GCA Title 8, Chapter 70
8 GCA CRIMINAL PROCEDURE
CH. 70 DISCOVERY AND DEPOSITIONS
CHAPTER 70 DISCOVERY AND DEPOSITIONS
NOTE : Chapter 70 continues portions of former Rules 15 and 16 and former Chapter IV (§§ 1335, et seq.) of Title 9 of Part 2 of the Penal Code. However, this new chapter substantially expands the scope of discovery for both the prosecution and the defense. This expansion reflects similar changes in Federal Rules, California and other jurisdictions. However, it is based primarily on recommendations and reasons set out in ABA, Project on Standards for Criminal Justice, Discovery & procedure Before Trial (approved Draft 1970). With respect to discovery by the defense, this statement (of the ABA) echoes that of this California Supreme Court: Absent some governmental requirement that information to be kept confidential for the purpose of effective law enforcement, the state has no interest in denying the accused access to all evidence that can throw light on issues in the case, and in particular it has no interest in convicting on the testimony of witnesses who have not been a rigorously cross-examined and as thoroughly impeached as the evidence permits. People v. Riser, 47 C.2d 566; 305 P.2d 1 (1956). That discovery should not be a ? one-way street ? was most emphatically stated in the leading case of Jones v. Superior Court, 58 C.2d 56, 60; 22 Cal. Rptr. 879; 372P. 2d 919 (1962): Absent the privilege against self-incrimination or other privileges provided by law, the defendant in a criminal case has no valid interest in denying the prosecution access to evidence that can throw light on issues in the case.
- Article 1. Discovery.
- Article 2. Depositions.
ARTICLE 1 DISCOVERY
- § 70.10. Matters Generally Discoverable; Prosecutors > Obligations.
- § 70.15. Other Matters discoverable Upon Good Cause Showing.
- § 70.20. Matters Not Subject to Discovery by Defendant.
- § 70.25. Matters Defense Must Disclose to prosecutor, Upon
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CH. 70 DISCOVERY AND DEPOSITIONS
Latter’s Motion. § 70.30. Contents of Court Order. § 70.35. In Camera Matters. § 70.40. Continuing Duty to Disclose. § 70.45. Failure to Comply; Remedies.
§ 70.10. Matters Generally Discoverable; Prosecutors’ Obligations.
(a) Except as otherwise provided by §§ 70.20 and 70.30, at any time after the first appearance upon noticed motion by the defendant, the court shall order the prosecuting attorney to disclose to the defendant’s attorney or permit the defendant’s attorney to inspect and copy the following material and information within his possession or control, the existence of which is known, or by the exercise of due diligence may become known to the prosecuting attorney: (1) the name and address of any person whom the prosecuting attorney intends to call as a witness at the trial, together with his relevant written or recorded statement; (2) any written or recorded statement and the substance of any oral statement made by the defendant or made by a codefendant if the trial is to be a joint one; (3) 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; (4) any book, paper, document, photograph or tangible object, which the prosecuting attorney intends to use in the trial or which was obtained from or belonged to the defendant; (5) any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses at the trial; (6) whether there has been an electronic surveillance of conversations to which the defendant was party or of his premises;
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CH. 70 DISCOVERY AND DEPOSITIONS
(7) any material or information which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce his punishment therefor. (b) The prosecuting attorney’s obligations under this Section extend to any material information in the possession or control of members of his staff and any other persons who have participated in the investigation or evaluation of the case and who either regularly report or with reference to this case have reported to his office. NOTE : Section 70.10 is new. It is based on ABA, Project on Standards for Criminal Justice Discovery and Procedure Before Trial § 2.1 (Approved draft 1970). See also former Rule 16(a), (b). The ABA standard is stated simply as an obligation of the prosecutor. Section 70.10 is more explicit in that it requires disclosure by the prosecutor upon motion by the defendant and order of the court. Nothing, of course, precludes the prosecutor from voluntarily making available the materials and information listed. See ABA, supra § 2.2.
§ 70.15. Other Matters Discoverable Upon Good Cause Showing.
(a) Except as otherwise provided by this Section and §§ 70.20 and 70.30, upon noticed motion by the defendant and a showing of materiality to the preparation of his defense and that the request is reasonable, the court in its discretion may order the prosecuting attorney to disclose to the defendant’s attorney any relevant material and information not covered by § 70.10. (b) The court may deny the disclosure authorized by this Section if it finds that there is substantial risk to any person of physical harm, intimidation, bribery, economic reprisals or unnecessary annoyance or embarrassment, resulting from such disclosure, which outweighs any usefulness of the disclosure to the defense. NOTE : Section 70.15 is new. It is based on ABA, Project on Standards for Criminal Justice Discovery and Procedure Before Trial § 2.5 (Approved draft 1970). While it is believed that the mandatory discovery provided by § 70.10 will be adequate in virtually every case, that section is not intended to preclude other discovery upon a proper showing. See, e.g., § 70.50 (deposition of third person for discovery purposes). Accordingly, this Section makes clear that the court has authority to order additional discovery upon a proper showing by the defendant and subject to appropriate controls for the protection of third persons.
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CH. 70 DISCOVERY AND DEPOSITIONS COURT DECISIONS : SUPER.CT. 1981 Section 70.15 imposes a requirement of materiality upon the defendant before discovery will be permitted under this Section. Since the defendant has failed to show why the requested material is material, the motion for discovery is denied. People v. Yamat, Cr. 15F-81. SUPER.CT. 1981. This case lists those items which may be discovered by a defendant from the Government in criminal proceedings. People v. Castro , Cr. 52F-81.
§ 70.20. Matters Not Subject to Discovery by Defendant.
Notwithstanding §§ 70.10 and 70.15, the prosecuting attorney shall not be required to disclose: (a) legal research or records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the prosecuting attorney or members of his legal staff; (b) an informant’s identity where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the defendant. However, the identity of an informant may not be kept secret where the prosecuting attorney intends to call such person as a witness at the trial; and (c) confidential records under the Criminal Injuries Compensation Commission. SOURCE: Enacted by P.L. 13-186 (Sept. 2, 1976) as the Criminal Procedure Code of Guam. Codified in Title 8 Guam Code Annotated by P.L. 15-104:7 (Mar. 5, 1980). Amended by P.L. 37-040:2 (Aug. 11, 2023). NOTE : Section 70.20 is new. It is based on ABA, Project on Standards for Criminal Justice Discovery and Procedure Before Trial § 2.6 (Approved draft 1970). As to the general scope of the A work product @ and informant exceptions provided here, see id., at 88-92. It should be noted however, that the A work product @ exclusion is limited by both the nature and the maker of this material. That is, the exclusion is applicable only if the maker of the material is the prosecuting attorney or a member of his legal staff and then only if the source of the material is the lawyer’s own thought processes - opinions, theories, conclusions - not a mere record of what he has seen or heard. CROSS REFERENCE: 8 GCA §§ 70.10 and 70.15.
§ 70.25. Matters Defense Must Disclose to Prosecutor, Upon Latter’s Motion.
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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 A statement @ 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.)
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CH. 70 DISCOVERY AND DEPOSITIONS 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
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and reasonableness. As to the general scope of discovery required by this Section, see generally ABA, supra at 54-78 (commentary to § 2.1).
§ 70.30. Contents of Court Order.
(a) Where an order requiring disclosure under this Chapter is issued, the order shall state and the court shall determine the time, place and manner of making the disclosure required. The court may impose such terms and conditions as the court determines are just, provided that all material and information to which a party is entitled shall be disclosed in time to permit his beneficial use thereof. (b) Where a document or other tangible object contains material, part of which is subject to disclosure pursuant to this Chapter and part of which is not subject to disclosure, only the part subject to disclosure need be disclosed but the entire document or other tangible object shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal. NOTE : Section 70.30 is based on ABA, Project on Standards for Criminal Justice Discovery and Procedure Before Trial §§ 4.3-4.6 (Approved draft 1970).