Fed. R. Crim. P. 12.3

(a) Notice of the Defense and Disclosure of Witnesses.

(1) Notice in General. If a defendant intends to assert a defense of actual or believed exercise of public authority on behalf of a law enforcement agency or federal intelligence agency at the time of the alleged offense, the defendant must so

notify an attorney for the government in writing and must file

a copy of the notice with the clerk within the time provided

for filing a pretrial motion, or at any later time the court

sets. The notice filed with the clerk must be under seal if the

24 Rule 12.3 FEDERAL RULES OF CRIMINAL PROCEDURE

notice identifies a federal intelligence agency as the source of

public authority.

(2) Contents of Notice. The notice must contain the following

information:

(A) the law enforcement agency or federal intelligence

agency involved;

(B) the agency member on whose behalf the defendant

claims to have acted; and

(C) the time during which the defendant claims to have

acted with public authority.

(3) Response to the Notice. An attorney for the government

must serve a written response on the defendant or the defendant’s attorney within 14 days after receiving the defendant’s

notice, but no later than 21 days before trial. The response

must admit or deny that the defendant exercised the public

authority identified in the defendant’s notice.

(4) Disclosing Witnesses.

(A) Government’s Request. An attorney for the government may request in writing that the defendant disclose

the name, address, and telephone number of each witness

the defendant intends to rely on to establish a public-authority defense. An attorney for the government may

serve the request when the government serves its response

to the defendant’s notice under Rule 12.3(a)(3), or later, but

must serve the request no later than 21 days before trial.

(B) Defendant’s Response. Within 14 days after receiving

the government’s request, the defendant must serve on an

attorney for the government a written statement of the

name, address, and telephone number of each witness.

(C) Government’s Reply. Within 14 days after receiving the

defendant’s statement, an attorney for the government

must serve on the defendant or the defendant’s attorney a

written statement of the name of each witness—and the

address and telephone number of each witness other than

a victim—that the government intends to rely on to oppose the defendant’s public-authority defense.

(D) Victim’s Address and Telephone Number. If the government intends to rely on a victim’s testimony to oppose the

defendant’s public-authority defense and the defendant establishes a need for the victim’s address and telephone

number, the court may:

(i) order the government to provide the information

in writing to the defendant or the defendant’s attorney; or

(ii) fashion a reasonable procedure that allows for

preparing the defense and also protects the victim’s interests.

(5) Additional Time. The court may, for good cause, allow a

party additional time to comply with this rule.

(b) Continuing Duty to Disclose.

(1) In General. Both an attorney for the government and the

defendant must promptly disclose in writing to the other

party the name of any additional witness—and the address,

and telephone number of any additional witness other than a

victim—if:

25 Rule 13 FEDERAL RULES OF CRIMINAL PROCEDURE

(A) the disclosing party learns of the witness before or

during trial; and

(B) the witness should have been disclosed under Rule

12.3(a)(4) if the disclosing party had known of the witness

earlier.

(2) Address and Telephone Number of an Additional Victim-Witness. The address and telephone number of an additional

victim-witness must not be disclosed except as provided in

Rule 12.3(a)(4)(D).

(c) Failure to Comply. If a party fails to comply with this rule,

the court may exclude the testimony of any undisclosed witness

regarding the public-authority defense. This rule does not limit

the defendant’s right to testify.

(d) Protective Procedures Unaffected. This rule does not limit

the court’s authority to issue appropriate protective orders or to

order that any filings be under seal.

(e) Inadmissibility of Withdrawn Intention. Evidence of an intention as to which notice was given under Rule 12.3(a), later withdrawn, is not, in any civil or criminal proceeding, admissible

against the person who gave notice of the intention.

(As added Pub. L. 100–690, title VI, § 6483, Nov. 18, 1988, 102 Stat.

4382; amended Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec.

1, 2009; Apr. 28, 2010, eff. Dec. 1, 2010.)