Page 93 - ACTL Journal Win24

Professor Meyn’s conclusion is confirmed in a 1957 law review article by Professor Lester Orfield, who served on the original advisory committee. He wrote that “Rules 26 through 32 of the First Draft of the Federal Rules of Criminal Procedure dated September 8, 1941, were modeled on Rules 26 through 32 of the Federal Rules of Civil Procedure.” Lester Orfield, Depositions in Federal Criminal Cases, South Carolina Law Review, Vol. 9: Iss. 3, Article 4, p. 2 (1957)(“Orfield”).
SO WHAT HAPPENED?
The full committee met in September 1941 to consider this first draft. While the draft had taken six months to complete, it “was undone in four days.” Meyn at 712. According to the Committee’s internal notes, uncovered by Professor Meyn, this was principally because of objections loudly asserted by the Committee’s Secretary, Holtzoff, and a few committee members who followed his lead. These opponents feared that defendants would misuse depositions. They also believed that depositions simply didn’t belong in criminal cases, with one opponent opining that to “go into the other side’s case to examine anybody . . . before trial is a thing you would never think of in a criminal case.” Id. at 721. Another opponent said: “[t]his is a way of getting discovery before trial and preparing evidence to meet it with, which means that unscrupulous defendants may fabricate evidence with which to meet the [Government’s] evidence.” Id. at 722.
With these reservations expressed, Holtzoff – a strong opponent of engrafting the civil rules into the criminal context – volunteered to draft the second version of the rules. That ver- sion dramatically altered the deposition (and other discovery) rights, limiting depositions to situations where there would otherwise be a “failure or delay of justice.” In subsequent Committee drafts over the next two years, the rule was further eroded: it was limited to instances where a witness would not otherwise be available for trial. The other discovery reforms of the civil rules – including document requests, interrogatories and requests to
admit – were also jettisoned.
The criminal rules ultimately adopted by Congress in 1944 parted ways materially from their sister civil rules. As documented by Professor Meyn, this was largely because there were no criminal defense lawyers on the advisory committee, and because of Holtzoff’s “force of personality.” Id. at 736. Holtzoff appears to have had a “tough on crime” mentality. As Holtzoff himself later wrote in a law review article:
[The Rules of Criminal Procedure] must be conducive to a simple, effective and expedi- tious prosecution of crimes . . . Criminals should not go unwhipped of justice because of technicalities . . . The protection of the law-abiding citizen from the ravages of the criminal is one of the principal functions of government. Any form of criminal proce- dure that unnecessarily hampers and unduly hinders the successful fulfillment of this duty must be discarded or radically changed.
Holtzoff, Reform of Federal Criminal Procedure, 12 Geo. Wash. L. Rev. 119, 121 (1944) (quoted in I. Meyn, Separate and Unequal Courtrooms, Arizona L. Rev. Vol. 1, at 26 (2021)).
Not long after penning these thoughts, Holtzoff was nominated by President Truman to the D.C. District Court, where he served until his death in 1969. It is not clear whether Judge Holtzoff carried his decidedly pro-prosecution views to bench. But his colleague, Committee Chair Arthur Vanderbilt, most certainly did, as reflected in a de- cision he wrote when later serving as Chief Justice of the New Jersey Supreme Court in State v. Tune, 98 A.2d 881, at 884 (1953):
In criminal proceedings long experience has taught the courts that often discovery will lead not to honest fact-finding, but on the contrary to perjury and the suppression of evidence. Thus the criminal who is aware of the whole case against him will often
WINTER 2024
JOURNAL 92