reports

connected with the case; (2) the name and address of any witness for the

defense; and (3) the nature of any defense. Such inspection and copying

may occur ten (10) days prior to the first scheduled date for the trial. People

v. James, et al., Sup. Ct. Cr. ##21F-78, 23-78, 26-78, 44-78 and 93F-78.

(Order, 06/08/78; Abbate, P.J.)

SUPERIOR COURT, 1978. Statute does not violate a defendant's privilege

against self-incrimination. People v. Aflague. Sup. Ct. Cr. #200F-78

(Decision and Order, 12/05/78; Benson, J.)

NOTE: Section 70.25 is new. It is based on ABA, Project on Standards for

Criminal Justice Discovery and Procedure Before Trial §§ 3.1-3.3

(Approved draft 1970). See also former Rule 16(c). Subsection (a) deals

with matters that will often take place as a part of investigations prior to a

formal charge being rendered. However, there is no reason why these

investigatory procedures will not take place later and this Section makes

clear that the court has the power to order the defendant to cooperate in

this regard. Appearances for the purposes listed here may be included in

the order providing for the defendant's pretrial release. See §§ 40.15, 40.29.

It should be noted in this regard that the ability to order the subsequent

appearance of the defendant permits the extended use of a summons or

citation in lieu of arrest and detention. See §§ 15.20, 14.40; Chapter 25. No

attempt is made here to state standards for the conduct of the investigatory

procedures contemplated under this Section; however, Subsection (a) does

make clear that the court may prescribe the conditions under which such

procedures may be taken.

Subsection (b) is based on § 3.2 of the ABA standards which in turn

is adapted from Rule 16(c) of the Federal Rules of Criminal Procedure.

Subsection (b) is not, however, conditional upon a reciprocal request by

the defendant. Disclosure is limited to material that the defense intends to

use at trial - this would seem to obviate any constitutional problems arising

out of the privilege against self-incrimination. It might be argued that the

defense at the time of motion does not know whether material will be used

at the trial; however, § 70.40 provides a continuing duty to disclose and

the court may use its contempt power to punish a willful refusal to comply

with its order.

Subsection (c) is based on § 3.3 of the ABA standards, see ABA,

supra § 3.3, at 3-6. See also proposed Fed. R. Crim. P. 12.1 (notice of alibi);

12.2 (defense based upon mental condition).

Reference in the ABA standard to record grand jury testimony has

been deleted here. Section 50.38 provides separately that testimony

before the grand jury be transcribed and that a copy of the transcript be

furnished to the defendant before trial. Unlike former Rule 16(b), §

70.10 provides for mandatory disclosure (subject to the restrictions of

§§ 70.20 and 70.30) and does not require any special showing of need

and reasonableness. As to the general scope of discovery required by

this Section, see generally ABA, supra at 54-78 (commentary to § 2.1).