R.I. Super. Ct. R. Crim. P. 26.1

As amended through June 7, 2024

Rule 26.1 - Statements of Witnesses.

(a)Production of Statements. If pre-trial discovery pursuant to Rule 16 has not occurred, after a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the State or the defendant and the defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement (as defined in subdivision (e)) of the witness that is in their possession or under their control, and that relates to the subject matter concerning which the witness has testified. If the entire contents of the statement relate to the subject matter of the testimony of the witness, the court shall order that the statement be delivered to the moving party. Upon delivery of the statement to the moving party, the court in its discretion, upon application of that party, may recess the proceedings for such time as it may determine to be reasonably required for the moving party to examine the statement and prepare to use it in the proceedings.

(b)Privileged or Unrelated Matter. If the other party claims that any statement ordered to be produced under this rule contains privileged information or matter that does not relate to the subject matter of the testimony of the witness, the court shall order that the statement be delivered to the court in camera. Upon inspection, the court shall excise the portions of the statement that are privileged or that do not relate to the subject matter of the testimony of the witness, and shall order that the statement, with such material excised , be delivered to the moving party. If any portion of a statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of the statement shall be preserved by the attorney for the State and, in the event the defendant appeals, shall be made available to the Supreme Court for the purpose of determining the correctness of the ruling of the trial court.

(c)Sanction for Failure to Produce Statement. If the other party elects not to comply with an order to deliver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the proceeding continue, or, if it is the attorney for the State who elects not to comply during a trial, shall declare a mistrial if required by the interest of justice.

(d)Production of Criminal Records. If pre-trial discovery pursuant to Rule 16 has not occurred, after a witness called by the State has testified on direct examination, the court shall, on motion of the defendant, order the attorney for the State to provide the defendant with a written statement of all criminal convictions of the witness that are known to the attorney for the State or are contained in the files of the Attorney General's Bureau of Criminal Identification.

(e)Statement Defined. The term "statement," as used in subdivisions (a), (b), and (c) of this rule, means the following:

(1) A written statement made by the witness that is signed or otherwise adopted or approved by the witness;

(2) A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording, or a transcription thereof; or

(3) A statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury.

(f)Scope of Rule. This rule applies at trial and at pre-trial hearings, such as suppression hearings, and post-trial proceedings, such as sentencing proceedings, hearings to revoke or modify probation, and other post-conviction proceedings.

R.I. Super. Ct. R. Crim. P. 26.1

As amended by the court on 7/1/2002; amended by Order dated June 22, 2017, effective 9/5/2017.

2002 Committee Notes

The proposed amendments expand the rule in two ways: the new rule applies to both prosecution and defense witnesses and it specifically applies to pre-trial and post-trial proceedings. As amended, the rule is more similar to Federal Rule of Criminal Procedure 26.2.

If the defendant chooses to institute discovery procedures under Rule 16, the materials available under Rule 26.1 are provided under Rule 16. Thereafter, the State may obtain statements of defense witnesses under Rule 16. Under such circumstances, Rule 26.1 is not needed. Rule 26.1 provides for the disclosure of prior statements and prior convictions of witnesses when discovery has not been sought, the proceeding occurs before discovery has been accomplished, or the witnesses at the proceeding will not or did not testify at trial.

The proposed amendments, in order to promote the concept of the trial as a search for truth, places the disclosure of prior relevant statements of a defense witness other than the defendant on the same footing as disclosure of prior statements of the State's witnesses, consistent with the reasoning of United States v. Nobles, 422 U.S. 225 (1975). The procedures for disclosure are identical for prosecution and defense witnesses, including subdivision (b), which directs the court, when a claim is made that disclosure is improper because the statement contains privileged or unrelated matter, to examine the statements in camera and excise matter that should not be disclosed. This safeguard enables a party who believes that a demand is being improperly made to secure a swift and just resolution of the issue.

Under subdivision (a), the motion for production of a statement may be made by "a party who did not call the witness." It requires disclosure of statements in the possession of the parties when the witness is called by a co-defendant or the court pursuant to the Rhode Island Rules of Evidence. The defendant is excluded from the reach of this rule when he or she testifies because of the likelihood that the attorney-client privilege will reach all conversations between defendant and defense counsel or his agents.

In subdivision (c), sanctions for refusal to comply with the court's disclosure order differ slightly when the defense refuses to produce a statement. If the State refuses to produce a statement when ordered to do so, the court is required to strike the witness's testimony unless in its discretion it determines that the more serious sanction of a mistrial is warranted. If a defendant refuses to comply with the court's disclosure order, the court's only alternative is to enter an order striking or precluding the testimony of the witness.

The definition of a statement under subdivision (e) has been expanded to include grand jury testimony given by the witness.

The proposed amendments also, in subdivision (f), make it clear that the rule applies to proceedings other than trial. Production of prior statements of witnesses enhances the ability of the court to assess the witnesses' credibility and assists the court in making accurate factual findings at pre-trial hearings, such as preliminary examinations and suppression hearings, and at post-trial proceedings, such as sentencing proceedings, hearings to revoke or modify probation, and other post-conviction proceedings. The witnesses at proceedings other than trial may not testify at trial, thus avoiding pre-trial discovery of prior statements of these witnesses under Rule 16. Non-trial proceedings, however, also depend on accurate and reliable information affecting the credibility of witnesses who present testimony. That need exists without regard to whether the witness is presenting testimony at a pre-trial hearing, at a trial, or at a post-trial proceeding.

1974 Notes

As noted in the principal memorandum accompanying proposed Rule 16, the materials available under existing Rule 26.1 would be available to a defendant during the pre-trial stage should he choose to institute discovery procedures. In such a circumstance, existing Rule 26.1 would be redundant. The proposed revision of Rule 26.1 contains two modifications in the rule to make it mesh with Rule 16 in the event the Court decides to retain Rule 26.1. A clause has been added to the first sentences of subdivisions (a) and (d) which makes this rule operative only "If there shall not have been pre-trial discovery pursuant to Rule 16,...." In all other respects the rule remains the same.

1972 Notes

This rule differs entirely from Federal Rule 26.1. The latter prescribes the manner by which the trial court shall determine the law of a foreign country. In conformity with the Rhode Island Rules of Civil Procedure, determination of foreign law will be governed by the Uniform Judicial Notice of Foreign Law Act which is in force in Rhode Island. G.L. 1956 (1969 Reenactment), §§ 9-19-2 through 9-19-8.

Rule 26.1, which is modeled upon the so-called Jencks Act, 18 U.S.C. § 3500, requires the State to make available to a defendant all relevant written or recorded statements of its witnesses after they have testified on direct examination. In addition, the rule requires the State to provide the defendant with a written statement of the witness' criminal convictions that are known to the prosecution or are on file in the Attorney General's Division of Criminal Identification. Although the General Laws do not contain any provisions similar to the proposed rule, it is customary in criminal trials in the Superior Court for the prosecution to provide defendants with statements and criminal records of prosecution witnesses after they have completed their direct testimony. Moreover, under the holding in State v. Bradshaw, 101 R.I. 233, 238-41, 221 A.2d 815, 818-20(1966), a defendant is entitled to inspect, prior to cross-examination, any statement used by a witness to refresh his recollection, even where such use occurred prior to trial.

Subdivision (c), which governs use of statements at trial, reflects the appropriate use of prior inconsistent statements at trial. See McCormick, Law of Evidence pp. 62-67(1954). It also accords with the view of the Rhode Island Supreme Court: "A basic purpose of cross-examination is to impeach the credibility of an adversary witness, and a court may within its sound judicial discretion permit interrogation designed to accomplish that purpose." Bedrosian v. O'Keefe, 100 R.I. 331, 334, 215 A.2d 423, 425 (1965). See also Atlantic Ref. Co. v. Director of Public Works, 102 R.I. 696, 233 A.2d 423 (1967).