Rule 12.1(a) of the Federal Rules of Criminal Procedure permits the
government, on written demand, to discover before trial a defendant's alibi
and
alibi witnesses. However, in exchange for such discovery, the government
must
disclose to the defense the names and addresses of the witnesses upon whom
it
intends to rely to establish the defendant's presence at the scene of the
offense, and any other witnesses to be relied on to rebut testimony by the
alibi
witnesses. Rule 12.1(b). The parties are under a continuing duty to notify
each
other of additional witnesses who should have been included among those
originally disclosed. Rule 12.1(c). Because the Rule provides for
mutuality of
discovery, it should satisfy the constitutional requirements of the Fifth
Amendment. SeeWilliams v. Florida, 399 U.S. 78 (1970);
Wardius
v. Oregon, 412 U.S. 470 (1973).
Non-compliance by either party may result in the exclusion of the
testimony of the undisclosed witness (other than the defendant). Rule
12.1(d).
See generallyTaylor v. Illinois, 484 U.S. 400 (1988), on
exclusion
as a remedy for discovery abuses; United States v. Reed, 40 F.3d 1069
(10th Cir. 1994), cert. denied, 115 S. Ct. 1387 (1995). A
finding
of bad faith is not a prerequisite to exclusion, but it is an important
factor
in determining whether exclusion is appropriate. United States v.
Johnson, 970 F.2d 907 (D.C. Cir. 1992). Courts may be reluctant
to
exclude reliable alibi testimony as a sanction for negligent conduct where
the
prejudice to the government would be minimal. SeeBowling v.
Vose,
3 F.3d 559 (1st Cir. 1993), cert. denied, 510 U.S. 1185
(1994).
Non-compliance may be excused for good cause shown. Rule 12.1(e).
The
need to protect the safety of a government witness has been held to
constitute
good cause for nondisclosure. SeeUnited States v. Wills, 88
F.3d
704 (9th Cir.), cert. denied, 117 S. Ct. 499 (1996).
If a defendant withdraws an alibi defense, the fact that he once
intended to assert it may not be used against him in any civil or criminal
proceeding. Rule 12.1(f).