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Discovery Issues in Federal Criminal Court
By: Bill E. Branscum
© Copyright 1999

This is an extraordinarily complex subject addressed here by an investigator in an effort to help other investigators better understand the issues. This is not, nor is it intended to be, a Memorandum of Law. Legal scholars have spent much time and effort debating these issues and the author proposes to leave it to them to work out the fine points.

     Federal procedural rules are dramatically different than the discovery related procedures common to many states. The federal government is not required to "lay out" it's case to the defense and provide their witnesses for deposition. The federal system allows, and arguably promotes, trial by ambush.

     The rules related to discovery in federal criminal cases are set forth in Rule 16, of the Federal Rules of Criminal Procedure. If the Defendant specifically requests it, he is entitled to receive inspect, copy or photograph:

1. Any statements he may have made, whether written or recorded, that are in the possession of the government

2. The Defendant's prior record as known or available to the government

3. Documents and tangible objects that are material to either the prosecution's case or the Defendant's defense

4. The results of any tests or reports of examination that are material to either the prosecution's case or the Defendant's defense

     The Defendant must bear in mind that initiating the request for documents, test results, tangible objects and so forth obligates him to reciprocate. In effect, the Defense gets to decide whether both sides play with certain cards face up or face down.

Generally speaking, in addition to the foregoing, there are three categories of information to which the defense is entitled in a federal case.

1. Exculpatory material; see Brady v. Maryland, 373 U.S. 83 (1963)

2. Impeachment material; see Giglio v. United States, 405 U.S. 150 (1972)

3. Prior statements of witnesses; see the Jencks Act, Title 18, §3500

     In response to the clearly established affirmative obligation to provide the Defense with these materials, the Office of the United States Attorney typically relies upon the boilerplate assertion that, "we are aware of our obligations." There is a substantial difference between awareness and compliance.

     There are those who would argue that it is unwise to depend upon the benevolence of the prosecutor. In 1994 U.S. District Judge Reena Raggi fined the U.S. Attorney's Office for the Eastern District of New York in United States v. Prince, 93 CR 1073, stating that there were "too many cases . . . in which this court has had to deal with difficulties created by the government's late disclosure of material to which the defense is entitled by law."

"The problem appears to be institutional and inadequately acknowledged by the U.S. Attorney's Office." (Slip. Op. at 20 EDNY Jan. 28, 1994). As recently as August 1997, the Second Circuit vacated a conviction due to governmental violations of its Brady obligation (United States v. Vozzella, 124 F3d 389 (2d Cir. 1997)).

     Compliance related issues notwithstanding, the question is, "what should the government be turning over to the defense?"

Brady/Giglio vis-a-vis Jencks

     It is not the prosecutor's job to convict defendants; the prosecutor has an obligation to pursue the truth and further the interests of justice. Therefore, as set forth in Brady v. Maryland, 373 U.S. 83 (1963), the government has an obligation to provide the defense with any evidence it finds that tends to establish the innocence of the accused.

     It is clearly established that the government has an affirmative obligation to produce exculpatory information before the case goes to trial, whether the Defense specifically requests it or not. Nevertheless, should the matter become the subject of an appeal, the Defense's position is strengthened by a showing that they expressly requested materials that were not provided, see United States v Agurs, 427 U.S. 97 (1976).

     In addition to evidence that tends to establish the innocence of the accused, the government has an affirmative obligation to provide the defense with evidence that tends to undermine the credibility of their witnesses as set forth in Giglio v. United States, 405 U.S. 150 (1972). This is referred to as impeachment evidence.

     What, one might well ask, is the difference between exculpatory evidence and impeachment evidence? Given a witness that says he saw you rob a store - is evidence that shows you were somewhere else (exculpatory evidence) substantially different than evidence that shows he was somewhere else (impeachment evidence)?

     In United States v. Bagley, 473 U.S. 667 (1985), the Supreme Court held that for Brady purposes, there is no difference between exculpatory evidence and impeachment evidence. Supreme Court Justice Harry Blackmun specifically stated:

     "the Court of Appeals treated impeachment evidence as constitutionally different from exculpatory evidence . . . This Court has rejected any such distinction between impeachment evidence and exculpatory evidence." Id. at 676.

     In addition to requesting exculpatory evidence and information that might adversely impact upon the credibility of any potential witnesses, the Defense is entitled to any information that could adversely impact upon the credibility of the law enforcement officers involved.

     In U.S. v. Henthorn, 931 F.2d 29, the Ninth Circuit held that the government has a duty to make a pretrial examination of the personnel files of testifying law enforcement officers for Brady material. Although they subsequently held (in Jennings) that an Assistant U.S. Attorney (AUSA) could not be ordered by a district judge to conduct that examination personally, the subsequent decision in Kyles v. Whitley, 115 S.Ct. 1555 (1995):

     "places squarely on the individual prosecutor the duty of personally becoming aware of Brady material in the possession of the government."

     This position was further enforced in United States v. Alvarez, 86 F3d 901, 904 (9th Cir. 1996) where the Ninth Circuit reiterated that federal prosecutors have an affirmative responsibility to personally seek out Brady material rather than delegating responsibility for the search to investigators.

     In other words, the Office of the United States Attorney has an affirmative responsibility to ferret out exculpatory evidence, impeachment material and derogatory information that may exist in the personnel files of the government agents involved.

     This would all be pretty clear were it not for the Jencks Act as codified in Title 18 USC § 3500, entitled Demands for Production of Statements and Reports of Witnesses which states in pertinent part that:

(a) 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 said witness has testified on direct examination in the trial of the case.

(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified

(c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera . . .

(d) If the United States elects not to comply with an order of the court under subsection (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.

(e) The term ''statement'', as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means -

(1) a written statement made by said witness and signed or otherwise adopted or approved by him;

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

(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.

     In other words, Jencks muddies the water with regards to witness statements. Suppose the guy who says he saw you rob the store gave a sworn statement to police immediately after the robbery in which he says he was in another state hunting deer with you at the time.

     Is his initial statement Brady material in that it could be used in your defense (you were someplace else) or is it Giglio material in that a prior sworn inconsistent statement (showing he was either somewhere else or lies under oath) is valuable impeachment material. Either way, the defense is entitled to it.

     What if the prosecution adopts the position that the prior statement is not available until after the witness actually testifies as per Jencks. This is no minor point of distinction when examined from a real world perspective. I offer you the following example.

     Suppose you wake up this morning at 5am to be greeted by the Marshal Service executing a warrant for your arrest. The government contends that you were involved in narcotics trafficking as well as the associated conspiracies to import, possess with intent to distribute and launder the proceeds thereof. You could be looking at spending the rest of your life in jail.

     Suppose your indictment was based solely upon the testimony of three ne'er-do-wells who currently reside at a federal correctional facility due to certain narcotics related indiscretions of their own. You have no idea who is saying what and won't find out until trial.

     Further suppose, arguendo, that these three lying desperados are desperately trying to inculpate anyone they can think of in an effort to see daylight in time to enjoy it. One of them came up with your name and the other two jumped on board hoping to deal away jail time; all three made numerous and sundry previous statements regarding their criminal activities that never mentioned your name before.

     In fact, let us suppose that any rational person looking at these prior inconsistent statements would immediately recognize that their recent allegations conflict with everything previously stated and formerly believed to be true. The fact is, an unethical prosecutor indicted you, knowing he had no sustainable case, but hoping you could be compelled to help make a case against your neighbor, the target of several unrelated investigations. You were indicted just because you happen to live next door.

     The VERY best possible scenario for you is that you manage to get the prosecutor fired for prosecutorial misconduct after spending your life savings defending a bogus allegation. There is a worst possible case scenario.

     What do you do when your attorney explains that the government has three witnesses who will swear under oath that you are guilty of all charges alleged. With your life hanging in the balance, you can roll the dice or plea to some nominal charge and spend a few years in jail. What are you likely to do?

     Fortunately, the Office of the United States Attorney is generally staffed with people of character and integrity. They also have an Office of Professional Responsibility intended to "police the police." It is a rare AUSA that would so blatantly violate their Oath of Office and betray their obligation to the American public. On the other hand, it has happened and is certain to happen again.

     I hope that my fellow investigators have found this useful and informative. Although the existing system encourages defendants to hire investigators, I personally would welcome legislation requiring more reasonable discovery in federal criminal cases.


Bill Branscum is a licensed Private Investigator and owner of Oracle International, an investigative agency he established in Naples, Florida following his career as a federal agent. His experience includes investigations related to narcotics smuggling, money laundering, securities fraud, the unlawful exportation of critical technology, the sexual exploitation of children and contract murder.

Oracle International maintains a web site at http://www.OracleInternational.com.

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