IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

v. ) 1:93-CR-421-MHS

)

xxxxxxxxxx  )

______________________________)

MOTION FOR PRETRIAL DISCLOSURE

OF HEARSAY EVIDENCE

COMES NOW the Defendant, xxxxxxx, by and through undersigned counsel, and respectfully moves this Court for an order directing the government to disclose to defense counsel, at least two (2) business days before commencement of trial, any and all possible hearsay evidence which the government may seek to introduce at trial, along with the grounds or basis for the admissibility of such evidence. In support of this motion, Mr. xxxxxxx and his counsel show the Court the following:

(1)

Undersigned counsel anticipates that the government will seek to introduce at trial out-of-court statements offered for the truth of the content of those statements, which would generally be considered hearsay evidence. The form of this anticipated hearsay includes, but is not limited to, statements of unindicted co-conspirators purportedly made against penal interest, and prior sworn statements or testimony of witnesses who are no longer available.

(2)

Pursuant to Rule 104(a) of the Federal Rules of Evidence, preliminary questions concerning admissibility of evidence shall be determined by the court. This preliminary determination of admissibility would apply to possible hearsay evidence. Therefore, undersigned counsel anticipates the need to prepare and file a motion in limine pursuant to Rule 104(a) to challenge any effort of the government to offer possible hearsay evidence. In order for undersigned counsel to effectively represent Mr. xxxxxxx in challenging such evidence, it is necessary for undersigned counsel to be notified of the existence of such evidence prior to trial, so that the trial court can consider such a challenge to that evidence as a preliminary question under Rule 104(a) before commencement of trial.

(3)

If a hearsay statement is permitted to be introduced at trial by the government, then Rule 806 of the Federal Rules of Evidence gives undersigned counsel the right to attack the credibility of the declarant of any such hearsay statement. Included in such an attack on the credibility of the declarant would be the right of undersigned counsel to produce evidence of a statement or conduct by the declarant at any time which was inconsistent with the declarant's hearsay statement, without affording the declarant an opportunity to deny or explain the inconsistency. Furthermore, undersigned counsel would have the right to call the declarant as a witness at trial, and to examine the declarant regarding the hearsay statement as if the declarant was under cross-examination. However, in order to effectively represent Mr. xxxxxxx in attacking the credibility of any hearsay declarant, undersigned counsel must have advance notice of the existence of such possible hearsay evidence and the identity of the declarant. Otherwise, it would be nearly impossible for undersigned counsel to challenge the hearsay evidence when it is offered by the government at trial. Without some advance notice of such hearsay evidence, it will be difficult for undersigned counsel to obtain information to attack the credibility of the declarant, such as prior criminal record, prior inconsistent statements, bias or prejudice against the defendant, personal stake or interest in the outcome of the case, or reputation for lack of truthfulness, as well as to locate the declarant for purposes of trial subpoena.

Based on the above, Mr. xxxxxxx and his undersigned counsel respectfully request that this Court order that the government disclose to defense counsel, at least two business days prior to trial, any and all possible hearsay evidence which the government may seek to introduce at trial. This disclosure should include the content of the hearsay statement, the identity and location of the declarant, and the purported grounds or basis for admissibility of such evidence. Without such a disclosure, undersigned counsel will not be able to adequately and effectively represent Mr. xxxxxxx at trial if the government seeks to introduce any hearsay evidence.

DATED: This ___ day of October, 1993.

Respectfully submitted,

_______________________________

R. GARY SPENCER

ATTORNEY FOR STANLEY xxxxxxx

STATE BAR NO. 671905

Federal Defender Program, Inc.

Suite 3512

101 Marietta Tower

Atlanta, Georgia 30303

(404) 688-7530

CERTIFICATE OF SERVICE

This is to certify that I have this day served a copy of the foregoing Motion for Pretrial Disclosure of Hearsay Evidence by hand delivery upon:

Ms. Sandra E. Strippoli

Assistant United States Attorney

1800 Richard B. Russell Building

75 Spring Street, S. W.

Atlanta, GA 30335

DATED: This ______ day of October, 1993.

_______________________________

R. GARY SPENCER

ATTORNEY FOR STANLEY xxxxxxx

STATE BAR NO. 671905

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