 The purpose of the pretrial conference, as described in rule 17.1, is basically the same as in a civil case. That is, to get the parties, the lawyers, and the judge together in order to discuss matters that will promote, in the words of the rule, a fair and expeditious trial. That means simply, the conference should be used to address both case management considerations and substantive issues. Under rule 17.1, you may conduct one or more pretrial conferences, either on motion of any party or upon your own motion. At the conclusion of a conference, you should prepare and file a memorandum of the matters agreed upon. If time does not permit, then I have a transcript of the hearing prepared. If any admissions are made by the defendant or the defendant's attorney at the conference, they may not be used against the defendant unless they are reduced to writing and signed by the defendant and the defendant's attorney. An example of that would be a stipulation which would avoid the need for calling certain witnesses at the trial. In fact, one of your major goals at the pretrial conference should be to get the parties to agree to enter into stipulations. Why? Because stipulations help streamline the trial. For example, by making it unnecessary to call foundation witnesses. Of course, the foundation for a particular item of evidence may be hotly disputed. But when that's not the case, it's arguably in everyone's best interest to agree upon a stipulation that obviates the need for a parade of witnesses. You might also discuss with counsel the possibility of stipulating certain facts, such as the nature of a controlled substance or whose handwriting appears on a document if they aren't really at issue in the case. I'd like to suggest two main ways of using the pretrial conference to obtain a speedy and efficient trial. First, use the conference to ensure that there is good advanced preparation for trial by counsel. And second, resolve as many substantive issues as possible at the conference, so you don't wind up interrupting the trial to resolve them. At the pretrial conference, you should check to see if all motions have been filed as ordered, handle requests to allow late filing of motions, and set dates for hearing motions if you haven't set them previously. In my court, as in Judge Hatter's court, all of these deadlines are set at the arraignment. That eliminates the need for a separate pretrial conference prior to the hearing on motions. Instead, schedule a combined motions hearing and pretrial conference for the same day. And on that day, you rule on pending motions, then begin your pretrial conference. Of course, sometimes it's necessary to set separate hearing dates for special evidentiary matters. That's true. For example, there may be a need to set a separate hearing for a Miranda-related motion to suppress requiring the testimony of five or six witnesses. But I would strongly counsel against hearing any type of evidentiary motion on the date of trial. Doing so will inevitably undercut any previous ruling you've made setting a deadline for completion of plea bargaining. It will also have an adverse effect on counsel's trial preparation. When you come to the day of trial, you should be in a position to proceed immediately with jury selection, opening statements, and presentation of evidence. At the pretrial conference, you should also revisit the question of discovery in depth. You need to know whether or not discovery has been completed. If it hasn't, you should ensure that the remaining discovery is completed pursuant to a specific schedule, which you said, and which will not interfere with other deadlines or hearing dates you've said in the case. Now, as a new judge, you may find it helpful to use a checklist of some sort in making sure that all discovery-related matters have been completed. This is also the time to resolve any non-evidentiary discovery or Brady issues and set firm deadlines for compliance with your rulings. Now, in a civil case, the pretrial conference would naturally be an occasion to inquire into the status of settlement negotiations. But under Rule 11E1 of the Rules of Criminal Procedure, the court is specifically prohibited from participating in any discussions regarding plea negotiations. You simply cannot involve yourself in plea negotiations in a criminal case. What you can do is encourage the parties to engage in those negotiations and set a deadline for presentation of any negotiated plea bargain to the court. I will not consider any plea bargain presented to the court less than seven days prior to trial. Unless there are some exceptional circumstances. Whether or not you choose to use a deadline like this in your court is entirely up to you. Some judges have told me they would never consider using such a deadline because they're always happy to take a plea of guilty, whether it's a week before trial, the morning of trial, or a week into the trial. The reason that I have that rule and use it is because I believe lawyers will typically comply with that deadline if they know you're serious about it. Also, by following this rule, I keep to an absolute minimum the number of Monday afternoons where I find myself without a case to try because the lawyers did not give any advance notice of successful plea negotiations. Now let's consider another issue related to discovery. The production of statements of witnesses other than the defendant. Of course, we indicated earlier that prior statements of witnesses aren't discoverable until after the witnesses have testified on direct examination. So this may seem like a trial matter at first bludge, but as you'll soon see, there are strong reasons for making it a pretrial matter as well. Rule 26.2 of the Rules of Criminal Procedure, entitled 18, section 3500 of the U.S. Code, govern this particular area. They address what we commonly refer to as Jenks Act material. The basic requirements of the Jenks Act are set out in section 3500. Section A of section 3500 specifically provides that any criminal prosecution brought by the United States, no statement or report in the possession of the United States, which was made by a government witness or prospective government witness, other than the defendant, shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case. Section 3500 goes on to provide that at the conclusion of direct examination, you are to order the United States to produce any prior statement of the witness, which relates to the subject matter the witness has testified about. That is, if the defendant so moves, if the entire content of the statement relates to the subject matter the witness testified about, then you must order it to be delivered directly to the defendant for his examination and use. If the government claims that part of the statement does not relate to the subject matter of the testimony of the witness, then you must order the United States to deliver the statement to the court for inspection in camera. You are then to excise any portions of the statement which do not relate to the subject matter of the testimony of the witness. Now, once the material is excised, you must direct delivery of the statement to the defendant for his or her use. Under Section D of the Act, if the United States elects not to comply with your order to turn over the statement, either in its completed or redacted form, then you must strike the testimony of the witness from the record and determine whether or not a mistrial is appropriate. Rule 26-2 is substantially a restatement of what is contained in the Jenks Act. However, it should be noted that Rule 26-2 requires the disclosure of prior statements of defense witnesses, as well as government witnesses. The rule is designed to place the same disclosure requirements on the defense as the Jenks Act places on the government. Like the Jenks Act, however, Rule 26-2 does not apply to prior statements of the defendant. Now, here's where this becomes a pretrial matter. The Jenks Act provides that you may recess the trial to allow defense counsel a reasonable opportunity to examine prior statements of government witnesses prior to cross-examination. And so you should, if counsel has not previously seen those statements and had an opportunity to incorporate questions about them into his or her cross-examination. But I would suggest you don't want to be in the position of recessing your trial each time the direct examination of a government witness is completed. As we discussed earlier, you cannot require the prosecutor to disclose Jenks statements in advance of trial, but you can and should strongly urge the prosecutor to do so. Again, anything that can be done to encourage an open file policy should be done. The alternative is that the trial will be delayed in order to allow the defendant to examine the Jenks Act statements of each government witness before cross-examination. And frankly, I have never had this occur. Another important thing that should be discussed at the pretrial conference is the approximate length of trial. You may be thinking, why worry about this? Most criminal trials are short, two or three days in length. But when you're handling a complicated criminal case or a conspiracy case with multiple defendants, it's very important to get a handle on the shape of the trial at the pretrial conference. In my experience, lawyers aren't always prepared to give you a reasonable estimate on the length of trial. If you simply ask the prosecutor or defense attorney how long do you think this trial is going to take, you won't get a response that will be helpful to you in scheduling. You have to be more specific in your questioning. You need to press the attorneys to specify the number of witnesses they intend to call. Then ask them how long they estimate it will take to present those witnesses. In a case that's only going to take two or three days to try, perhaps you don't need to spend a lot of time on this. But in a complex criminal case, I've taken to going to somewhat unusual lengths to try and identify what the shape of the trial will be. It's important to remember that many of the things you'll be trying to accomplish pretrial can only be accomplished by agreement as opposed to order of the court. That means you should begin trying to shape those agreements during the early stages of the case. For example, if your U.S. attorney is willing to engage in an open file policy on the case, then it's reasonable to expect that the parties can reach an agreement to exchange witness lists 14 days prior to trial. That is, with the understanding that the witness lists are not written in stone, that names may be added or subtracted. But in cases involving hundreds or thousands of pages of discovery and potentially hundreds of witnesses, it's ultimately in everyone's best interest to know who is most probably going to testify or not testify. The same with exhibits. That's right. Try to get the attorneys to agree to exchange exhibit lists at a pretrial conference. If you succeed in that endeavor, you'll end up with something similar to the sort of final pretrial you'd have in a civil case. Some complex cases involve potentially hundreds if not thousands of exhibits. Again, it's usually in everyone's best interest to know what exhibits are probably going to be relied on at trial. Rule 12 of the Federal Rules of Criminal Procedure discusses pleadings and motions. The rule requires the following motions to be filed prior to trial. Motions raising defenses and objections based on defects in the institution of the prosecution. Motions raising defenses and objections based on defects in the indictment or information. Motions to suppress, requests for discovery under Rule 16, and requests for severance of charges or defendants under Rule 14. Most judges will tell you to let the defendant file whatever motions he or she deem necessary. Nevertheless, it's important to recognize that some motions filed by defense counsel are filed primarily for the record and commonly referred to as boilerplate. Basically, their file so the record reflects that defense counsel is diligently representing his or her client. It's important that you develop the ability to distinguish between motions filed for the record and those filed in a serious effort to prevail upon an important issue in the case. You'll need to develop that ability in order to allocate your time accordingly. Very often, an evidentiary hearing is required for suppression motions. It's important that you make clear to the attorneys when you set an evidentiary hearing that you expect each side to have all of its witnesses available to testify on that hearing date. You don't want to wind up having to continue the matter so that all the witnesses can testify. Let's talk for a minute now about the exclusionary rule. In essence, the rule requires that when a right of the defendant has been violated, the evidence obtained as a result of that violation must be suppressed. That is, unless an exception to the exclusionary rule applies, or the government is able to establish that it obtained the evidence from an independent source. When a defendant files a motion for suppression of evidence, alleging violation of fourth, fifth, or sixth amendment rights, the government usually has the burden of going forward and showing that the evidence was not obtained in violation of the defendant's rights. Once the government meets that burden, the defendant has the burden of showing a violation of the constitutional right. Consider, for example, a motion to suppress a statement given by the defendant. The motion alleges the statement was obtained in violation of the defendant's fifth amendment rights. The government would normally have the burden of going forward on such a motion. The government's witnesses would establish when and where the statement was taken, who was present during the statement, the events leading up to the taking of the statement, and the matters raised by the motion to suppress. The motion might allege, for example, that the defendant did not receive Miranda warnings, or that the defendant was incapable of giving a voluntary waiver because he or she was under the influence of drugs or medication. After the government has presented its witnesses, the defense would have the burden of presenting evidence showing that the defendant was not given the Miranda warnings, or that the defendant did not knowingly waive them. There is an exception to the general rule that the government goes first in presenting its evidence at a suppression hearing. That is, of course, when a judicial officer has issued a search warrant. That's correct. If a search warrant has been issued in the case, there has already been a finding of probable cause by a judicial officer. So the defendant has the burden of going forward and making a prima facie showing that his or her rights have been violated. A defendant who testifies at one of these hearings may do so without waiving his or her fifth amendment rights. However, it should be noted that a defendant's motion hearing testimony may later be used to impeach the defendant's trial testimony. Also, suppressed evidence may be used for impeachment purposes at the trial. Rules 8 and 14 cover Joinder and Severance. A Severance motion may allege that the defendants will present conflicting and irreconcilable defenses, that there is a disparity in the evidence as to the defendants, that the defendant desires to call a co-defendant as a witness, or that the defendant will be prejudiced by admission of a non-testifying co-defendant statement implicating the defendant. We refer to the last situation on that list as a Bruton situation. Bruton versus the United States held that Sixth Amendment requires severance when the government seeks to introduce a statement by a non-testifying co-defendant, which implicates that defendant. The rationale behind the rule is that instructing the jury that the statement is to be considered only as evidence against the non-testifying co-defendant is simply not an adequate substitute for cross-examination. Which means that severance is not required under Bruton if the co-defendant takes the stand and can be cross-examined about the statement. That's right, nor is it required if the statement is properly redacted. Now the case of Richardson versus Marsh holds an out-of-court statement by a non-testifying co-defendant may be admitted at a joint trial without violating the defendant's Sixth Amendment right to cross-examination if the statement is redacted to remove any reference to the co-defendant and if a proper limiting instruction is also given. When the defendant requests a severance to allow the calling of a co-defendant as a witness on his or her behalf, you must weigh the exculpatory nature of the desired testimony, the desire of the movement to present the testimony, the willingness of the co-defendant to testify and the demands of effective judicial administration. This type of motion for severance cannot be properly considered unless supported by an affidavit by the co-defendant indicating under oath not only that he or she is willing to testify but that he or she will testify if called to testify at a separate trial. This particular severance issue is discussed in depth in the Eccles case cited in your materials. Rule 11 governs guilty pleas and allows the prosecutor and defense counsel to attempt to negotiate a plea agreement to resolve the case. However, the terms of any such plea agreement must be disclosed to you in open court and you are the one who ultimately determines whether or not to accept the agreement. Rule 11 requires that before accepting a guilty plea you ensure that the defendant is entering the plea knowingly, intelligently, and voluntarily. The defendant must understand the charge to which he or she is pleading, what the possible penalties are, and what rights are waived if the plea is entered. You must also make certain that there is a factual basis for the plea. The bench book addresses the taking of pleas of guilty at section 1.06. I would suggest you follow the script set out in the bench book. You may want to make some minor changes but using the bench book ensures that you probe those areas which must be probed if the defendant's plea is to be valid. Rule 11 provides for three basic types of plea agreements. First, charge agreements, that is, where in return for the plea the government will move to dismiss other charges. Second, non-binding sentencing recommendations, where in return for the plea the government agrees to recommend a particular sentence or not to oppose the defendant's request for a particular sentence. And third, binding sentencing agreements, where again in return for the plea the government agrees with the defendant that a specific sentence is the appropriate disposition of the case. The court may accept or reject the plea agreement at the time the plea is offered or defer its decision until after considering the pre-sentence report. In a case where there is a non-binding agreement involving a recommended sentence the court must advise the defendant that if the court does not accept the recommended sentence in the plea agreement the defendant nevertheless has no right to withdraw the guilty plea. Now a number of factors are involved in deciding whether or not to accept or reject a proposed plea agreement. These factors are addressed more fully in the program on sentencing and other post trial matters. So I'll just mention them briefly here. First of all, the United States Sentencing Commission's policy statements make clear that you should only accept plea agreements reflecting the seriousness of the actual offense. Also under the Commission Sentencing Guidelines all relevant conduct that is all acts or omissions of the defendant that are part of the same course of conduct or common scheme or plan as the offensive conviction must be included in determining the sentencing range. This means the defendant's actual sentence may be greater than that contemplated by the plea agreement. In light of that possibility you might want to wait until you consider the pre-sentence report before accepting the plea agreement. Because the court must consider all relevant conduct in determining the proper guideline sentence non-binding sentencing agreements are particularly risky for defendants. Now let's discuss the situation where a defendant enters a plea of guilty and then files a motion to withdraw the plea. What should you do? The motion to withdraw the plea could be filed as early as the day the plea is offered or as late as the day of the sentencing hearing. I almost always take the view that if a defendant wishes to withdraw his or her plea at any time prior to the imposition of sentence I will allow it. Of course I never say never. There may be a circumstance where it is completely inappropriate but my concern is this. Whatever the reason for the request to withdraw the plea if the court denies the motion it raises questions about the fundamental fairness of the proceeding. Ordinarily the government is not substantially prejudiced by withdrawal of a guilty plea. Normally if the plea is withdrawn the resulting burden on the government is no more or less than the burden it carries in every criminal case that is the burden of going forward and proving the guilt of the defendant beyond a reasonable doubt at trial. So my feeling is that even if the reason for wanting to withdraw the plea of guilty is a weak one legally the interests of justice are best served by granting the motion. Of course there's another side of the coin here too. If the defendant has entered into a knowing and voluntary plea agreement and tendered that plea to the court then allowing the defendant to withdraw the plea without good reason is allowing the defendant to break his contract with the United States. The court goes to great lengths at the time that the plea is tendered to ensure that the plea is knowing and voluntary. The defendant has every opportunity during the time the plea is being presented to the court to make the court aware of any feelings of hesitancy or uncertainty he or she may have about entering the plea. Consequently there's also a strong argument to be made that allowing the defendant to withdraw a plea of guilty in the absence of a strong legal reason to do so is a bad precedent and encourages disorder in the courts. You should be especially careful in taking a plea or conducting any court proceeding involving a defendant who does not speak English fluently. In that situation the court must make a special effort to ensure because of the language problem that the defendant is making a knowing, intelligent and voluntary waiver. It is also incumbent upon the court to provide an interpreter. The question whether or not an interpreter is needed should be decided the first time a non-English speaking defendant comes into court. Your court should have a list of available interpreters. In dealing with these interpreters over a period of time you'll find that some of them do a much better job than others. You may need to weed out those interpreters who have a good technical command of the foreign language but seem to have difficulty in conveying to the defendant the real meaning of what is being said. I think you'll find that it takes a substantially longer period of time than usual to conduct a plea proceeding using an interpreter. In such cases you'll find it necessary to paraphrase and rephrase the standard bench book questions but you must take the time and effort to do so. Some of the words and phrases that come into play when a guilty plea is being entered don't translate too well and you have to be absolutely sure that the defendant fully understands what he or she is doing. Let's touch upon one other problem area in the taking of pleas. Conditional pleas. As codified in Rule 11A2 a defendant may enter a conditional plea of guilty or a no-lo contender with the consent of the government and the approval of the court. The defendant reserves in writing the right to have the circuit court review on appeal the adverse determination of any specified pre-trial motion. For example, a motion to suppress evidence which has been denied by the court. If the defendant prevails on appeal the guilty plea may be withdrawn. Judge Mem and I trust that our discussion has made clear just how important it is for you to have a good criminal pre-trial plan. As we said at the beginning of the program most cases actually plead out during the pre-trial process but there's no way of knowing at the beginning of the process which case will plead out and which case will actually go to trial. So it's a good business practice for you as a judge to see that efficient pre-trial procedures are followed in every case. Judge Mem. I agree with Judge Hatter's comments and I would end by stressing that active case management during the pre-trial stage can go a long way toward eliminating unnecessary delays both pre-trial and during trial itself. Thank you.