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.
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
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
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
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
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)).
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.
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
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):
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
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
(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
(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
(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
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.
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
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?
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.
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.
International maintains a web site at http://www.OracleInternational.com.
to "Articles" menu
to "Main Page"