RAY TAYLOR, PETITIONER V. STATE OF ILLINOIS No. 86-5963 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the Appellate Court of Illinois, First District Brief for the United States as Amicus Curiae Supporting Respondent TABLE OF CONTENTS Question presented Interest of the United States Statement Summary of Argument Argument: The Compulsory Process Clause does not prohibit a trial court in every case from precluding a defense witness from testifying as a sanction for a defense violation of a discovery requirement A. The Compulsory Process Clause forbids only arbitrary barriers to a defendant's right to offer a defense to the charges against him B. Reciprocal discovery statutes imposes a reasonable condition on the presentation of defense evidence C. Precluding a defense witness from testifying because of a discovery violation is not always an unreasonable or disproportionate sanction D. Preclusion was a permissible sanction in this case because the defense willfully violated its discovery requirements Conclusion QUESTION PRESENTED Whether the Compulsory Process Clause prohibits a trial court from excluding a defense witness as the sanction for a violation of a discovery obligation. INTEREST OF THE UNITED STATES The question in this case is whether the Compulsory Process Clause of the Sixth Amendment forbids the exclusion of a defense witness as a sanction for a deliberate violation of a discovery requirement. Several of the Federal Rules of Criminal Procedure impose reciprocal discovery obligations on the defense and authorize district courts to bar the testimony of defense witnesses as a sanction for violations of discovery requirements. See Fed. R. Crim. P. 12.1(d) (notice of alibi); Fed. R. Crim. P. 12.2 (notice of insanity defense); Fed. R. Crim. P. 16(d) (2) (general discovery obligations). The Court's resolution of the question presented in this case will apply to federal as well as state prosecutions, and will have a potentially significant effect on the administration of justice in the federal system. STATEMENT Following a jury trial in the Circuit Court of Cook County, Illinois, petitioner was convicted of attempted murder and was sentenced to ten years' imprisonment. The Appellate Court of Illinois affirmed his conviction. The Illinois Supreme Court denied him leave to appeal. 1. At approximately 8:30 p.m. on August 6, 1981, Jack Bridges, employed as an unarmed security guard at a liquor store, was standing in front of his sister's house talking to his sister, his brother, and some friends. While Bridges was standing outside the house, he saw Derrick Travis, a neighborhood youth, sitting on Bridges' car. Bridges told Travis to get off the car. When Travis swore at him, Bridges slapped Travis. R. 132-135, 234-235. Petitioner, who had been in a playground across the street, approached Bridges and told him he should not have slapped Travis. Joined by several companions, petitioner then argued for 20 minutes with Bridges. No weapons were displayed during the argument, which was broken up by a neighbor. R. 135-137, 235-236, 253. Petitioner and his friends returned to the playground, and Bridges drove away in his car (R. 137-138, 170-172). Bridges returned to his sister's house an hour later. He hid his automobile at a nearby location after his brother Maurice Bethany said that petitioner and his companions had threatened to damage it. R. 139-141, 173-174, 238. After parking his car, Bridges heard petitioner and his companions -- including Derrick Travis -- ask where Bridges had gone. Bridges responded, "'I'm over here. Come over here.'" Some members of petitioner's group then obtained sticks and pipes from an automobile. When they approached, Bridges told Travis that he wanted to apologize for slapping him. R. 142-144, 175-179, 240, 257-258. One of petitioner's companions then swung at Bridges. Bethany in turn swung at one of petitioner's friends, and petitioner then fired a gun at Bethany. The shot missed, and members of petitioner's group began beating Bridges with sticks (R. 145, 180, 241, 259). Bridges ran and a group of six young men pursued him. When petitioner was approximately five feet from Bridges, he fired four shots from his gun, hitting Bridges in the back with the last shot. Bridges fell to the ground; petitioner pointed the gun at Bridges' head and pulled the trigger, but the gun misfired. Bridges then heard petitioner say, "'He's dead.'" R. 146-147, 155, 157, 164, 181-184, 242-243, 260. When the police later arrived, Bridges identified petitioner as the man who had shot him (R. 148, 270). Two sisters, Hatti and Regina Allgood, friends of petitioners, testified as the only defense witnesses. They said that they saw a group of men, including petitioner, approach Bridges with sticks and that Bridges was wounded when Bethany, his brother, fired shots into a crowd during the altercation (J.A. 36; R. 282-284, 292, 295-298, 305, 311-316). The sisters had never previously told that story to the police, even though they knew that the police were looking for petitioner the day after the incident (R. 299-300, 319-321). /1/ 2. Illinois statutes and rules permit the prosecution and defense in a criminal case to file a discovery motion requesting the other party to list before trial the names and last known addresses of the persons it intends to call as witnesses. See Ill. Ann. Stat. ch. 110A, paras. 412, 413 (Smith-Hurd 1985); Ill. Sup. Ct. R. 413(c) and (d), and 415(b). These provisions also authorize the trial court to impose sanctions for violations and require that the defendant give the State written notice of any defense he intends to assert. The statute provides that if either party fails to comply with a discovery request, the court may grant a continuance, exclude the affected evidence, or enter such other order as the court deems just under the circumstances. Under state law, the appropriate sanction rests in the discretion of the trial court (Br. in Opp. 4-5). Before trial, on July 14, 1983, the State filed a discovery request, asking the trial court to direct the defense to reveal the names and last known addresses of persons that petitioner intended to call as witnesses, and to give notice of his defense (J.A. 4-5). On November 10, 1983, petitioner filed an answer and subsequently filed an amended answer (J.A. 1). Petitioner stated that he would assert a non-affirmative defense. Originally, he listed the two sisters -- Hattie and Regina Allgood -- as well as two other witnesses. Subsequently, he added Derrick Travis as a witnesses (J.A. 8). The State also listed its witnesses (Pet. Br. 3). Trial commenced on March 26, 1984. In petitioner's opening statement, his attorney claimed that while petitioner was involved in an altercation and a person was shot, petitioner did not have a gun, and the charge of attempted murder was far-fetched (R. 130-132). Defense counsel did not indicate that he would show that Bethany was responsible for Bridges' wound, nor did he suggest that anyone saw Bridges or any friend or relative of his with a gun. At trial, the State called five witnesses: the victim Jack Bridges, his brother Maurice Bethany, his sister Jacqueline Jones, his friend Charles Trotter, and police officer Jon Davis. Following the testimony of Bridges and Bethany, defense counsel informed the court that he had learned during their testimony of additional witnesses who had seen the entire incident. Defense counsel then sought leave to amend the witness list that he previously submitted by adding the names of Alfred Wormley and Jan Berkhalter (J.A. 12). Defense counsel related that petitioner had told him about Wormley some time previously, but that counsel had not been able to locate Wormley. The court responded that the witness could have been listed with his address unknown. The court also questioned why the names had not been added earlier, stating that "this * * * is not the type of case where the defendant would not know about witnesses. * * * The defendant is at the scene. We have a prior trial, apparently, in this matter. His buddies and cohorts are on trial in that case. * * * When you bring up these witnesses at the very last moment, there's always the allegation and the thought process that witnesses are being found that really weren't there * * * " (J.A. 13). The court then ordered that the witnesses be produced the following day to determine whether they would be allowed to testify (J.A. 14). The next day, the defense produced Alfred Wormley, one of the two new witnesses. The prosecutor pointed out that defense counsel had waited until after the prosecution had put on its main witnesses before he sought to add the two new names to the witness list (J.A. 15). The court stated that defense counsel's failure to comply with the discovery rules was "inexcusable and I have had, for the record, so many violations of discovery rules by the defense in the last few trials that it is unbelievable" (J.A. 16-17). The court then instructed defense counsel to have Wormley, the witness who was present, testify out of the presence of the jury as an offer of proof (J.A. 17). Wormley testified that he was on the front porch at the home of Bridges' sister during the incident and saw Bridges hand Donna Kerr, his girlfriend at the time, two pistols wrapped in a blanket (J.A. 18-19, 23-24). Wormley claimed that he heard Bridges and his relatives say "they were after (petitioner) and the other people" (J.A. 19), and that he subsequently warned petitioner and his friends to watch out for weapons (J.A. 19, 24). He also said that he had recently moved back into the neighborhood, and that defense counsel had subpoenaed him by coming to his house a week before the trial (J.A. 21). The State objected to Wormley's testimony on the ground that defense counsel had violated the discovery rules by lying when he claimed that he did not know Wormley's address. Defense counsel responded that the omission of Wormley's name was an oversight on his part, and that he had found ten people who said they had seen the incident but that only two were willing to appear. He argued that Wormley should be allowed to testify although he did not see the shooting incident (J.A. 25-27). The court refused to allow Wormley to testify because it found that there had been "a blat(a)nt violation of the discovery rules, willful violation of the rules" (J.A. 28). The court explained that defense attorneys had violated discovery rules in recent cases and that "I am going to put a stop to it and this is one way to do so" (ibid.). The trial judge also said that he had "a great deal of doubt * * * as to the veracity" of the witness and that he did not "think that any attorney should violate any orders purposely for any defendant to get an edge for him" (ibid.). 3. Petitioner was convicted, and the Appellate Court of Illinois affirmed (J.A. 34-42). It ruled that the trial court did not abuse its discretion in refusing to allow Wormley to testify (id. at 39). The court pointed out that "(d)efense counsel had the opportunity to list the names of witnesses in his answer to discovery and, if necessary, indicate that their addresses were unknown" (ibid.). The Illinois Supreme Court denied leave to appeal (id. at 43). SUMMARY OF ARGUMENT The Compulsory Process Clause plays a limited role in regulating the rules of procedure and evidence in criminal trials. It prohibits only the application of "arbitrary" rules that needlessly burden a defendant's opportunity to present a defense. The issue in this case is whether the Compulsory Process Clause prohibits a court from ever barring a defense witness from testifying because of the violation of a reciprocal discovery obligation. Reciprocal discovery requirements are a reasonable regulation of the trial process and are premised on the belief that a system of mutual discovery will enhance the adversary process. The requirement that defense witnesses be disclosed to the prosecution before trial is a reasonable condition on the presentation of defense evidence, and it does not prevent a defendant from presenting his defense. The failure to comply with a discovery requirement may mislead the other party and may give the offending party an unfair advantage. A default is therefore properly subject to sanctions. Barring a defense witness from testifying is a severe sanction, but it is a necessary one in some cases, because lesser penalties may not be effective at preventing perjury or encouraging compliance. Nor is barring a defense witness unconstitutional. The court approved a preclusion sanction in United States v. Nobles, 422 U.S. 225 (1975), over a Compulsory Process Clause objection, on the ground that preclusion was consistent with the dictates of the adversary process. Although preclusion is a permissible remedy in some instances, it is not appropriate in every case. The appropriateness of a preclusion order turns on a variety of factors, such as the culpability of the defense, the prejudice to the government, and the efficacy of lesser sanctions. Moreover, there are two additional safeguards to ensure than an innocent person is not convicted as a result of a discovery sanction. First, if a discovery violation is entirely the fault of defense counsel, a defendant can attempt to show that his conviction resulted from constitutionally ineffective assistance on the part of his counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Second, in an extraordinary case where preclusion would probably result in the conviction of a person who is actually innocent, preclusion should not be used. See Murray v. Carrier, No. 84-1554 (June 26, 1986), slip op. 15. ARGUMENT THE COMPULSORY PROCESS CLAUSE DOES NOT PROHIBIT A TRIAL COURT IN EVERY CASE FROM PRECLUDING A DEFENSE WITNESS FROM TESTIFYING AS A SANCTION FOR A DEFENSE VIOLATION OF A DISCOVERY REQUIREMENT The trial court prohibited Alfred Wormley from testifying because of petitioner's willful violation of a discovery requirement. Petitioner contends that the trial court's ruling violated the Compulsory Process Clause of the Sixth Amendment. That Clause, he claims, prohibits a trial court from ever barring a defense witness from testifying as a penalty for a discovery violation. /2/ Petitioner argues that barring a defense witness from taking the stand will inevitably distort the factfinding process and may lead to an unjust conviction; that there are other, less drastic penalties available to a trial judge to enforce a defendant's discovery obligations; and that preclusion unfairly punishes an accused for his attorney's wrong. Preclusion, he claims, is therefore an unduly harsh and unconstitutional penalty. In our view, petitioner has misread this Court's Compulsory Process Clause decisions and has overstated the capacity of other sanctions to police the discovery process. The Compulsory Process Clause does not forbid the government from making timely compliance with a reciprocal discovery rule a proper condition for the presentation of defense evidence, and it does not forbid a trial court from ever enforcing defense compliance by excluding material evidence. More specifically, preclusion is not an impermissible sanction for a willful violation of a discovery rule, such as the one that occurred in this case. Accordingly, petitioner was not unconstitutionally denied the right to present a defense because the trial court did not allow Wormley to take the stand. /3/ A. The Compulsory Process Clause Forbids Only Arbitrary Barriers To A Defendant's Right To Offer A Defense To The Charges Against Him Petitioner contends (Br. 15) that the Compulsory Process Clause guarantees the defendant the right to present a defense at trial. That right, he claims, is violated by excluding a defense witness, since less drastic sanctions are available. The premise of that argument, however, is overbroad. The Compulsory Process Clause does ensure the accused the right to offer a defense at trial, but it does so primarily, as its text indicates, by enabling him to compel witnesses to be present. U.S. Const. Amend. VI ("In all criminal prosecutions, the accused shall enjoy the right * * * to have compulsory process for obtaining witnesses in his favor."); see Blackmer v. United States, 284 U.S. 421, 442 (1932) (referring to the right to subpoena defense witnesses). /4/ A subsidiary feature of the Clause is that it prohibits the application of arbitrary procedural or evidentiary rules preventing a defendant from offering relevant evidence at trial to support his defense. Rock v. Arkansas, No. 86-130 (June 22, 1987); Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14 (1967); see also Webb v. Texas, 409 U.S. 95 (1972). /5/ But the role that the Clause plays in this regard is considerably more modest than petitioner suggests. The Court's decisions in Washington, Chambers, and Rock did not significantly curtail the freedom of legislatures and courts to devise rules governing criminal trials. Crucial to the Court's decision in each case was the determination that the particular restriction at issue was an "arbitrary" limitation on the defendant's opportunity to present relevant evidence. Washington v. Texas held invalid an evidentiary rule prohibiting the defendant (but not the prosecution) from introducing an accomplice's testimony, on the ground that the rule "arbitrarily" denied the defendant the right to present relevant evidence. 388 U.S. at 23. Similarly, Chambers v. Mississippi found invalid the combined application of a voucher rule, under which a defendant was bound by the direct testimony of any defense witness, and the state's hearsay rule, which "mechanistically" excluded testimony that bore assurances of trustworthiness and was corroborated by other evidence. 410 U.S. at 296, 302. Finally, Rock v. Arkansas ruled that a state may not adopt a per se rule prohibiting a defendant from offering his own hypnotically refreshed testimony. The Court explained that, absent clear proof that all hypnotically refreshed testimony is too unreliable to allow before the jury, a per se rule "arbitrarily" restricts a defendant's opportunity to offer potentially exculpatory testimony that could be proved reliable in his own case. Slip op. 17. In each case, therefore, the rule at issue arbitrarily denied a defendant the opportunity to offer exculpatory evidence, and the Court's ruling was limited to restrictions of that type. Rock v. Arkansas, slip op. 11; see also Wardius v. Oregon, 412 U.S. 470, 474 n.6 (1973) ("(t)his Court has * * * been particularly suspicious of state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant's ability to secure a fair trial," citing Washington v. Texas, supra). That characterization will not apply to most procedural and evidentiary rules governing the trial process, because most such rules further the same purpose as the Compulsory Process Clause: i.e., they enable "the jury (to) decide where the truth lies" (Washington v. Texas, 388 U.S. at 19). See Fed. R. Crim. P. 2; Fed. R. Evid. 201. Reasonable limitations on the presentation of defense evidence -- restrictions that enable the trier of fact rationally to decide the charges against a defendant without needlessly burdening his opportunity to establish his innocence -- therefore are no concern of the Sixth Amendment. See Rock v. Arkansas, slip op. 11 ("restrictions of a defendant's right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve"). /6/ Put another way, the Compulsory Process Clause does not guarantee the defendant an absolute right to call or question a witness irrespective of the constraints established by fair and rational rules of criminal procedure and evidence. B. Reciprocal Discovery Statutes Impose A Reasonable Condition On The Presentation of Defense Evidence Unlike the procedural and evidentiary rules considered in Washington, Chambers, and Rock, reciprocal discovery rules are reasonable conditions on the presentation of defense evidence. Reciprocal discovery rules, like the Illinois statute at issue here, are based on the principle that a system of complementary disclosure will reduce the possibility of surprise at trial and enhance the fairness and accuracy of the verdict by enabling each party to investigate the other's proof. See, e.g., Wardius v. Oregon, 412 U.S. at 473-474; Williams v. Florida, 399 U.S. 78, 81 (1970). Reciprocal discovery rules are also constitutional despite their requirement that the accused disclose his hand before trial. In Williams v. Florida, the Court ruled that a statute requiring the defendant to notify the prosecution of his intent to raise an alibi defense and to identify his supporting witnesses does not violate the Due Process Clause. The Court explained that, "(g)iven the ease with which an alibi can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. * * * The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played." 399 U.S. at 81-82 (footnote omitted). Wardius v. Oregon, which also involved a notice-of-alibi statute, reaffirmed Williams, stating that "nothing in the Due Process Clause precludes States from experimenting with systems of broad discovery" (412 U.S. at 474), as long as discovery is a two-way street (id. at 474-476). In fact, the Court described reciprocal discovery rules as "a salutary development which * * * enhances the fairness of the adversary system" (id. at 474). Williams and Wardius involved notice-of-alibi statutes, but the reasoning there is equally applicable to general reciprocal discovery statutes. A statute like the one involved here, which requires each party to provide the other before trial with a list of witnesses, is designed to reduce surprise, discourage perjury, enhance the accuracy of the verdict, and avoid the delay resulting from the need during trial to grant one party a continuance. /7/ Moreover, reciprocal discovery rules share a family resemblance to contemporaneous-objection requirements: both types of rules impose procedural restrictions on the manner in which defense claims are raised. These restrictions are designed to ensure the fair and orderly consideration of those claims by the court or the trier of fact, or, put conversely, to prevent "sandbagging" by the defense. Compare Wardius v. Oregon, 412 U.S. at 473-474, and Williams v. Florida, 399 U.S. at 81-82, with Murray v. Carrier, No. 84-1554 (June 26, 1986); Engle v. Isaac, 456 U.S. 107 (1982); and Wainwright v. Sykes, 433 U.S. 72 (1977). Requiring the defendant to disclose his witnesses before trial is not onerous; all that a defendant must do is to identify his witnesses at an earlier rather than a later phase of the proceedings. Cf. Williams v. Florida, 399 U.S. at 83-86. The Illinois procedure is not significantly more burdensome than the ordinary practice of issuing a subpoena on a witness before the trial commences. /8/ A state therefore may validly conclude that a general reciprocal discovery statute is a reasonable condition on the presentation of defense evidence and enables the criminal trial process better to adjudicate the factual question of the defendant's guilt or innocence. See, e.g., State v. Boucino, 199 Conn. 207, 506 A.2d 125, 130 (1986); Taliaferro v. State, 295 Md. 376, 389, 456 A.2d 29, 36, cert. denied, 461 U.S. 948 (1983) (collecting cases). C. Precluding A Defense Witness From Testifying Because Of A Discovery Violation Is Not Always An Unreasonable Or Disproportionate Sanction Petitioner argues (Br. 15-20) that a preclusion sanction is unduly harsh because other, less drastic penalties are available and equally effective, such as stiff disciplinary actions against an offending lawyer. To be sure, preclusion is a harsh remedy, and it would be unreasonable one in many cases. "Few rights are more fundamental than that of an accused to present witnesses in his own defense" (Chambers v. Mississippi, 410 U.S. at 302), and the preclusion sanction directly affects that right. Recognizing the importance of the interests at stake, most state and federal courts have applied a balancing test to determine whether preclusion is appropriate in a particular case. /9/ Petitioner's argument therefore might have merit if a statute required a witness to be barred from testifying in every case. But that is not the case here, because the Illinois statute only authorizes preclusion, and does not require it. /10/ Accordingly, the question is whether preclusion is ever a permissible sanction for a defense violation of a discovery requirement, regardless of the circumstances. We believe that in some cases preclusion will be the only effective remedy for a discovery violation. While preclusion is a severe remedy and should not always be imposed, it is sometimes a necessary penalty and should be a permissible one. /11/ 1. In some cases preclusion is necessary to ensure that a discovery sanction is not toothless. /12/ For example, granting the prosecution a continuance to question or investigate a newly-identified witness is no sanction at all, since the prosecution always could have sought a continuance absent a reciprocal discovery requirement if unexpected evidence had surfaced at trial. Limiting the prosecution to seeking a continuance thus would have no deterrent effect on defense violations of discovery obligations. Moreover, forcing the prosecution to obtain a continuance can often work to the advantage of the defense by disrupting the trial. Denying a defendant additional discovery may also be no penalty at all, because the violation may not come to light until the prosecution has already introduced or disclosed most or all of its evidence, as occurred in this case. Finally, the risk of being held in contempt will be no threat to a defendant facing a lengthy period of incarceration on the principal charge against him. See Illinois v. Allen, 397 U.S. 337, 345 (1970). Petitioner favors imposing a penalty on defense counsel, but there is no guarantee that that approach will always be successful. A lawyer looking for a victory in an important case may consider the possibility of disciplinary action to be remote and may take the risk of receiving a small fine for contempt. Moreover, contempt will not suffice -- and usually will not even be appropriate -- where it is the defendant's fault that a witness's identity was deliberately withheld. The threat of contempt against defense counsel will do little or nothing to discourage a defendant from identifying a known witness only after trial has begun, and in that event the prospect of a contempt sanction may create a conflict of interest between the attorney and his client. Even if referring defense counsel to the disciplinary committee of the local bar deters some attorneys from violating discovery rules, that remedy will not ensure that a particular witness testifies truthfully. Where the belated identification of a witness bears the earmarks of a defense fabricated to meet the prosecution's evidence -- as the trial judge found to be the case here -- a contempt sanction does little or nothing to ensure the fairness of a particular proceeding or the accuracy of a particular verdict. Nor is it true that preclusion necessarily punishes the defendant for his attorney's error. Normally, the requirement that a defendant provide a witness list is triggered by a request from the prosecution. At that point, defense counsel will confer with his client about the list. Defense counsel will ordinarily rely on the accused to identify relevant witnesses. See Strickland v. Washington, 466 U.S. 668, 691 (1984). If the defendant is not in custody, counsel will rely on the defendant to help locate them. Defense counsel will also often explain the importance of listing all witnesses in order to comply with the statute or rule. The blame for failing to list a witness may therefore often be laid at the defendant's doorstep. The importance of having preclusion as an available sanction is evidenced by the fact that most states and the federal government authorize preclusion for a violation of alibi disclosure requirements. E.g., Fed. R. Crim. P. 12.1(d). /13/ Indeed, in many states preclusion is the sole remedy for alibi disclosure violations. /14/ The legislative judgment that preclusion is sometimes necessary is also reasonable. As this Court explained in National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976) (upholding dismissal of the plaintiff's complaint under Fed. R. Civ. P. 37 for discovery violations made in bad faith), "here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent." This Court has also recognized that a preclusion remedy is not invariably inconsistent with the Sixth Amendment. In United States v. Nobles, 422 U.S. 225 (1975), the Court upheld a trial court's order excluding a defense investigator's testimony after defense counsel had refused to disclose his report to the government. The Court pointed out that "(t)he Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth." 422 U.S. at 241. Moreover, the Court was unwilling to render hollow the requirement that the defendant disclose the investigator's report to the government by allowing his violation to go unremedied. "Deciding, as we do, that it was within the court's discretion to assure that the jury would hear the full testimony of the investigator rather than a truncated portion favorable to respondent, we think it would be artificial indeed to deprive the court of the power to effectuate that judgment" (ibid.). In Nobles, nondisclosure would have hampered the prosecutor's ability to cross-examine a defense witness. A defendant's failure to disclose the names of his witnesses before trial may have a similar effect, because depriving the government of the opportunity to investigate the witnesses will often impair the effectiveness of the prosecution's cross-examination. In both cases, the existence of a preclusion sanction does not interfere with the defendant's right to present a defense. The defendant has an unimpeded right to offer evidence, as long as he complies with reasonable discovery rules applicable to that evidence. The fact that relevant defense evidence may be excluded is neither unusual nor fundamentally unfair. The Court has recognized that defense evidence can be excluded or lost in a variety of other settings without violating the Constitution. For example, in the case of a violation of a sequestration order by a defense witness, the court has the discretion to remedy the violation by precluding the witness from testifying. See Holder v. United States, 150 U.S. 91 (1893); see also Rowan v. Owens, 752 F.2d 1186, 1191 (7th Cir. 1984); United States v. McClure, 734 F.2d 484, 495 (10th Cir. 1984); United States v. Gibson, 675 F.2d 825, 835-836 (6th Cir.), cert. denied, 459 U.S. 972 (1982). Compare Dutton v. Brown, 812 F.2d 593, 599-602 (10th Cir. 1987) (en banc) (exclusion at the sentencing stage of a capital case found improper). Similarly, the denial of a defense request for a continuance may prevent a defendant from presenting evidence, but not every denial of a continuance "violates due process even if the party fails to offer evidence or is compelled to defend without counsel." Ungar v. Sarafite, 376 U.S. 575, 589 (1964); see also Isaacs v. United States, 159 U.S. 487, 489 (1895); Crumpton v. United States, 138 U.S. 361, 364-365 (1891). Another such example is provided by the case of potential defense witnesses who are excused from testifying because of their assertion of the privilege against compulsory self-incrimination. Except in unusual cases, the courts have held that a defendant has no Sixth Amendment right to demand that the witness be given immunity so that he can testify. Cf. Pillsbury Co. v. Conboy, 459 U.S. 248, 261-262 (1983). /15/ Finally, preindictment delay by the prosecution may result in the prejudicial loss of evidence to the defense, but the Court has held that no constitutional violation is established unless the government has manipulated the delay to gain a tactical advantage at trial. United States v. Lovasco, 431 U.S. 783, 795 & n.17 (1977); United States v. Marion, 404 U.S. 307, 324 (1971). In sum, although preclusion is a severe remedy, the countervailing considerations are insufficient to justify an absolute ban on its use. The other remedies that petitioner proposes may not discourage violations of the discovery rule, and an absolute ban on preclusion could make a nullity out of reciprocal discovery. The policy question whether preclusion should be an available penalty should be left to Congress and the state legislatures, who should be free to conclude for criminal cases, as this Court determined in the National Hockey League case for civil litigation, that a severe remedy is sometimes necessary to enforce a defendant's discovery obligations. 2. A balancing test is appropriate in a particular case to determine what penalty, if any, should be imposed for a violation of a discovery rule. A flagrant violation, for example, differs from a technical or negligent one, and should be treated differently. The trial court should therefore consider a variety of factors in deciding upon the proper sanction, such as the nature of the violation (i.e., whether it was technical or in bad faith); the timing of the disclosure (i.e., whether the disclosure was untimely but in advance of trial, or whether it occurred well into trial); the dilligence shown by the defense to uncover the witness before trial; the strength of each party's case; the identity of the person to be barred; /16/ the prejudice suffered by the prosecution; and the extent to which alternative penalties can remedy the violation. After considering these factors, the court should weigh the need for exclusion against the defendant's opportunity to present a defense and should attempt to tailor the remedy to the wrong. /17/ If the court's assessment of the competing interests is seriously flawed, the use of preclusion as a remedy can result in a constitutional violation. That approach is consistent with the decisions of the federal courts applying the Jencks Act, 18 U.S.C. 3500. The sanctions provision of the Jencks Act, 18 U.S.C. 3500(d), authorizes the courts to strike the testimony of a government witness if the government fails to provide the accused with a statement made by the witness relating to the subject matter of his testimony. The courts of appeals have uniformly concluded that, absent a deliberate refusal by the government to disclose a witness's statement, a trial court is not required to strike the testimony of a witness whose statement has not been turned over to the defense. Rather, trial courts have the discretion to formulate an appropriate remedy and should consider both the government's culpability and the extent to which the defendant has been prejudiced. /18/ Thus, just as the federal courts have been reluctant to preclude a government witness because of a Jencks Act violation, a lesser remedy than preclusion will often be appropriate as a sanction for a defendant's discovery violation. /19/ There are two important practical considerations to guide the foregoing general principles. First, in selecting an appropriate remedy, a trial court should be entitled to consider whether a newly-identified witness is credible. The inquiry in this context is similar to the determination whether a defendant is entitled to a new trial on the basis of newly-discovered evidence, where a court has the authority to assess the credibility of the new evidence. See, e.g., United States v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980). Moreover, given the ease of fabricating an alibi defense (Williams v. Florida, 399 U.S. at 81), a court should be entitled to determine whether a newly-disclosed alibi witness is likely to offer perjured testimony. In some cases, this consideration is likely to help the defendant: if a trial court determines that the defense meets the standard for obtaining a new trial on the basis of newly-discovered evidence (see United States v. Agurs, 427 U.S. 97, 111 (1976)), that conclusion militates in favor of permitting the accused to introduce the witness. Second, a trial court need not interrupt a trial to hold an evidentiary proceeding to determine whether the defendant, his lawyer, or both are responsible for the violation. Rather, the court is entitled to presume that defense counsel was competent (see Strickland v. Washington, 466 U.S. at 690) and discussed the defense discovery requirements with his client. Thus, a discovery violation ordinarily can be charged to the accused. See Murray v. Carrier, slip op. 7. /20/ At the same time, there are additional safeguards to ensure that an innocent person is not convicted. A defendant can always attempt to show that the violation was attributable to his attorney's carelessness, for instance, and that counsel was constitutionally ineffective. See Strickland v. Washington, supra. Moreover, a witness should not be barred from testifying if his exclusion would result in a miscarriage of justice. Accordingly, in an extraordinary case, where the court concludes that preclusion would probably result in the conviction of a person who is actually innocent, a preclusion sanction should not be used, even if the other criteria would support the exclusion of the defense witness. In such a case the use of the preclusion sanction would be an error of constitutional dimension. See Murray v. Carrier, slip op. 15. D. Preclusion Was A Permissible Sanction In This Case Because The Defense Willfully Violated Its Discovery Requirements In this case, it is clear that Wormley was deliberately excluded from the witness list, and the trial court so found (J.A. 28). The trial court determined that "this is a blat(a)nt violation of the discovery rules, (a) willful violation of the rules," done for the "purpos(e) (of) * * * get(ting) an edge for (petitioner)" (ibid.). The discovery violation was aggravated when defense counsel did not mention Wormley or his expected testimony in his opening statement, and when he postponed disclosure of Wormley's name until the State had already presented its two most important witnesses. Those facts alone would be sufficient to sustain the trial court's preclusion ruling, because they manifest a clear design on the part of defense counsel to flout the discovery rules in an effort to gain a tactical advantage for petitioner. But there is more. Wormley was not an eyewitness to the fracas or the shooting. Although he stated that he saw Bridges hand a blanket containing two guns to his then-girl friend, Wormley's testimony was not directly exculpatory, and in any event the trial court expressed grave doubts about the credibility of Wormley's story (J.A. 28). This case was therefore not one in which the exclusion of a defense witness resulted in the conviction of a person who was probably innocent. Finally, petitioner failed to demonstrate to the district court that preclusion was an inappropriate remedy. While the court mentioned that disciplinary proceedings against defense counsel might be appropriate, petitioner did not suggest to the trial court that preclusion was excessive to the point of being unconstitutional, nor did he suggest an alternative sanction that would have given effect to the discovery requirement. Under these circumstances, the Compulsory Process Clause was not violated, because the trial court fairly exercised its discretion in excluding a witness who had been deliberately omitted from the witness list, and whose exclusion, in the court's view, would not lead to a miscarriage of justice in the case. CONCLUSION The judgment of the Appellate Court of Illinois, First District, should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General PAUL J. LARKIN, JR. Assistant to the Solicitor General SIDNEY M. GLAZER Attorney JULY 1987 /1/ Bridges was unarmed during the fight, and the evidence showed that neither he nor Bethany owned a gun (R. 152, 155, 162, 193, 196-197, 246). Both Bridges and Bethany denied that Bethany fired the shot that hit Bridges (R. 157, 193). /2/ In our view, that claim is not properly before the Court, for several reasons. First, petitioner did not raise a Compulsory Process Clause challenge at trial. He did not invoke that Clause (or any other provision of the Constitution) during the midtrial hearing (R. 205-231), and his post-trial motion for a new trial merely alleged that "(t)he Court erred by not letting a witness for defendant testify before the Jury" (R. 412). Second, petitioner did not preserve his claim on appeal. On appeal to the Illinois appellate court, petitioner stated that the issue was "(w)hether the exclusion of a material defense witness as a sanction for a discovery violation was an abuse of discretion and a denial of due process of law" (Appellant's Br. 7; see id. at 28-32); he did not mention either the Compulsory Process Clause or the Sixth Amendment. A claim that a trial court has abused its discretion is not equivalent to a claim that the Compulsory Process Clause has been violated. See United States v. White, 583 F.2d 899, 901 n.3 (6th Cir. 1978); United States v. Fitts, 576 F.2d 837, 839 (10th Cir. 1978); United States v. Barron, 575 F.2d 752, 757 & n.5 (9th Cir. 1978). Moreover, the Illinois appellate court did not view petitioner's claim as resting on the Sixth Amendment; it believed that petitioner's claim was "that the trial court abused its discretion by excluding the testimony of a defense witness as a sanction for a violation of the discovery rules" (J.A. 38). Not until petitioner submitted a rehearing petition to that court did he refer to the Compulsory Process Clause, and his rehearing petition (at 1) made only the following oblique reference: "'(f)ew rights are more fundamental than that of an accused to present witnesses in his own defense.' Chambers v. Mississippi, 410 U.S. 284, 302 (1973); U.S. Const., Amends. VI, XIV." Even if this passing reference were sufficient to have squarely presented the issue to the state courts (but see Board of Directors of Rotary Int'l v. Rotary Club, No. 86-421 (May 4, 1987), slip op. 11), the Illinois court of appeal denied the petition for rehearing without opinion. In these circumstances, petitioner has failed to preserve his Compulsory Process claim. Rotary Club, slip op. 11-12; Hill v. California, 401 U.S. 797, 805-806 (1971); Cardinale v. Louisiana, 394 U.S. 437, 438 (1969); see also Buchanan v. Kentucky, No. 85-5348 (June 24, 1987), slip op. 1 n.1. /3/ State courts have ruled that a preclusion sanction is not a per se violation of the Sixth Amendment. See, e.g., State v. Boucino, 199 Conn. 207, 506 A.2d 125, 130 (1986); Hartman v. State, 176 Ind. App. 375, 383-384, 376 N.E.2d 100, 105 (1978); State v. Roberts, 226 Kan. 740, 744, 602 P.2d 1355, 1358 (1979); Commonwealth v. Edgerly, 372 Mass. 337, 343, 361 N.E.2d 1289, 1292-1293 (1977); Taliaferro v. State, 295 Md. 376, 389, 456 A.2d 29, 36, cert. denied, 461 U.S. 948 (1983); State v. Smith, 88 N.M. 541, 543, 543 P.2d 834, 836 (Ct. App. 1975); State v. Flohr, 301 N.W.2d 367, 371-372 (N.D. 1980); State v. Smith, 17 Ohio St. 3d 98, 104, 477 N.E.2d 1128, 1133 (1985); State ex rel. Simos v. Burke, 41 Wis. 2d 129, 139-140, 163 N.W.2d 177, 182 (1968); cf. State v. Dodd, 101 Ariz. 234, 237, 418 P.2d 571, 574 (1966) (same conclusion under parallel state constitutional provision). The federal courts have not developed a uniform position on this subject. Several federal courts have found that preclusion was not an abuse of discretion in a particular case, but have not specifically addressed the constitutional challenge to the remedy. United States v. White, 583 F.2d 899, 901-902 (6th Cir. 1978); United States v. Fitts, 576 F.2d 837, 839 (10th Cir. 1978); United States v. Barron 575 F.2d 752, 757-758 (9th Cir. 1978); see also United States v. Smith, 524 F.2d 1288, 1291 (D.C. Cir. 1975) (preclusion harmless). The Tenth Circuit has expressly upheld the constitionality of a state statute that imposes a sanction prohibiting the defendant from testifying. Rider v. Crouse, 357 F.2d 317 (1966). Several district courts have also expressly rejected a per se rule. Escalera v. Coombe, 652 F. Supp. 1316, 1323 (E.D.N.Y. 1987); Braunskill v. Hilton, 629 F. Supp. 511, 522-523 (D.N.J. 1986), appeal pending, No. 86-5204 (3d Cir.). The Second and Seventh Circuits have followed a balancing approach in determining whether preclusion is permissible, Ronson v. Commissioner of Correction, 604 F.2d 176 (2d Cir. 1979); United States ex rel. Enoch v. Hartigan, 768 F.2d 161 (7th Cir. 1985), cert. denied, No. 85-539 (Mar. 3, 1986), although the Seventh Circuit has ruled that the defendant, at least, cannot be precluded from testifying because of a discovery violation, Alicea v. Gagnon, 675 F.2d 913 (1982). The Ninth Circuit has declined to endorse either a per se rule or a balancing approach. Fendler v. Goldsmith, 728 F.2d 1181 (1984). By contrast, the Fifth Circuit has ruled that preclusion is never permissible for any witness. United States v. Davis, 639 F.2d 239 (1981). /4/ The brief history surrounding the adoption of the Clause is set forth in Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 73, 95-101 (1974). This Court did not rely on the Clause to strike down a procedural or evidentiary restriction on a defendant's opportunity to present evidence until the 1967 decision in Washington v. Texas, supra, even though the Court had addressed such issues well before then. E.g., Rosen v. United States, 245 U.S. 467 (1918) (abandoning the federal common law rule that a defendant is incompetent to testify at his own trial). /5/ Although the Court's ruling in Chambers v. Mississippi was based on the Due Process Clause, rather than the Compulsory Process Clause (410 U.S. at 302-303), the Court has treated the decision there as if had rested on the latter. See Rock v. Arkansas, slip op. 10-11. /6/ Rock v. Arkansas, slip op. 11-12 & n.11; Chambers v. Mississippi, 410 U.S. at 302; Washington v. Texas, 388 U.S. at 23 n.21; see also Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983). /7/ Compare Wardius v. Oregon, 412 U.S. at 474; Williams v. Florida, 399 U.S. at 81-82; Epstein, Advance Notice of Alibi, 55 J. Crim. L. Criminology & Police Sci. 29, 31-32 (1964); Millar, The Modernization of Criminal Procedure, 11 J. Crim. L. & Criminology 344, 350 (1920); Williams, Advance Notice of the Defense, 1959 Crim. L. Rev. 548, 549. In some states, the parties may depose the witnesses and thereby obtain a preview of their expected trial testimony. See Williams v. Florida, 399 U.S. at 83. /8/ Indeed, requiring a defendant to list a witness is far less burdensome than the showing that a defendant must make to obtain the testimony of witnesses in various circumstances. For example, an indigent defendant must make a satisfactory showing that the witness is necessary for his defense before he can compel the government to shoulder the cost of subpoenaeing the witness. Fed. R. Crim. P. 17(b); United States v. Valenzuela-Bernal, 458 U.S. 858, 867 n.7 (1982); see also Isaacs v. United States, 159 U.S. 487, 489 (1895); Crumpton v. United States, 138 U.S. 361, 364-365 (1891). Courts have said that compulsory process under this rule is not an absolute right, but is committed to the sound discretion of the court. See United States v. Gilliss, 645 F.2d 1269, 1279 (8th Cir. 1981). /9/ See, e.g., United States ex rel. Enoch v. Hartigan, 768 F.2d at 163; Fendler v. Goldsmith, 728 F.2d at 1187-1189; Ronson v. Commissioner of Correction, 604 F.2d at 179; United States v. White, 583 F.2d at 902; Escalera v. Coombe, 652 F. Supp. at 1323-1324; United States ex rel. Robinson v. McGinnis, 593 F. Supp. 175, 180 & n.3 (C.D. Ill. 1984), aff'd mem., 753 F.2d 1078 (7th Cir.) (Table), cert. denied, 471 U.S. 1116 (1985); State v. Boucino, 506 A.2d at 130; Taliaferro v. State, 295 Md. at 389, 456 A.2d at 36; State v. Smith, 17 Ohio St. 3d at 105, 477 N.E.2d at 1134; State v. Silva, 118 R.I. 411-412, 374 A.2d 106, 109 (1977); 2 W. LaFave & J. Israel, Criminal Procedure Section 19.4, at 527-529 (1984); cf. United States v. Myers, 550 F.2d 1036, 1043 (5th Cir. 1977) (government's failure to satisfy discovery requirements). This is the approach followed by state courts in Illinois. See, e.g., People v. Foster, 145 Ill. App. 3d 477, 495 N.E.2d 1141 (1986); People v. Curtis, 141 Ill. App. 3d 827, 491 N.E.2d 134 (1986); People v. Rayford, 43 Ill. App. 3d 283, 287, 356 N.E.2d 1274, 1277 (1976). /10/ The Illinois statute contains alternatives. It provides that if a party fails to comply with a discovery order, "the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances." It also provides that "(w)illful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court." Ill. Ann. Stat. ch. 110A, para. 415(g) (Smith-Hurd 1985). In this statute, Illinois has adopted a variety of possible sanctions calculated to induce compliance with its discovery rules and to provide a remedy suitable to every degree of delinquency. /11/ This case does not involve excusable neglect or the presentation of a witness who first became known during trial. It also does not present the issue whether the preclusion sanction may be applied for a violation that is unintentional but nonetheless results in prejudice to the prosecution. /12/ See, e.g., United States v. Barron, 575 F.2d at 757; State v. Dodd, 101 Ariz. at 237, 418 P.2d at 574; State v. Boucino, 506 A.2d at 130; Taliaferro v. State, 295 Md. at 389, 456 A.2d at 36; State v. Flohr, 301 N.W.2d at 372; State ex rel. Simos v. Burke, 41 Wis. 2d at 139-140, 163 N.W.2d at 182; Epstein, supra, 55 J. Crim. L. Criminology & Police Sci. at 36; Comment, Alibi Notice Rules: The Preclusion Sanction as Procedural Default, 51 U. Chi. L. Rev. 254, 276-277 (1984). /13/ See Rule 12.1 advisory committee notes, 18 U.S.C. App. at 591; Taliaferro v. State, 295 Md. at 387, 456 A.2d at 35; Epstein, supra, 55 J. Crim. L. Criminology & Police Sci. at 35; Comment, supra, 51 U. Chi. L. Rev. at 260, 281-285. The advisory committee notes on Rule 12.1 stated (18 U.S.C. App. at 591): "The Court (in Wardius v. Oregon, 412 U.S. 470 (1973)) said that it did not consider the question of the 'validity of the threatened sanction, had petitioner chosen not to comply wioth the notice-of-alibi rule.' * * * Rule 12.1(e) provides that the court may exclude the testimony of any witness whose name has not been disclosed pursuant to the requirements of the rule. The defendant may, however, testify himself. Prohibiting from testifying a witness whose name was not disclosed is a common provision in state statutes. See Epstein, (Advance Notice of Alibi, 55 J. Crim. L. Criminology & Police Sci. 29, 35 (1964)). It is generally assumed that the sanction is essential if the notice-of-alibi rule is to have practical significance. See Epstein, supra, at 36. The use of the term 'may' is intended to make clear that the judge may allow the alibi witness to testify if, under the particular circumstances, there is cause shown for the failure to conform to the requirements of the rules. This is further emphasized by subdivision (f) which provides for exceptions whenever 'good cause' is shown for the exception." This rule as finally formulated was identical to the original version submitted by this Court to Congress. The House bill on rule 12.1(d) as submitted to the House Committee would have made exclusion of alibi witnesses the mandatory sanction if the defense failed to comply with the disclosure requirements. H.R. 6799, 94th Cong., 1st Sess. (1975); see United States v. Smith, 524 F.2d at 1290 n.5. /14/ Taliaferro v. State, 295 Md. at 387, 456 A.2d at 35-36; Comment, supra, 51 U. Chi. L. Rev. at 260. In 1984, notice-of-alibi rules or statutes were in effect in 41 states and the District of Columbia. Comment, supra, 51 U. Chi. L. Rev. at 259-260, 281-285. Most jurisdictions have an express provision for the exclusion of alibi witness. Taliaferro v. State, supra. /15/ The courts of appeals have overwhelmingly ruled that judges may not immunize prospective defense witnesses without a request from the prosecution. See, e.g., United States v. Whittington, 783 F.2d 1210, 1219-1220, on reh'g, 786 F.2d 644 (5th Cir. 1986), cert. denied, No. 85-1974 (Oct. 14, 1986); United States v. Pennell, 737 F.2d 521, 526-528 (6th Cir. 1984), cert. denied, 469 U.S. 1158 (1985); United States v. Gottesman, 724 F.2d 1517, 1524 (11th Cir. 1984); United States v. Bounos, 693 F.2d 38, 39 (7th Cir. 1982); United States v. Karas, 624 F.2d 500, 505 (4th Cir. 1980), cert. denied, 449 U.S. 1078 (1981); United States v. Turkish, 623 F.2d 769, 771-779 (2d Cir. 1980), cert. denied, 449 U.S. 1077 (1981); United States v. Graham, 548 F.2d 1302, 1315 (8th Cir. 1977); United States v. Caldwell, 543 F.2d 1333, 1356 n.115 (D.C. Cir. 1974), cert. denied, 423 U.S. 1087 (1976); United States v. Alessio, 528 F.2d 1079, 1081-1082 (9th Cir.), cert. denied, 426 U.S. 948 (1976). But cf. Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980) (holding that a district court may immunize a defense witness when he possesses essential exculpatory information that is unavailable from other sources). /16/ Preclusion would ordinarily be deemed unreasonable if it were the defendant who was barred from testifying, since the prosecution will be prepared to refute the defendant's version of the events before trial commences. See Alicea v. Gagnon, 675 F.2d at 923-924. The Federal Rules of Criminal Procedure provide that the defendant may not be prohibited from testifying because of a violation of an alibi disclosure requirement. Fed. R. Crim. P. 12.1(d). /17/ Compare Societe Internationale v. Rogers, 357 U.S. 197 (1958) (interpreting Fed. R. Civ. P. 37); cf. United States v. Morrison, 449 U.S. 361, 365 (1981) ("(o)ur approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant * * * a fair trial"). /18/ See, e.g., United States v. Gotchis, 803 F.2d 74, 78 (2d Cir. 1986); United States v. Balistrieri, 779 F.2d 1191, 1220-1221 (7th Cir. 1985), cert. denied, No. 85-1653 (June 23, 1986); United States v. Moeckly, 769 F.2d 453, 464 (8th Cir. 1985), cert. denied, No. 85-1083 (May 5, 1986); United States v. Echeverry, 759 F.2d 1451, 1456 (9th Cir. 1985); United States v. Tashjian, 660 F.2d 829, 839 (1st Cir.), cert. denied, 454 U.S. 1102 (1981); United States v. Pope, 574 F.2d 320, 322-327 (6th Cir.), cert. denied, 439 U.S. 868 (1978); United States v. Bryant, 439 F.2d 642, 651 (D.C. Cir. 1971). /19/ At the same time, a state may place the burden on the defaulting party to show good cause why exclusion is not warranted under the circumstances. The offending party may be given the burden of showing why the sanction is excessive and suggesting to the court that alternative sanctions are more appropriate. And where there is no suggestion that alternative sanctions be employed, a trial court may properly exclude a witness without explaining why it did not use such penalties. State v. Boucino, 506 A.2d at 131; see United States v. Smith, 524 F.2d at 1289-1290. /20/ As the Court held in Murray v. Carrier, slip op. 7: "So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standards established in Strickland v. Washington, supra, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default." See also Link v. Wabash R.R., 370 U.S. 626, 633-634 (1962) (citation omitted) ("Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.'").