The Jencks Act and Defending Federal Criminal Cases
The origins of this Act are in a 1957 U.S. Supreme Court case called Jencks v. United States, 353 U.S. 657 (1957). Clinton Jencks, a labor activist and union leader, was charged and convicted of filing a false “Affidavit of Non-Communist Union Officer” with the National Labor Relations Board. Jencks swore in his affidavit that he was not a communist, but the Government alleged that he was. The case against Jencks relied heavily on the testimony of two paid FBI informants. During the course of his trial, the defense moved to have the statements of these two witnesses produced (i.e., turned over to the defense) so that they could be inspected and used in cross examination at trial. The trial judge denied that motion.
The Government essentially believed that it did not have to produce statements of witnesses against a defendant, made at the Government’s request, and who were paid by the Government for being a witness against the defendant. The trial court agreed with the Government, and the appellate court did too. Thankfully, the Supreme Court thought otherwise.
Unfortunately, this decision lead Congress that same summer to enact a new law which was (and still is) commonly referred to as the Jencks Act. While disguising itself as a mere codification of the ruling made by the Supreme Court in Jencks, the Jencks Act actually makes it harder for criminal defendants to get a fair trial in federal court.
The Jencks Act, codified as 18 U.S.C. 3500, does a number of things–none of which are designed to compel the Government to turn over witness statements to the defendant in a meaningful way. In paragraph(a) it protects the Government from having to disclose the statements of witnesses or prospective witnesses (other than the Defendant) until after the witness has testified on direct examination. Imagine that. Americans have a right to a trial where the government has the whole burden of proof, but no American is entitled to the statements of the witnesses or potential witnesses against him/her until after that witness has testified during trial. As a practical matter this means that during trial, after each government witness testifies, the defense attorney must ask for, receive, and review statements, determine inconsistencies, and formulate a cross examination. The Government, on the other hand, has had access to these statements and witnesses for months, if not years.
Paragraphs (b) and (c) provide little (and some would argue no) relief to the Defendant during this process. Paragraph (b) says that the production of these witness statements is not automatic so if the attorney does not make a motion for Government to produce the statements, he/she gets no statements even if they exist. Paragraph (c) further insulates the Government from disclosure of statements by allowing the Government to refuse to disclose the statements. If the Government refuses to disclose the statements pursuant to paragraph(c) then the statements are reviewed in camera by a judge who determines whether they should be produced to the defendant. It is true that paragraph (c) says that the court may recess the proceedings for “such time as it may determine may be reasonably required” for examination and use by the defendant. But this is not the remedy it purports to be for a number of reasons:
- As a practical matter, there is a limited amount of time a judge can give an attorney during a trial while the jury is waiting to prepare to make use of these new statements;
- At the point in time the when the Government is required to turn over the statements the trial has already started. In practice this means that the case is two, three, four or more years old and any additional evidence (video recordings, audio recordings, text messages, other witnesses, etc.) have all disappeared or are otherwise no longer available to the defense not to mention that the trial attorney is likely only working with a few hours (at most) to make use of these things and subpoenas and investigations can take weeks if not months;
- Paragraph (d) of the Jencks Act which gives the Government the opportunity to simply refuse to follow a court order (although this could lead to a mistrial).
The great deference given to federal prosecutors and investigators in the disclosure of witness statements in a criminal case may come as a shock to people accustomed to criminal discovery in state courts. For instance, Illinois Supreme Court Rule 412 requires the prosecution to turn over all witness statements “as soon as practicable following the filing of a motion by defense counsel.” Many states have similar requirements; in fact, the American Bar Association recommends that prosecutors generally be required to turn over witness statements within 14 days from the filing of criminal charges [ABA Standards for Criminal Justice: Discovery, Fourth Edition (2020)]. The purpose of these provisions is to ensure that defendants and their counsel have sufficient time prior to trial to review statements of prosecution witnesses to (1) decide whether to go to trial at all, (2) investigate the defense case, and (3) prepare to cross examine witnesses at trial. Federal defendants are not entitled to this luxury, and instead may only receive the minimal discovery required by Rule 16 of the Federal Rules of Criminal Procedure, and anything else which the Government attorney chooses to voluntarily provide (usually in an effort to convince the defendant to plead guilty). This is one part of why defending the accused in federal court is a particularly demanding and onerous task. source
Presentation on theme: “OVERCOMING OBSTACLES TO DISCOVERY AND INVESTIGATION IN FEDERAL COURT Peter Offenbecher.”— Presentation transcript:
1 OVERCOMING OBSTACLES TO DISCOVERY AND INVESTIGATION IN FEDERAL COURT Peter Offenbecher
3 TRUTH JUSTICE THE AMERICAN WAY
4 WHO WE THINK WE ARE
5 WHAT WE ALWAYS DO
6 WHO WE REALLY ARE
7 THE DECK IS STACKED AGAINST US
8 SHARING STUFF
9 FPD BRIEFBANK CALL ME
10 DISCOVERY AND INVESTIGATION: OVERVIEW RULE 16(a)(1)(E)(i) BRADY AND GIGLIO TIPS JENCKS DELAY NEEDLE IN A HAYSTACK PLOY USING RPCS USING DOJ RULES RULE 17(c) SUBPOENA
13 WHAT IS OUR ULTIMATE GOAL? WIN THE TRIAL!
14 ACQUITTAL!
15 LESSER INCLUDED
16 HUNG JURY
17 DISMISSAL / SMOKING DEAL The merits of your defense The government is afraid of getting caught in some form of misconduct either: on their part or the part of the law enforcement agency They don’t want to work as hard as you are going to make them work Evidence to persuade the government to dismiss the case or offer a smoking deal that works for the client because:
19 DISCOVERY AND INVESTIGATION: Make the government commit a serious error Make the court commit a serious error MAKING A RECORD FOR APPEAL OR HABEAS
20 DISCOVERY AND INVESTIGATION: Finding admissible evidence to present at trial: To support client’s defense: That can be used to attack the credibility of the government’s case What are we trying to accomplish?
21 BIGGEST PROBLEM FINDING EVIDENCE IN FEDERAL COURT?
22 THE RULES ARE NOT FAIR
23 NO OPEN FILE DISCOVERY
24 NO WITNESS INTERVIEWS
25 NO RECORDING OF WITNESS INTERVIEWS
26 Federal Rule of Criminal Procedure 16 Specific items Items material to preparing the defense
27 RULE 16: SPECIFIC ITEMS Defendant’s criminal history Defendant’s statements Documents and objects: Government intends to use in case in chief Items obtained from/or belong to defendant Reports of examinations and tests Expert witnesses
28 FAVORITE WEAPON IN RULE 16
29 MATERIAL TO PREPARING THE DEFENSE RULE 16 (a)(1)(E)(i) The government must permit defendant to inspect and copy if within government’s possession, custody or control ANY ITEM THAT IS MATERIAL TO PREPARING THE DEFENSE
30 MATERIAL TO PREPARING THE DEFENSE RULE 16 (a)(1)(E)(i)
32 “Rule 16 is intended to provide a criminal defendant ‘the widest possible opportunity to inspect and receive such materials in the possession of the Government as may aid him in presenting his side of the case.’” United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005) D.C. District Judge Paul Friedman
33 “There is no requirement in Rule 16(a)(1)(E)(i) that the material be exculpatory.” United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)
34 “It is not limited to evidence that is favorable or helpful to the defense and does not immunize inculpatory evidence from disclosure.” United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)
35 “Inculpatory evidence, after all, is just as likely to assist in ‘the preparation of the defendant’s defense’ as exculpatory evidence….” “[I]t is just as important to the preparation of a defense to know its potential pitfalls as to know its strengths.” United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)
37 Rule 16(a)(1)(E)(i) permits discovery of information “relevant to the development of a possible defense.” United States v. Muniz-Jaquez, 718 F.3d 1180, 1183-84 (9th Cir. 2013) Judge Alfred Goodwin
38 “Materiality” under Rule 16(a)(1)(E)(i) is “broader than Brady…because [i]nformation that is not exculpatory or impeaching may still be relevant to developing a possible defense.” United States v. Muniz-Jaquez, 718 F.3d 1180, 1183-84 (9th Cir. 2013)
40 Rule 16(a)(1)(E)(i) “[m]ateriality is a low threshold” and is satisfied so long as the information sought could help the defendant prepare a defense. CHIEF JUDGE ALEX KOZINSKI United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)
41 “It…behooves the government to interpret the disclosure requirement [of Rule 16(a)(1)(E)(i)] broadly and turn over whatever evidence it has pertaining to the case.” United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)
42 A defendant needn’t spell out his theory of the case in order to obtain discovery. Nor is the government entitled to know in advance specifically what the defense is going to be. United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)
43 LACK OF KNOWLEDGE OR DUE DILIGENCE IS NO EXCUSE FOR GOVERNMENT’S FAILURE TO COMPLY United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013)
44 CHIEF JUDGE KOZINSKI
45 WHY RULE 16(a)(1)(E)(i) IS SO GOOD
46 Defense counsel constitutionally ineffective for failing to conduct an investigation which would have revealed a meritorious Fourth Amendment motion to suppress physical evidence and failing to pursue the motion to suppress. Kimmelman v. Morrison, 477 U.S. 365, 385-86 (1986)
47 INFORMATION REGARDING MOTIONS TO SUPPRESS EVIDENCE IS “MATERIAL TO PREPARATION OF THE DEFENSE” Because defense counsel have a constitutional obligation to investigate and file these motions to suppress, the information and evidence requested regarding the motion is “material to preparation of the defense.” Fed. R. Crim. P. 16(a)(1)(E)(i).
48 OTHER WEAPONS IN THE ARSENAL
49 Brady v. Maryland Giglio v. United States
50 DISAVOW THE STANDARD OF MATERIALITY UNDER BRADY/BAGLEY The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.
51 TRIAL COURT STANDARD OF REVIEW
52 The standard of whether evidence would have changed the outcome “is only appropriate, and thus applicable, in the context of appellate review… [I]t obviously cannot be applied by a trial court facing a pretrial discovery request.” United States v. Sudikoff, 36 F. Supp. 2d 1196 (C.D. Cal. 1999) Judge Harry Pregerson
53 The government must always produce any potentially exculpatory or otherwise favorable evidence without regard to how the withholding of such evidence might be viewed – with the benefit of hindsight – as affecting the outcome of the trial. United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005)
54 A trial prosecutor’s speculative prediction about the likely materiality of favorable evidence, however, should not limit the disclosure of such evidence, because it is just too difficult to analyze before trial whether particular evidence ultimately will prove to be “material” after trial. Thus, “there is a significant practical difference between the pretrial decision of the prosecutor and the post-trial decision of the judge.” United States v. Olsen, 704 F.3d 1172, 1183 n.3 (9th Cir. 2013)
55 The ‘materiality’ standard usually associated with Brady… should not be applied to pretrial discovery of exculpatory materials. The absence of prejudice to the defendant does not condone the prosecutor’s suppression of exculpatory evidence. United States v. Price, 566 F. 3d 900, 911 n.12 (9th Cir. 2009) Judge Stephen Reinhardt
56 Rather, the proper test for pretrial disclosure of exculpatory evidence should be an evaluation of whether the evidence is favorable to the defense, i.e., whether it is evidence that helps bolster the defense case or impeach the prosecutor’s witnesses…. If doubt exists, it should be resolved in favor of the defendant and full disclosure made. o pretrial discovery of exculpatory materials… United States v. Price, 566 F. 3d 900, 911 n.12 (9th Cir. 2009)
57 UNITED STATES ATTORNEYS MANUAL
58 ADOPTED BY THE DOJ The USAM requires prosecutors to disclose information beyond that which is “material” to guilt as articulated by the U.S. Supreme Court, and prosecutors must disclose exculpatory or impeachment information…. regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime. U. S. Attorneys Manual § 9-5.001.
59 FIRST ASK NICELY WHAT YOU WANT
60 MAKE THE PROSECUTOR ADOPT THE TRIAL COURT STANDARD OF REVIEW Send them a letter asking them to agree that this is the standard. Then file a motion asking the judge to set that standard for the prosecutor.
61 Practical Order of Events 1. Letter – specific and general 2. Meeting – Local Rule 16 requires a meet and confer 3. Follow-up letter 4. Motion for order compelling discovery 5. Request a hearing on the motion 6. Oral argument – present evidence – call witnesses
62 United States v. Phair and Louie No. CR 12-16 RAJ Judge Richard A. Jones
63 INFORMATION, NOT JUST STUFF United States v. Kohring, 637 F.3d 895, 900 (9th Cir. 2011)
64 JENCKS DELAYS The prosecutor promised to provide Jencks Act statements “at a reasonable time before trial.” The Court concluded that “this statement is, in essence a waiver by the government of its right to withhold any statements covered by the Jencks Act until after the relevant witness testifies on direct examination.” United States v. Hikiau, Inc., 2:07-CR-00792-DAKPMW, 2008 WL 803053 (D. Utah Mar. 21, 2008)
65 Affirming trial court order directing the disclosure of the government’s final witness list one year prior to trial THE COURT’S INHERENT POWER TO CONTROL ITS CALENDAR United States v. W.R. Grace, 526 F.3d 499, 508-12 (9th Cir. 2008)(en banc)
66 GET AN EVIDENTIARY HEARING ON ANYTHING WHERE YOU CAN CALL THE AGENTS TO TESTIFY Get the Jencks (Rule 26.2 (g)) [preliminary hearing, sentencing hearing, revocation hearing, detention hearing, suppression hearing]
67 GET THE AGENTS TESTIFYING UNDER OATH
68 Because you know what’s going to happen
69 Get the agents and witnesses talking to the AUSAs, so that NEW BRADY AND RULE 16 MATERIAL will be generated
70 USE THE RULES OF PROFESSONAL CONDUCT
71 28 U.S.C. Section 530B(a) (also known as the “Citizen’s Protection Act of 1998”) (“An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.”); 28 C.F.R. § 77.3 (“In all criminal investigations and prosecutions… attorneys for the government shall conform their conduct and activities to the state rules and laws, and federal local court rules.”)
72 RPC 3.8(d) The prosecutor in a criminal case shall… (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. See ABA Formal Op. 09-454, at (July 8, 2009))
73 NEEDLE IN A HAYSTACK DISCOVERY PLOY
74 Judge Marsha J. Pechman United States v. Silva No. CR12-047 MJP
75 CRIMINAL RULE 17(c) AND CIVIL RULE 45
77 Practice pointers Affirmative duty to search possible sources of exculpatory information Government’s witness preparation material Within its possession custody or control Jencks request after the direct examination of witness Request for preservation of notes
78 HENTHORN
79 Review of the personnel files of any government witness to determine whether such files contain any information tending to cast doubt on that witness’s credibility. United States v. Henthorn, 931 F.2d 29, 30-31 (9th Cir. 1991). United States v. Jennings, 960 F.2d 1488, 1491-92 (9th Cir. 1992).
The Jencks Act
In the United States, the Jencks Act (18 U.S.C. § 3500) requires the prosecutor to produce a verbatim statement or report made by a government witness or prospective government witness (other than the defendant), but only after the witness has testified.
Jencks material is evidence that is used in the course of a federal criminal prosecution in the United States. It usually consists of documents relied upon by government witnesses who testify at trial. The material is described as inculpatory, favoring the United States government’s prosecution of a criminal defendant.
The Jencks Act also covers other documents related to the testimony, or relied upon by government witnesses at trial. Typically, the material may consist of police notes, memoranda, reports, summaries, letters, related to an indictment or verbatim transcripts used by government agents or employees to testify at trial.[1] This also includes a witness’s grand jury testimony, if the witness testified at trial.[2]
After the government’s witness testifies, the court must, upon motion of the defendant, order the government to produce any statement of the witness in the government’s possession relating to the subject matter as to which the witness testified. The court’s denial of such a motion by a defendant is reversible error, although the court need not order the disclosure sua sponte.[3] The usual remedy for failure of the government to produce the documents is a mistrial and dismissal of criminal charges against the defendant.[4]
By the Act, Congress exercised its power to define the rules that should govern this particular area in the trial of criminal cases instead of leaving the matter of lawmaking to the courts.[6] The Act, and not the Supreme Court decision in the Jencks case, governs the production of statements of government witnesses in a federal criminal trial.[7] The Jencks Act is constitutional as an exercise of congressional power to prescribe rules of procedure for the federal courts.[8] In some instances however, the statute may be overridden by an accused’s constitutional right to disclosure of exculpatory evidence.[9][10]
The Jencks Act governs production of statements and reports of prosecution witnesses during federal criminal trials. The Act provides that in any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a government witness or prospective government witness (other than the defendant) shall be the subject of subpoena, discovery or inspection until the witness called by the United States has testified on direct examination in the trial of the case.[11] After testimony of the witness, called by the government on direct examination, the court must, on motion of the defendant, order the United States to produce any statement of the witness in the possession of the government. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
Definition
Under the Jencks Act, a “statement” of a prosecution witness is:
- A written statement made by the witness and signed or otherwise adopted or approved by him;
- A stenographic, mechanical, electrical or other recording, or a transcription of it, which is substantially verbatim recital of an oral statement made by the witness to an agent of the Government and recorded contemporaneously with the making of such oral statement; or
- A statement, however taken or recorded, or a transcription of it, made by the witness to a grand jury.[12]
If the government does not deliver a witness’s Jencks statement to the defendant, the court may strike the witness’s testimony or declare a mistrial.[13]
The Jencks Act has been characterized as intending to assure defendants of their right to confront their accusers under the Sixth Amendment.[14] Its provisions are not a constitutional mandate.[15] Its requirements do not rise to constitutional stature.[16] The Confrontation Clause of the Sixth Amendment is not necessarily violated by the government’s failure to produce Jencks Act material,[17] but may be violated by preventing the ability to confront government witnesses.[18]
Brady material
In Brady v. Maryland[19] it was ruled that the suppression of evidence favorable to an accused violates due process, irrespective of the good or bad faith of the prosecutor, where such evidence is material to the guilt or punishment of the accused.[20] The failure of the government to produce exculpatory evidence may or may not fall within the confines of the Jencks Act. In some cases, the production of documents must be made at a time prior to that required by the Jencks Act.[21][22][23] The Brady rule may require the prosecutor to disclose grand jury testimony prior to trial, if the information is exculpatory, as well as other Brady material.[24]
In United States v. Anderson,[25] when Brady material is contained within Jencks Act material disclosure is generally timely if the government complies with the Jencks Act.
The Jencks Act applies to statements “in the possession of the United States”.[26] This means in the possession of the federal prosecutor.[27][28][29][30]
Any information in control of the court reporter or the trial court is not subject to the Jencks Act. The Act does not affect material in control of state, as opposed to federal agencies.
It is important that requests made prior to trial which are denied on the basis of a statement by the prosecution that “the material is not in our possession” be reasserted at trial in front of the court. Otherwise, the court will consider the request to have been abandoned.[31]
Subpoena of material
The Jencks Act provides that no material shall be subject to subpoena, discovery or inspection until the said witness has testified on direct examination in the trial of the case.[32] In context, the word trial means a judicial proceeding conducted for the purpose of determining the guilt or innocence of a person, and according to the statutory language, the defense is not entitled to production of a witness’ statement under the Act after the witness has testified at a preliminary hearing.[33][34][35]
The bar against compulsory disclosure prior to the testimony of the witness whose statement is sought cannot be circumvented by resort to the Freedom of Information Act,[36] or Rule 16 of the Federal Rules of Criminal Procedure.[37]
It is left to the discretion of the trial court to determine whether Jencks material can be delivered before trial. This can be done to expedite a trial involving many witnesses.[38][39] Disclosure of material may be required because of the Brady doctrine.
Material may not be excluded from production because it is claimed that it is the “work product” of government lawyers.[40] In a related manner, the production of a final report does not exclude the production of preliminary drafts.[41]
Tape recordings of an interview between a government agent and a government witness is producible under the Jencks Act after the witness has testified, if the recording relates to the witness’ testimony.[42] Composite drawings made from photographs are not producible. Photographs, if they relate to a witness’ statement must be produced.[43][44] Notes taken by a prosecutor or a law enforcement officer pertaining to an interview with a potential government witness may be subject to production under the Jencks Act if the witness testifies at trial.[45][46]
Oral statements
An oral statement which has never been transcribed in any fashion is not a “statement” within the meaning of the Act.[47] Moreover the Act does not require law enforcement officers to make any record of an interview, nor to submit interview notes to the witness for approval so as to generate a statement which is producible under the Act.[48] Notes that are signed, adopted or approved by the witness are generally subject to subpoena. Those that are not cannot be ordered to be produced. Notes that are only of one word references and short phrases are not producible.[49] Investigator’s notes made from memory several days after interviewing a witness are not “verbatim” under the meaning of the Act, and hence not subject to subpoena.[50]
On police officer’s notes on statements of another were not “statements” within the meaning of the Jencks Act where there was no evidence that such notes were ever approved by the officer or that his words were recorded verbatim.[51]
Records of surveillance activities are not Jencks Act statements even though they have been transmitted by one government agent to another.[52]
Notes produced during the course of surveillance need not be preserved or produced.[53]
A statement by a government witness before a grand jury is producible under Jencks Act to the extent that it relates to the subject matter of the trial testimony.[54]
Such a statement is reproducible even though it has not been transcribed.[55]
Grand jury information
Although the government is obliged to make a record of all testimony before the grand jury, it is under no obligation to create producible material under the Jencks Act by calling key witnesses before the grand jury.[56][57]
The provision of the Jencks Act relating to disclosure of a witness’ grand jury testimony address only disclosure at trial. Pretrial disclosure of such testimony is governed by Rule 6 (e) of the Federal Rules of Criminal Procedure.[58]
The Act does not bar the pretrial disclosure of grand jury testimony where requirements of Rule 6 (e) for such disclosure have been met.[59][60][61][62]
Sometimes courts will hold an in-camera hearing to determine if the material is relevant under the Act, it is not necessary for the production of documents.[63][64]
It is generally necessary that the defense make a motion for the production of the prior statement of a government witness under the Jencks Act.[65][66] [67]
The motion of the defense for production should be made at the close of the testimony of the witnesses from whom the documents are sought. The request should not be made at the close of the prosecution’s case, nor prior to the close of the trial.[68][69][70][71]
Pre-trial conference, document production
The identification and production of Jencks Act material may also be addressed at a pretrial conference. It is usual for the defense to receive the material outside the purview of the jury to avoid inference that the material is damaging to the defendant.[72] If the material is not relevant, or helpful for impeachment, defense council may decide not to use it.[73]
Requiring production of Jencks material in front of the jury is reversible error.[74]
There must be some reason to believe that the documents actually exist. This can be documented when the witness uses the document to testify from, or by testimony that the document exists.[75][76][77]
The decision whether a document should be produced is made by the trial court and not the prosecution.[78]
Determining if the documents should be produced
Once issues concerning the producibility of a requested statement have been raised, it is the duty of the court to conduct some sort of inquiry. This is a question for the court, and not the jury.[79][80]
A trial court’s decision of what material must be produced under the Act is subject to review under the “clearly erroneous” standard.[81]
Manner of determination
It is within the discretion of the court to determine in the most appropriate manner whether a requested document is a producible statement.[82] To determine whether a document is a statement under the Act, the court may
- Conduct a voir dire examination of the declarant on the witness stand.[83][84][85]
- Conduct a hearing outside the presence of the jury to examine evidence extrinsic to the statement.[86]
- Examine the requested document in camera.[87][88]
The act requires in camera inspection to resolve any question as to whether or to what extent the document relates to the subject matter of the witness’ testimony.[89]
The determination of the production and admissibility of documents under the Jencks Act is not adversarial in nature, but only a proceeding to discharge the responsibility to enforce the Act. It is not the responsibility of the defense to prove that the document should be produced.[90][91][92][93]
If after in camera inspection, of the requested document the court determines that only part of it relates to the subject matter of the witness’s testimony, the court must excise those parts which do not relate to the witness’ testimony.[94]
The sections to be excluded is in the discretion of the court.[95]
Material cannot be excluded simply because the prosecution claims it is a matter of internal security, or confidentiality of the information.[96][97]
If the material is deemed to be work product of the prosecution, it can be excluded.[98]
If the defendant objects to the excision of parts of a document, the full text of the document must be preserved on the record for purposes of appeal.[99]
Notes prepared by law enforcement agents of an interview with a potential government witness may be subject to production under the Jencks Act, provided the witness testifies at the trial. Some government practices have led to the destruction of such notes prior to any trial. This is not, of itself, considered to be bad faith.[100][101]
A judicial hearing may be held to determine if the destruction of the notes was bad faith. If it is the normal procedure of the agency to destroy notes, it will generally not be considered to be bad faith.[102]
The Second Circuit has ruled that agent notes used to prepare a final report must also be preserved.[103]
If the prosecution elects not to comply with the order to produce Jencks Material, the court shall strike the testimony of the witness and continue with the trial. If the interests of justice require such, the trial is properly called a mistrial.[13][104]
It is incumbent upon the defense to file a motion with the court that it believes that the failure of the prosecution to produce the document is a violation of the Jencks Act.[105][106] If the interests of justice require such, the trial is properly called a mistrial.[13][104]
Although rough notes of an interview with a witness are producible, under Jencks Act where such notes are a substantially verbatim recital of the witness’ oral statements, failure to do so is probably harmless where the notes are substantially the same as a report based on the notes and released to the defense.[107]
Federal Rule 26.2
The provisions of the Jencks Act have been substantially incorporated into Rule 26.2 of the Federal Rules of Criminal Procedure. This is due to the notion that provisions which are purely procedural in nature should appear in the Rules, rather than in Title 18 of the United States Code. Rule 26.2 extends the provisions of the Jencks Act by providing that statements subject to production at trial are not only those of prosecution witnesses, but those of any witness other than the defendant. The Rule does not alter the Jencks Act schedule for production of statements, nor does it relieve a defendant seeking production of Jencks material from the necessity of making a request for production at the trial stage of the proceeding.[108][109]
Other cases involving the Jencks Act
Rosenberg v. United States, 1959
In Rosenberg v. United States, 1959,[110] the United States Supreme Court ruled that a letter written by a government witness to the FBI stating that her memory as to the commission of the alleged offense charged against the defendant had dimmed in the 3 years that had passed since the time of the offense, and that to refresh her failing memory she would have to reread the original statement she had given to the FBI, was producible under the Jencks Act.[111]
United States v. Ellenbogen, 1965
In United States v. Ellenbogen, 1965,[112] a prosecution for bribing a purchasing agent of the General Services Administration and for conspiring to commit similar offenses, wherein the purchasing agent pleaded guilty prior to the trial and was the principal witness for the government in the defendant’s case, it was held that the trial court’s refusal to allow the production of a signed sworn statement of the purchasing agent in which he explained in detail his similar unlawful dealings with bidders other than the defendant, on the ground that such statement had nothing to do with the present case, was error where on direct examination the agent was examined by the government on the point of such other dealings as covered in the requested statement. Noting that prior statements of a witness that “relate generally to the events and activities testified to” by him must be produced in the Jencks Act, the court said that since the statement in question related to the subject matter as to which the witness had testified, the statute left no room for the trial court, nor for the present court, to speculate as to how useful this statement would be for purposes of cross-examination or how important such cross-examination would be to the defendant’s case.[111]
United States v. Borelli, 1964
In United States v. Borelli,[113] an accomplice had testified for the prosecution at the trial of the defendant, it was held that the refusal to permit the production of a letter written by the accomplice to the government, in which he offered his assistance to the government in return for special consideration for himself, was error where such refusal was based on the ground that the letter did not “relate” to the subject matter to which the accomplice had testified. The court said there was no reason why a statement that would support impeachment for bias and interest does not “relate” to the witness’ testimony as much as a statement permitting impeachment for faulty memory as was involved in Rosenberg v. United States (see case supra), and that the word “relate” as used in the statute is not limited to factual narrative.[111]
References
- ^ 18 U.S.C. § 3500
- ^ Fed. R. Crim. Pro. 6
- ^ Government of the Virgin Islands v. Jamil Isaac, 2005 U.S. Dist. LEXIS 11038.
- ^ Jencks v. United States, 353 U.S. 657 (1957).
- ^ 353 U.S. 657, 1 L. Ed. 2nd 1103, 77 S. Ct. 1007, 75 Ohio L Abs. 465, 40 BNA LRRM 2147, 32 CCH LC P 70731
- ^ Palermo v. United States, 360 U.S. 343, 3 L. Ed. 2d 1287, 79 S. Ct. 1217, 59-2 U.S. Tax Cas. (CCH) parag. 9532; 3 A.F.T.R. 2d 1680 (1959), rehearing denied, 361 U.S. 855, 4 L. Ed. 2d 94, 80 S. Ct. 41 (19__).
- ^ Rosenberg v. United States, 360 U.S. 367, 3 L. Ed. 2d 1304, 79 S.Ct. 1231 (19__).
- ^ Palermo v. United States.
- ^ United States v. Gleason, 265 F. Supp. 880, 67-1 U.S. Tax Cas. (CCH) paragr. 9297, 19 A.F.T.R. 2d 1615 (S.D.N.Y.).
- ^ United States v. Quinn, 364 F. Supp. 432 (N.D. Ga. 19__)
- ^ 18 U.S.C. section 3500(a).
- ^ 18 U.S.C.S. section 3500(e).
- ^ Jump up to:a b c 18 U.S.C.S. section 3500(d).
- ^ United States v. Carter, [CA 10 Okla] 613 F. 2d 256 (10th Cir. 19__), cert. denied, 449 U.S. 822, 66 L. Ed. 2d 24, 101 S. Ct. 81 (19__).
- ^ United States v. Beasley (CA 5 Ala) 576 F 2nd 626, 78-2 USTC P 9586, 42 AFTR 2nd, 78-6360, reh den (CA 5 Ala) 585, F 2nd 796, 79-1 USTC P 9107, 42 AFTR 2nd 78-6369 and cert den 440 US 947, 59 L Ed 2nd 636, 99 SC 1426 subsequent civil proceeding summary judgment granted (SD Ala) 1993 US Dist LEXIS 16342, clarified. Adopted, dismissed (SD Ala) 1994 US dist Lexus
- ^ United States v. Halderman 181 US App DC 254, 559, F 2nd 31
- ^ United States v Hart (CA 5 Ala) 526 F 2nd 344, cert den 426 US 937
- ^ Krillich v. US (CA 7 Ill) 502 F 2nd 680
- ^ 373 US 83, 10 L Ed 2nd 215, 83 SC 1194
- ^ 23 Am Jur 2nd Depositions and Discovery section 450
- ^ Chavis v. North Carolina (CA 4 NC) 637 F 2nd 213
- ^ 7 Fed Rules evid Serv 1243
- ^ United States v. Campagnuolo (CA5 Fla) 592 F 2nd 852
- ^ Hooper, Laural L.; Marsh, Jennifer E.; and Yeh, Brian. Treatment of Brady v. Maryland Material in United States District and State Courts’ Rules, Orders, and Policies: Report to the Advisory Committee on Criminal Rules of the Judicial Conference of the United States Archived 2010-03-31 at the Wayback Machine, Federal Judicial Center, October 2004.
- ^ United States v. Anderson (CA 5 Ga) 574 F 2nd 1347
- ^ 18 USCS section 3500
- ^ United States v. Hutcher, CA2 NY 622, F2nd 1083 sert den. 449, US 875
- ^ United States v. Trevino CA5 Tex, 556, F2nd 1265
- ^ United States v. Polizzi CA9 Cal 801, F2nd 543
- ^ United States v. Cagnini Ca 11 Fla 697, F 2nd cert den 464 US 856
- ^ United States v. McKenzie CA5 Tex, 768, F 2nd 602, cert den 474 US 1086
- ^ USCS section 3500 (a)
- ^ United States v. Murphy CA 3 569, F 2nd 771, cert den 435 US 955
- ^ Robbins v. US CA 10 NM 476 F 2nd 26
- ^ Gibson v. Halleck DC Dist Col 254, F Supp 159
- ^ Barceloneta Shoe Corp. v. Compton DC Puerto Rico 271. F. Supp 591
- ^ FR Crim. P. Rule 16 (a)(2)
- ^ United States v. Garrison ED La 348 F Supp 1112
- ^ United States v. Narcisco ED Mich 446 F Supp 252
- ^ Goldberg v. United States 425, US 94 47 96 S Ct 1338
- ^ United States v. Waldron’ CA 3 Pa 578, F 2nd 966, cert den 444 US 849
- ^ United States v. Esposito CA 7 Ind. 369, F 2nd 474 cert den 386 US 1023 87 US 1517
- ^ United States v. Zurita CA 7 Ind. 369, F 2nd 474 cert den 386, US 1023
- ^ Simmons v. United States 390 US 377, 88 SC 367
- ^ United States v. Harris (CA 9) Wash 543 F 2nd 1247
- ^ 5 ALR 3rd 763 section 13
- ^ United States v. Taylor (CA 8 Mo) 599 F 2nd 832
- ^ United States v. Martino (CA 5 Fla) 648 F 2nd 367
- ^ United States v. Consolidated Packaging Corp. (CA 7 Ill) 575 F 2nd 117
- ^ United States v. Hodges CA 5 Fla 556 F 2nd 366
- ^ United States v. Calhoun (CA 9Cal), 542, F 2nd 1094, cert den 429 US 1064
- ^ United States v. Bodabilla-Lopez (CA 9 Cal) 954 F 2nd 519
- ^ United States v. Anderson (CA 9 Cal) 813 F 2nd 1450
- ^ United States v. Fanning (CA 5 Fla) 477, F 2nd 45, reh den (CA 5 Fla) 477, F 2nd 596 and cert den 414 US 1006
- ^ United States v. Merlino (CA 5 Fla) 595 F 2nd 1016, reh den CA 5 Fla, 603, F 2nd 860 and cert den 444 US 1071
- ^ United States v. Pastor SD NY, 419 F Supp 1318
- ^ United States v. Cruz (CA 5 Fla) 478 F 2nd 408, reh den (CA 5 Fla) 478, 1043 and cert den (CA 5 Fla) 414 US 910
- ^ United States v. Anderson DC Md 368 F Supp 1253
- ^ United States v. Dixon DC Del 63 FRD 8
- ^ United States v. Anderson DC Md. 368, F Supp 1253
- ^ United States v. Duffy DC Ill 54, FRD 549
- ^ 38 Am Jur 2nd “Grand Jury” sections 39 et seq
- ^ Menendez v. United States (CA 5 Fla) 393 F 2nd 312 cert den 393 US 1029
- ^ United States v. Ramirez (CA 2 NY) 482, F 2nd 807, cert den 414 US 1070
- ^ United States v. Tellier (CA 2 NY) 255 F 2nd 441, cert den 358 US 821
- ^ United States v. Atkinson (CA 4 NC) 512 F 2nd 1235
- ^ 1 ALR Fed 252
- ^ United States v. Simmons (CA 2 NY) 281, F 2nd 354
- ^ United States v. Peterson (CA 4 Va) 524, F 2nd 167, cert den. 423 US 1988
- ^ United States v. Burke (CA 9 Cal) 506, F 2nd 1165, cert den 421, US 915
- ^ United States v. Clay (CA 7 Ill) 495, F 2nd 700, cert den 419 937
- ^ 29 A Am Jur 2nd “Evidence” section 1163
- ^ Beaudine v. United States (CA5 Fla) 414 F 2nd 397, reh den (CA5 Fla) 418 F 2nd 500, cert den 397 US 987
- ^ Gregory v. United States 125 US App DC 140, 369 F 2nd 185
- ^ Ogden v. United States (CA 9 Cal) 303 F 2nd 724, cert den 376 US 973
- ^ Campbell v. United States 365 US 85
- ^ United States v. Resnick (CA 5 Fla) 483 F 2nd 354, cert den 414 US 1008
- ^ United States v. Conroy (CA 5 Fla) 589 F 2nd 1258
- ^ Saunders v. United States 114 US App DC 345, 316 F 2nd 346 cert den 377 US 935
- ^ Ogden v. United States (CA 9) Cal 323 F 2nd 818 cert den 376 US 973
- ^ United States v. Cathey (CA 5 Fla) 591 F 2nd 268
- ^ Palermo v. US 360 US 343
- ^ United States v. Gallagher (CA 3 NJ) 576 F 2nd 1028
- ^ United States v. Clark (CA2 NY) 765 F 2nd 297
- ^ United States v. Graves CA 5 Fla 428, F 2nd 196 cert den 400 US 960
- ^ Campbell v. US 365 United States 85
- ^ Palermo v. United States 360 US 343, 79 SC 1217
- ^ United States v. Allen (CA7 Ill) 798 F 2nd 985
- ^ 18 USCS section 3500 at (c)
- ^ Campbell v. United States 365, US 85
- ^ United States v. Smaldone (CA 10 Colo) 484 F 2nd 311, cert den 415 US 915
- ^ Williams v. United States 117 US App DC 206, 328 F 2nd 178
- ^ 5 ALR 3rd 746
- ^ 18 USCS section 3500 (c)
- ^ United States v. Warme CA2 NY 572 F 2nd 57, cert den 435 US 1011
- ^ West v. United States CA6 Ohio 274, F 2nd 885
- ^ Ogden v. United States CA 9 Cal. 303 F 2nd 724
- ^ Goldberg v. United States 425 US 94, 96 SC 1338
- ^ 19 USCS section 3500 (c)
- ^ United States v. Gantt 199 IS App DC 249, 617 F 2nd 831
- ^ 5 Fed Rules Evid Serv 553
- ^ United States v. Kuykendall CA8 Mo. 633, F 2nd 118
- ^ United States v. Sanchez CA2 NY 635, F 2nd 47
- ^ Jump up to:a b United States v. Pope CA 6 Ohio 574, F 2nd 320, cert den 436 US 929
- ^ United States v. McKenzie CA 5 Tex 768 F 2nd 602, cert den 474 US 1086, 196 SC 861
- ^ United States v. Izzi CA1 Puerto Rico 613, F 2nd 1205, cert den 446 US 940
- ^ United States v. Morrison CA 7 Wis 946 F 2nd 484 reh en banc, den CA 7 1991 US App.
- ^ US v. Litman WD Pa 547 F Supp 645
- ^ US v. Phillips CA 7 Wis 854, F 2nd 273
- ^ 360 US 367, 79 SC 1231
- ^ Jump up to:a b c 5 ALR 3rd 781
- ^ United States v. Ellenbogen (CA 2 NY) 341, F 2nd 893
- ^ United States v. Borelli CA 2 NY 336 F 2nd 376 cert den 379 US 960, 13 L Ed 2 nd 555, 85 S. Ct. 647 source
The Jencks Act – The Ethical, Effective Assistance of Counsel –
Brady v. Maryland, 373 U.S. 83 (1963)
Jencks Act
Brady v. Maryland, 373 U.S. 83 (1963)
Rule 3.8 Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall …
(d) make timely disclosure to the defenses of all evidence or information known that tends to negate the guilt … mitigate the offense … except …. when relieved of this responsibility by a protective order of the tribunal
Brady v. Maryland, 373 U.S. 83 (1963)
ABA Rules of Professional Conduct
(a) Counsel shall make it clear to the client that the client must make the ultimate decision whether to plead guilty. Counsel should investigate and explain to the client the prosepective strengths and weaknesses of the case for the prosecution and defense … counsel should not base a recommendation of a plea of guilty solely upon the client’s knowledge of guilt or solely upon a favorable disposition offer.
ABA Guideline 6.3 —
Decison to Enter a Plea of Guilty
Ethical Considerations
Brady v. Maryland, 363 U. S. (1963)
- Time of Tender — “for use at trial”
- Timeliness should be in order to use during preparation
- Virginia LEO 1862
Brady v. Maryland,
373 U.S. 83 (1963)
The Ethical, Effective Assistance of Counsel, and Jencks Act Consequences of Brady v. Maryland and its Progeny
What is Brady Information?
Conclusion
Questions
Brady v. Maryland, 363 U.S. (1963)
Motion for Court Monitored Brady Tender Should:
Require the prosecution to admit or deny, either in writing or on the record, the existence of each specific and enumerated item of Brady requested information sought by the defense.
Require the prosecution to submit in camera, ex parte review, on the sealed record, any requested specific exculpating, mitigating, or impeaching information it wishes to withhold because the prosecution believes the information is not “material” to the outcome under Brady or the disclosure would cause a public or witness security concern.
Brady v. Maryland, 363 U.S. (1963)
Making the Brady Record
- Timeliness
- If something pops in a Brady tender which changes your defense hypothesis or which gives rise to a new defense hypothesis, move for continuance and object, object, object!
- Exculpatory Information
- Impeachment Evidence
- Mitigating Evidence
The Brady Motion
A general Brady request is totally worthless for appeal or habeas. U.S. v. Agurs, 427 U.S. 97 (1976)
A specific Brady request — the prosecution is “seldom, if ever” excused from complying, irrespective of good or bad faith on the part of the prosecution. U. S. v. Agurs, 427 U.S. 97 (1976)
Note this standard triggers the prosecution’s proving beyond a reasonable doubt that denial of tender did not affect the verdict.
All Brady information known to the government
Pointless and no constitutional or record protection except to the most basic and obvious Brady information, such as a confession from someone else or a statement from a witness that someone else committed the offense
- You cannot provide effective assistance of counsel without tender of all Brady during trial preparation and before plea negotiation
- Guilty plea must conform with effective assistance of counsel standards. Missouri v. Frye, 132 U.S. 1399 (2012)
- Guilty plea waiver of rights must be intelligently, knowingly, and deliberately made. U. S. v. Zerbst
Require the prosecution to admit or deny, either in writing or on the record, the specific steps taken to comply with Kyles v. Whitley, 514 U.S. 419 (1995) to determine the existence of specific requested Brady information from the files and writings of law enforcement.
Brady v. Maryland, 363 U.S. (1963)
- Exculpating Evidence
- Impeaching Evidence
- Mitigating Evidence
The Court will issue written orders and findings for fact and conclusions of law regarding each specific Brady request made by the defense.
Evidence which suggests that someone else committed the offense
Information which reduces the grade of offense or punishment, e.g. from murder to manslaughter, or a lesser weight of drug cases
Any evidence that would bring into question the credibility of any government witness, inconsistent witness statements, or prior inconsistent statements by a witness