Samuel Winder has published “Trial By Ambush: The Prosecution of Indians in Federal Court” in the Loyola of Los Angeles Law Review. PDF

Here is the abstract:

This Article addresses the Federal Rules of Criminal Procedure’s unjust impact in the prosecution of Indians in federal court. As the rules of engagement used by federal prosecutors and defense attorneys in federal court when prosecuting Indians under the Major Crimes Act and the General Crimes Act, the Federal Rules of Criminal Procedure differ from those of Civil Procedure with regard to discovery procedures. Specifically, the Federal Rules of Criminal Procedure are unjust because they do not allow defense attorneys to conduct pretrial interviews or depositions of prospective witnesses whose evidence the United States will introduce at trial or use in the process of plea negotiations. Pretrial interviews and depositions prevent a party from being caught by surprise or ambushed in federal court.

Unlike federal courts, several tribes in New Mexico provide the mechanism for conducting pretrial interviews of trial witnesses. New Mexico state courts require pretrial interviews. New Mexico’s criminal procedural rules are similar to the procedural rules in Florida state courts. The states of Indiana, Missouri, and Vermont require depositions in criminal proceedings. In addition, military courts require depositions.

Indians were not involved in the enactment of the Major Crimes Act or the Federal Rules of Criminal Procedure, which have had a significant impact on the lives of Indians, both victims and defendants. This Article argues that the Federal Rules of Criminal Procedure should be modified to require pretrial interviews or depositions to ensure that Indians prosecuted in federal court are not unjustly ambushed.